IN RE: the Claim of Edwin MOREIRA Jr.

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

IN RE: the Claim of Edwin MOREIRA Jr., Appellant. Commissioner of Labor, Respondent.

Decided: June 25, 1998

Before CARDONA, P.J., and MIKOLL, CREW, WHITE and PETERS, JJ. Edwin Moreira, Jr., Bridgeport, in person. Dennis C. Vacco, Attorney General (Marjorie S. Leff, of counsel), New York City, for respondent.

Appeal from a decision of the Unemployment Insurance Appeal Board, filed September 19, 1997, which, inter alia, 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 not totally unemployed during the periods that he was receiving benefits and charging him with a recoverable overpayment.   The record indicates that claimant filed a business certificate for a tree trimming and tree removal business in 1989.   Although claimant testified that he never pursued the business, the record establishes that he failed to file a certificate of discontinuance.   Moreover, claimant filed a schedule C (business income and loss) with his tax returns during the years that he had received benefits, reporting small net profits and obtaining tax advantages for operating his business.   Although claimant and his accountant testified that the schedule C forms were improperly filed and that amended tax returns for the years in question had been prepared, claimant failed to produce the amended tax returns although specifically asked to do so (see, e.g., Matter of Ikoli [Commissioner of Labor], 249 A.D.2d 673, 671 N.Y.S.2d 206;   Matter of Polax [New York City Dept. of Correction-Sweeney], 220 A.D.2d 919, 632 N.Y.S.2d 318).   While claimant submits the documents on appeal, we decline to consider evidence not presented at the hearings or to the Board.   Based upon our review of the record, we find no reason to disturb the Board's decision (see, Matter of Murak [Sweeney], 244 A.D.2d 751, 664 N.Y.S.2d 661;  Matter of Monro [Sweeney], 235 A.D.2d 885, 653 N.Y.S.2d 46).

ORDERED that the decision is affirmed, without costs.

MEMORANDUM DECISION.

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