IN RE: the Claim of Joseph H. FANARA

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

IN RE: the Claim of Joseph H. FANARA, Appellant. John E. Sweeney, as Commissioner of Labor, Respondent.

Decided: February 27, 1997

Before CARDONA, P.J., and WHITE, YESAWICH, PETERS and SPAIN, JJ. Edward F. Crumb, Binghamton, for appellant. Dennis C. Vacco, Attorney-General (William R. Derasmo, of counsel), New York City, for respondent.

Appeal from a decision of the Unemployment Insurance Appeal Board, filed October 26, 1995, which, inter alia, ruled that claimant was ineligible to receive unemployment insurance benefits because he was not totally unemployed.

Prior to becoming unemployed in March 1992, claimant, a licensed realtor, formed Riversedge Realty, a sole proprietorship engaged in the business of acquiring land for cellular telephone service providers.   When he applied for benefits, claimant failed to report the existence of this business but thereafter did certify that he worked for it on two days in 1992.   Subsequently, the Unemployment Insurance Appeal Board found claimant ineligible to receive unemployment insurance benefits on the ground that he was not totally unemployed, charged him with a recoverable overpayment of $13,800 and assessed a penalty of 180 benefit days because he willfully made false statements.

 Substantial evidence supports the finding of the Board that claimant was not totally unemployed for the record shows that he had business cards printed, maintained a checking account for the business against which he wrote several checks, prepared proposals and submitted them to various cellular telephone service providers, claimed various business expenses as deductions on his personal income tax return and maintained membership in a real estate multiple listing service, activities designed to produce income (see, Matter of Wahler [Sweeney], 233 A.D.2d 739, 650 N.Y.S.2d 358, 359;  Matter of Albignano [Sweeney], 232 A.D.2d 810, 648 N.Y.S.2d 751;  Matter of Bryant [Sweeney], 231 A.D.2d 797, 647 N.Y.S.2d 125, 126).

 While claimant did disclose that he spent one day at a real estate closing and another preparing his proposals, he did not report the other activities he performed on behalf of his business.   Accordingly, we conclude that the Board's finding that claimant made willful misrepresentations is supported by substantial evidence (see, Matter of Moskowitz [Sweeney], 232 A.D.2d 810, 648 N.Y.S.2d 190;  Matter of Trippodi [Sweeney], 232 A.D.2d 715, 648 N.Y.S.2d 49, 50;  Matter of Tomeo [Hudacs], 209 A.D.2d 809, 810, 618 N.Y.S.2d 153).

We have examined claimant's remaining contentions and find them to be without merit.

ORDERED that the decision is affirmed, without costs.


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