IN RE: the Claim of Kevin A. ROBINSON

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

IN RE: the Claim of Kevin A. ROBINSON, Appellant. Commissioner of Labor, Respondent.

Decided: July 22, 2004

Before:  CREW III, J.P., PETERS, CARPINELLO, MUGGLIN and ROSE, JJ. Kevin A. Robinson, Rochester, appellant pro se. Eliot Spitzer, Attorney General, New York City (Mary Hughes of counsel), for respondent.

Appeal from a decision of the Unemployment Insurance Appeal Board, filed November 17, 2003, which ruled that claimant was ineligible to receive unemployment insurance benefits because he was not totally unemployed.

Substantial evidence supports the decision of the Unemployment Insurance Appeal Board finding that claimant was ineligible to receive unemployment insurance benefits because he was not totally unemployed.   The record establishes that claimant operates a small business selling fragrances and body oils.   As part of his business venture, claimant maintained a business checking account, passed out business cards, sold products to clients and regularly placed orders for the products.   Claimant is looking to expand the business, possibly by opening a small store, and intends to claim any net losses or gains on his personal income tax return.   Although claimant testified that his business is not yet profitable, he nevertheless stood to gain financially from the continued operation of the business (see Matter of Rhode [Commissioner of Labor], 274 A.D.2d 725, 726, 710 N.Y.S.2d 724 [2000] ).   Under these circumstances we find no reason to disturb the Board's decision that claimant's activities constitute employment within the meaning of the Labor Law (see Matter of Standig [Commissioner of Labor], 3 A.D.3d 828, 771 N.Y.S.2d 260 [2004];  Matter of Rhode [Commissioner of Labor], supra at 726, 710 N.Y.S.2d 724).

ORDERED that the decision is affirmed, without costs.

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