IN RE: the Claim of Arlynn J. GREENBAUM

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

IN RE: the Claim of Arlynn J. GREENBAUM, Appellant. Commissioner of Labor, Respondent.

Decided: January 28, 1999

Before:  CREW III, J.P., YESAWICH, JR., PETERS, SPAIN and CARPINELLO, JJ. Arlynn J. Greenbaum, New York City, appellant in person. Eliot Spitzer, Attorney-General (Linda D. Joseph of counsel), New York City, for respondent.

Appeals from two decisions of the Unemployment Insurance Appeal Board, filed July 30, 1997 and September 9, 1998, which, upon reconsideration, ruled, inter alia, that claimant was ineligible to receive unemployment insurance benefits because she was not totally unemployed.

 Substantial evidence supports the decision of the Unemployment Insurance Appeal Board finding, inter alia, that claimant was not totally unemployed during part of the period she was collecting unemployment insurance benefits.1  During the relevant time period, claimant incorporated a business and became the corporation's president and sole shareholder.   Although claimant's activities on behalf of her fledgling business, which included, inter alia, opening a corporate checking account, leasing an office and purchasing a computer and business stationery, initially were unprofitable, “this does not preclude a finding that claimant was not totally unemployed and that she stood to gain financially from the continued operation of the business” (Matter of Johnston [Commissioner of Labor], 253 A.D.2d 949, 950, 678 N.Y.S.2d 160, 161).   In addition, inasmuch as claimant failed to disclose her corporate activities when certifying for benefits until after she received a business principal questionnaire, the Board's finding that claimant made willful false statements during the relevant period prior to this disclosure and its assessment of a recoverable overpayment are supported by substantial evidence (see, id.).   Claimant's remaining contentions have been examined and found to be lacking in merit.

ORDERED that the appeal from the decision entered July 30, 1997 is dismissed, as moot, without costs.

ORDERED that the decision entered September 9, 1998 is affirmed, without costs.


1.   Although claimant filed a notice of appeal from a July 30, 1997 decision of the Board, the Board later granted reconsideration and, in a September 9, 1998 decision, modified its prior decisions to the extent of limiting the period of claimant's ineligibility and the amount of recoverable overpayment to the period before claimant's January 29, 1992 disclosure to the local unemployment office regarding her lack of total unemployment.   In light of these developments and claimant's appeal of the September 1998 decision, we deem the appeal from the July 1997 decision to be moot.


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