IN RE: the Claim of Donald J. SEXTON

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Supreme Court, Appellate Division, Third Department, New York.

IN RE: the Claim of Donald J. SEXTON, Appellant. Commissioner of Labor, Respondent.

Decided: May 22, 2008

Before:  MERCURE, J.P., SPAIN, ROSE, MALONE JR. and STEIN, JJ. Donald J. Sexton, Norwalk, Connecticut, appellant pro se. Andrew M. Cuomo, Attorney General, New York City (Mary Hughes of counsel), for respondent.

Appeal from a decision of the Unemployment Insurance Appeal Board, filed February 12, 2007, which, among other things, ruled that claimant was ineligible to receive unemployment insurance benefits because he was not totally unemployed.

Substantial evidence supports the Unemployment Insurance Appeal Board's ruling that claimant was not totally unemployed and, thus, was ineligible to receive unemployment insurance benefits (see Matter of Croce [Commissioner of Labor], 48 A.D.3d 869, 869, 851 N.Y.S.2d 292 [2008] ).   The record discloses that, during the benefits period, claimant engaged in ongoing activities associated with his lighting supply business, including purchasing various lighting materials as well as soliciting business.   Claimant's assertion that he purchased the lighting supplies for personal use created a credibility issue for resolution by the Board (see Matter of Landry [Commissioner of Labor], 45 A.D.3d 1020, 1021, 845 N.Y.S.2d 851 [2007] ).   Given the foregoing, and notwithstanding claimant's assertion that the business was not profitable, claimant was not totally unemployed within the meaning of Labor Law § 591(1) (see Matter of Moreira-Brown [Commissioner of Labor], 36 A.D.3d 987, 988, 826 N.Y.S.2d 512 [2007] ).   Substantial evidence also supports the Board's finding that claimant made willful misrepresentations to obtain benefits, thereby warranting the imposition of a recoverable overpayment and forfeiture of future benefits (see Matter of Ibrahim [Commissioner of Labor], 45 A.D.3d 1128, 1129, 846 N.Y.S.2d 452 [2007] ).

ORDERED that the decision is affirmed, without costs.

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