IN RE: the Claim of Barbara K. DeANGELO

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

IN RE: the Claim of Barbara K. DeANGELO, Appellant. Commissioner of Labor, Respondent.

Decided: August 07, 2008

Before:  MERCURE, J.P., PETERS, CARPINELLO, KANE and STEIN, JJ. Barbara K. DeAngelo, East Rockaway, appellant pro se. Andrew M. Cuomo, Attorney, New York City (Marjorie S. Leff of counsel), for respondent.

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

 Substantial evidence supports the Unemployment Insurance Appeal Board's decision ruling that claimant, the president and sole shareholder of a subchapter S corporation engaged in the business of supplying and stocking vending machines, was ineligible to receive unemployment insurance benefits because she was not totally unemployed.  “It is well settled that a corporate officer who performs activities in connection with the winding up of a corporation will not be considered totally unemployed, even if his or her activities in this regard are minimal” (Matter of Hinds [Commissioner of Labor], 48 A.D.3d 874, 875, 851 N.Y.S.2d 286 [2008] [internal quotation marks and citations omitted];  see Matter of Downton [Commissioner of Labor], 45 A.D.3d 1088, 1089, 846 N.Y.S.2d 413 [2007] ).   During the relevant time period, claimant prepared the final corporate tax return and filed the dissolution paperwork, primarily in an effort to facilitate her receipt of unemployment insurance benefits, in addition to writing checks for equipment repairs and state franchise taxes.   As of the date of the hearing, the corporation had not been formally dissolved, the corporate checking account-on which claimant was the sole signatory-remained open with a balance of approximately $2,500, the corporation's post office box was still in existence and approximately 10 vending machines remained at their respective locations.   Under such circumstances, the Board quite properly concluded that claimant was not totally unemployed (see Matter of Downton [Commissioner of Labor], 45 A.D.3d at 1088-1089, 846 N.Y.S.2d 413;  Matter of Tyk [Sweeney], 220 A.D.2d 907, 908, 632 N.Y.S.2d 681 [1995];  compare Matter of Haseltine [Commissioner of Labor], 30 A.D.3d 938, 939, 817 N.Y.S.2d 445 [2006] [no evidence that the claimant performed any activities on behalf of the business during the period she collected benefits] ). Contrary to claimant's assertion, actual financial gain is not a prerequisite to a finding that a claimant is not totally unemployed (see Matter of Rance [Hudacs], 196 A.D.2d 930, 930, 602 N.Y.S.2d 236 [1993] ).

ORDERED that the decision is affirmed, without costs.

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