                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: May 14, 2015                      518505
________________________________

In the Matter of PERRY P.
   O'CONNELL,
                    Appellant.
                                            MEMORANDUM AND ORDER
COMMISSIONER OF LABOR,
                    Respondent.
________________________________


Calendar Date:   March 25, 2015

Before:   Lahtinen, J.P., McCarthy, Garry and Lynch, JJ.

                             __________


      Cynthia Feathers, Pro Bono Appeals Program, Albany (Alan J.
Pierce of counsel), for appellant.

      Eric T. Schneiderman, Attorney General, New York City
(Marjorie S. Leff of counsel), for respondent.

                             __________


Garry, J.

      Appeal from a decision of the Unemployment Insurance Appeal
Board, filed May 28, 2013, which ruled that claimant was
disqualified from receiving unemployment insurance benefits
because he voluntarily left his employment without good cause.

      In 2012, claimant decided to close a catering business that
he had operated for 34 years as a subchapter S corporation. His
subsequent application for unemployment insurance benefits was
ultimately denied by the Unemployment Insurance Appeal Board on
the ground that he voluntarily left his employment without good
cause. Claimant now appeals.

      We affirm. "When a claimant closes an operating business,
the issue of whether he or she is qualified to receive benefits
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turns upon whether there was a compelling reason to close the
business" (Matter of Pitic [Commissioner of Labor], 249 AD2d 671,
671 [1998] [citation omitted]; accord Matter of Lowman
[Commissioner of Labor], 101 AD3d 1282, 1283 [2012]). Here,
claimant testified that, beginning in 2009, his business began to
decline and that, between 2009 and 2012, there was a 50% drop-off
of catering contracts. The corporation's tax returns reflect,
however, gross receipts of $297,167 in 2009, with a net income of
$2,522, gross receipts of $281,397 in 2010, with a net income of
$4,997, and gross receipts of $279,755 in 2011, with a net income
of $764. Claimant's individual tax returns reveal that he was
paid a moderate salary in each of these three years. At the time
he closed the business at the end of August 2012, claimant
estimated corporate gross receipts of $220,970 for the year to
date, with a net income of $26,620, after payment of claimant's
salary, in a sum that was lower than the prior years, but was not
an extreme departure from his prior earnings. Although the
decline in business had required claimant to reduce personnel,
there was no proof that the business was otherwise unable to meet
its financial obligations. Claimant owned the building where he
ran the business, and there was no mortgage; the premises were
rented to the business for favorable tax treatment. Although
claimant testified that, at the time he closed the business he
had no bookings for October 2012 to December 2012, he also
testified that his business was seasonal and that this was
generally a slow time. In our view, the record thus establishes
that this was a viable business, and the Board's decision is
supported by substantial evidence (see Matter of Lowman
[Commissioner of Labor], 101 AD3d at 1283; Matter of Pitic
[Commissioner of Labor], 249 AD2d at 671; cf. Matter of Rosen
[Commissioner of Labor], 9 AD3d 775, 776 [2004]; Matter of
Crawford [Hudacs], 182 AD2d 1047, 1048 [1992]).

     Lahtinen, J.P., McCarthy and Lynch, JJ., concur.
                        -3-                  518505

ORDERED that the decision is affirmed, without costs.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
