IN RE: the Claim of Gina S. LUONGO

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

IN RE: the Claim of Gina S. LUONGO, Appellant. Commissioner of Labor, Respondent.

Decided: October 26, 2000

Before:  CARDONA, P.J., MERCURE, CARPINELLO, GRAFFEO and ROSE, JJ. Gina S. Luongo, New Fairfield, Connecticut, appellant in person. Eliot Spitzer, Attorney-General (Linda D. Joseph of counsel), New York City, for respondent.

Appeal from a decision of the Unemployment Insurance Appeal Board, filed June 30, 1999, which, inter alia, ruled that claimant was ineligible to receive unemployment insurance benefits because she was not totally unemployed.

Shortly after filing an original claim for unemployment insurance benefits in July 1998, claimant and two others consulted an attorney about incorporating a subchapter S corporation.   A certificate of incorporation was filed on August 18, 1998, with claimant, a one-third shareholder, named as president.   Thereafter, claimant and her partners decided to open a coffee house.   Claimant initially invested $11,000, and while certifying for unemployment insurance benefits, she performed various services related to the start-up of this business such as signing a lease in her capacity as a corporate officer and opening a business checking account.   Claimant did not inform the local unemployment insurance office of her involvement in the new business until October 7, 1998, allegedly because “there [were] no activities dedicated to the business until that time”.   The Unemployment Insurance Appeal Board found claimant ineligible to receive unemployment insurance benefits on the ground that she was not totally unemployed and charged her with a recoverable overpayment of benefits pursuant to Labor Law § 597(4).

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), as well as the separate finding that the overpayment of benefits is recoverable.   Notably, claimant admitted reading the information booklet distributed by the local unemployment office, which clearly instructs claimants to give notification “as soon as [they] take any steps to start a business” (emphasis supplied).   Thus, despite claimant's assertion that the instruction was ambiguous, we find support for the Board's conclusion that claimant had constructive knowledge that activities taken in preparation of commencing a business could constitute employment or self-employment (see, Matter of Pinto [Commissioner of Labor], 258 A.D.2d 804, 685 N.Y.S.2d 872).

ORDERED that the decision is affirmed, without costs.


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