IN RE: the Claim of Lloyd S. DALEY Sr.

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

IN RE: the Claim of Lloyd S. DALEY Sr., Appellant. Commissioner of Labor, Respondent.

Decided: February 25, 1999

Before:  CREW III, J.P., YESAWICH JR., PETERS, SPAIN and CARPINELLO, JJ. Lloyd S. Daley Sr., Lauderhill, Florida, appellant in person. Eliot Spitzer, Attorney-General (Bessie Bazile of counsel), New York City, for respondent.

Appeal from a decision of the Unemployment Insurance Appeal Board, filed September 5, 1997, which, inter alia, ruled that claimant was ineligible to receive unemployment insurance benefits because he was not totally unemployed.

While collecting unemployment insurance benefits, claimant performed various services on behalf of a subchapter S corporation of which he was the sole shareholder and president.   The corporation owned a restaurant in Florida, which was managed by claimant's brother.   Although claimant testified that his activities on behalf of the business were minimal, he was the only person authorized to write checks for the corporation and did so during the applicable period.   Claimant also met with his accountant once a month regarding the business and spoke with his brother once a week concerning the management of the restaurant.   Claimant also flew down to visit the business once a month to “make up payroll”.   After claimant moved to Florida, his activities in furtherance of the business increased.   The Unemployment Insurance Appeal Board ultimately found claimant ineligible to receive unemployment insurance benefits on the ground that he was not totally unemployed.   Inasmuch as claimant had disclosed his interest in the business, the Board concluded that claimant had not made willful false statements to obtain benefits but nevertheless charged him with a recoverable overpayment of benefits.

We affirm.   Substantial evidence supports the Board's assessment of claimant's credibility and the inferences drawn from the evidence presented (see, Matter of Falco [Sweeney], 246 A.D.2d 711, 667 N.Y.S.2d 499, lv. denied 92 N.Y.2d 815, 683 N.Y.S.2d 759, 706 N.E.2d 747).   Although claimant's activities on behalf of the active corporation were not extensive, the Board was within its province in concluding that they fell within the parameters of proscribed activity in this context (see, e.g., Matter of Breitrose [Commissioner of Labor], 246 A.D.2d 930, 678 N.Y.S.2d 152;  Matter of Loffredo [Sweeney], 231 A.D.2d 799, 647 N.Y.S.2d 580).   The remaining arguments raised by claimant have been examined and found to be unpersuasive.

ORDERED that the decision is affirmed, without costs.


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