                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: October 2, 2014                   518441
________________________________

In the Matter of the Claim of
   JUAN E. ROMERO,
                    Appellant.
                                            MEMORANDUM AND ORDER
COMMISSIONER OF LABOR,
                    Respondent.
________________________________


Calendar Date:   August 4, 2014

Before:   Peters, P.J., Stein, Rose, Egan Jr. and Clark, JJ.

                             __________


     Juan E. Romero, New York City, appellant pro se.

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

                             __________


      Appeal from a decision of the Unemployment Insurance Appeal
Board, filed March 18, 2013, which, among other things, ruled
that claimant was ineligible to receive unemployment insurance
benefits because he was not totally unemployed.

      Claimant had been employed in the fashion industry for a
number of years and, following a break in employment, filed an
application for unemployment insurance benefits in December 2010.
In September 2011, claimant formed a corporation to import and
sell clothing manufactured overseas, and he thereafter performed
a number of activities in connection with this business that he
did not disclose when certifying for benefits. The Department of
Labor subsequently issued initial determinations finding that
claimant was ineligible to receive benefits because he was not
totally unemployed and imposing a recoverable overpayment and a
forfeiture penalty based upon claimant's willful
misrepresentation to obtain benefits. These determinations were
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upheld by an Administrative Law Judge and later by the
Unemployment Insurance Appeal Board. Claimant now appeals.

      Whether a claimant is totally unemployed is a factual issue
for the Board to decide, and its determination will be upheld if
supported by substantial evidence (see Matter of Lewis
[Commissioner of Labor], 106 AD3d 1313, 1313 [2013]; Matter of
Bernstein [Commissioner of Labor], 67 AD3d 1287, 1287 [2009]). A
claimant who performs activities on behalf of an ongoing business
may not be considered totally unemployed, even if such activities
are minimal or the business is not profitable, if he or she
stands to benefit financially from its continued operation (see
Matter of Lewis [Commissioner of Labor], 106 AD3d at 1313; Matter
of Dupey [Commissioner of Labor], 79 AD3d 1508, 1508-1509
[2010]). Here, claimant incorporated the business, opened a
business checking account, created a business logo, started
developing a business website, distributed business cards,
attended seminars and trade shows and had apparel samples made by
overseas manufacturers, all in furtherance of establishing a
lucrative business. Notwithstanding the fact that claimant was
not receiving income from the business, substantial evidence
supports the Board's decision that he was not totally unemployed
(see Matter of Siegel [Commissioner of Labor], 43 AD3d 1224, 1225
[2007]). Furthermore, given that claimant read the provisions of
the unemployment insurance handbook relating to self-employment,
but represented that he was not working when certifying for
benefits, we find no reason to disturb the Board's finding that
he made a willful misrepresentation – even if it was
unintentional (see Matter of Bernard [Commissioner of Labor], 53
AD3d 1006, 1007 [2008]).

     Peters, P.J., Stein, Rose, Egan Jr. and Clark, JJ., concur.
                        -3-                  518441

ORDERED that the decision is affirmed, without costs.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
