Appellate Division of the Supreme Court of New York, 2007

In re Claim of Swan

Appellate Division of the Supreme Court of New York · Decided May 17, 2007

40 A.D.3d 1295; 835 N.Y.S.2d 774

Cases that cite this one

7 later published cases cite this decision.

In re the Claim of Marcus (Appellate Division of the Supreme Court of New York 2008)
In re of the Claim of Davis (Appellate Division of the Supreme Court of New York 2008)
In re the Claim of Smith (Appellate Division of the Supreme Court of New York 2008)
In re the Claim of Lapczynski (Appellate Division of the Supreme Court of New York 2007)
In re the Claim of Siegel (Appellate Division of the Supreme Court of New York 2007)
In re the Claim of Meister (Appellate Division of the Supreme Court of New York 2007)
In re the Claim of Landry (Appellate Division of the Supreme Court of New York 2007)

This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.

Opinion of the Court

Appeal from a decision of the Unemployment Insurance Appeal Board, filed July 20, 2006, which ruled that claimant was ineligible to receive unemployment insurance benefits because she was not totally unemployed.

On February 1, 2006, after her full-time employment ended, claimant applied for unemployment insurance benefits effective January 23, 2006. Prior to this time, she had started a snow plowing and lawn care business which she operated with her husband, and filed a certificate of doing business in September 2005. Due to claimant’s affiliation with the business and the activities she performed on its behalf during the benefit period, the Unemployment Insurance Appeal Board ruled that she was ineligible to receive benefits because she was not totally unemployed. Claimant appeals.

We affirm. It is well settled that a claimant who performs activities on behalf of an ongoing business will not be considered totally unemployed even if such activities are minimal, provided that the claimant stands to benefit financially from the continued existence of the business (see Matter of McDonald [Commissioner of Labor], 26 AD3d 636, 637 [2006]; Matter of Sharon [Commissioner of Labor], 12 AD3d 1018, 1018 [2004]). Here, the evidence establishes that, prior to applying for benefits, claimant had started the business, invested in equipment and entered into prepaid snow plowing contracts with approximately 20 clients. She also assisted her husband in snow *1296removal including some activity while collecting benefits. In addition, in April 2006, she began soliciting clients for lawn care services and secured a few jobs. Although the business operated at a loss in 2005, claimant expected the business to be profitable in future years and took a business loss deduction on her joint 2005 personal income tax return (see Matter of Whylie [Commissioner of Labor], 38 AD3d 1037 [2007]). Inasmuch as claimant stood to gain financially from the continued operation of the business, substantial evidence supports the Board’s decision that she was not totally unemployed during the period when she was receiving benefits (see Matter of Moreira-Brown [Commissioner of Labor], 36 AD3d 987 [2007]).

Mercure, J.P., Crew III, Feters, Spain and Rose, JJ., concur. Ordered that the decision is affirmed, without costs.

Case-law data current through December 31, 2025. Source: CourtListener bulk data.