In re the Claim of Kent

Appeal from a decision of the Unemployment Insurance Appeal Board, filed May 9, 1968, holding claimant ineligible for benefits effective November 28, 1966 because of a lack of total unemployment (Labor Law, § 522), charging him with an overpayment of $811.25, ruled to be recoverable, and holding that he willfully misrepresented to obtain benefits for which a forfeiture of 51 effective days was imposed (Labor Law, § 594). What constitutes “total unemployment” is a factual decision and thus if the board’s determination is supported by substantial evidence, it cannot be disturbed (Matter of Weiss [Catherwood], 28 A D 2d 577). The record contains substantial evidence that during the period in question appellant was active in the operation of a store selling photographic equipment and supplies and, in addition, performing studio and photographic work in partnership with his father. The board could properly find that he was engaged in self-employment and not totally unemployed. (Matter of Emanuel [Catherwood], 29 A D 2d 798.) “The fact that this was merely a sideline while he was regularly employed or that it was sporadic and involved only a limited investment is not controlling. Nor is the fact that the endeavor was nonremunerative during the period for which benefits are claimed *594{Matter of Bailey [Gatherwood], 18 A D' 2d -727) ” {Matter of Oa/rasso [•Gatherwood], 23 A -D 2d 935, 936). .likewise, the question of willful representation is factual and since there is substantial evidence to support the board’s determination, it must be upheld. (Matter of Tiber [Catherwood], 31 A D 2d 704.) Decision affirmed, without costs. Herlihy, P. J., Reynolds, Staley, Jr., Greenblott and Cooke, JJ., concur in memorandum by Greenblott, J.