Opinion
December 18, 1975
Appeal from a decision of the Unemployment Insurance Appeal Board, filed April 11, 1975, which affirmed the decision of a referee sustaining the initial determinations of the Industrial Commissioner holding claimant ineligible to receive benefits effective June 6, 1972 because he was not totally unemployed, charging him with an overpayment of benefits ruled to be recoverable and imposing a forfeiture of 88 effective benefit days for a willful false statement. Claimant, an unemployed executive, formed a corporation to engage in business brokerage. Claimant was president and sole stockholder. The corporation rented offices, had telephones, and expended funds for advertising services. No sales were effectuated, whereby the corporation had no earnings and claimant devoted only a small part of his day to its affairs. When applying for benefits, however, claimant indicated that he was considering the purchase of a business but did not disclose that he had organized the corporation. Claimant asserts that he had no intention to conceal material facts and that he formed the corporation merely to avoid personal liability and as an alternative method of seeking a situation from which he would have income. It is well-settled, however, that where a claimant is a principal in an active corporation notwithstanding that such a corporation is not successful, such a claimant is not totally unemployed (Matter of Bailey [Catherwood], 18 A.D.2d 727). Moreover, the question of willful misrepresentation is factual and the board's determination thereon should not be disturbed if it is supported by substantial evidence (Matter of Juris [Catherwood], 33 A.D.2d 852). The record substantiates the fact that claimant failed to disclose formation of the corporation, and there is thus an adequate basis for finding that claimant made willful false statements for purposes of unemployment insurance (Labor Law, § 594). Decision affirmed, without costs. Greenblott, J.P., Sweeney, Kane, Koreman and Main, JJ., concur.