IN RE: the Claim of Marvin SCHENKER

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

IN RE: the Claim of Marvin SCHENKER, Appellant. Commissioner of Labor, Respondent.

Decided: June 21, 2001

Before:  CARDONA, P.J., MERCURE, CARPINELLO, MUGGLIN and ROSE, JJ. Marvin Schenker, Far Rockaway, appellant in person. Eliot Spitzer, Attorney-General, (Steven Segall of counsel), New York City, for respondent.

Appeals (1) from a decision of the Unemployment Insurance Appeal Board, filed February 22, 2000, which, inter alia, ruled that claimant was ineligible to receive unemployment insurance benefits because he was not totally unemployed, and (2) from a decision of said Board, filed March 30, 2000, which, upon reconsideration, adhered to its prior decision.

At the time claimant filed an original claim for unemployment insurance benefits in July 1999, he was the president and sole owner of a computer consulting corporation formed in January 1998.   The Unemployment Insurance Appeal Board ultimately found claimant ineligible to receive unemployment insurance benefits on the ground that he was not totally unemployed and charged him with a recoverable overpayment of benefits.

 We affirm.   Substantial evidence supports the Board's decision that claimant was ineligible to receive unemployment insurance benefits (see, Matter of Donaghy [Commissioner of Labor], 264 A.D.2d 883, 695 N.Y.S.2d 203;  Matter of Halper [Commissioner of Labor], 262 A.D.2d 848, 692 N.Y.S.2d 232).   The record reveals that during the time that claimant was receiving unemployment insurance benefits, he wrote checks on behalf of the corporation to pay for business-related expenses and attempted to solicit work.   Although claimant's activities on behalf of the corporation during the applicable time period were neither extensive nor profitable, “this does not preclude a finding that claimant was not totally unemployed and that [he] 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;  see, Matter of Halper [Commissioner of Labor], supra).   To the extent that claimant testified that the corporation was a shell to permit him to seek full-time employment, this presented a credibility issue for the Board to resolve (see, Matter of Donaghy [Commissioner of Labor], supra;  Matter of Murak [Sweeney], 244 A.D.2d 751, 752, 664 N.Y.S.2d 661).   Finally, inasmuch as claimant failed to report his activities on behalf of the corporation, despite having received the unemployment insurance information handbook which explained the reporting requirements, the benefits received are properly recoverable (see, Matter of Luongo [Commissioner of Labor], 276 A.D.2d 996, 714 N.Y.S.2d 599).   Claimant's remaining contentions have been examined and found to be unpersuasive.

ORDERED that the decisions are affirmed, without costs.

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