Matter of Kevin A. Robinson v Commissioner of Labor

Matter of Robinson (Commissioner of Labor) 2004 NY Slip Op 06171 [9 AD3d 779] July 22, 2004 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, September 22, 2004

In the Matter of the Claim of Kevin A. Robinson, Appellant. Commissioner of Labor, Respondent.

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Appeal from a decision of the Unemployment Insurance Appeal Board, filed November 17, 2003, which ruled that claimant was ineligible to receive unemployment insurance benefits because he was not totally unemployed.

Substantial evidence supports the decision of the Unemployment Insurance Appeal Board finding that claimant was ineligible to receive unemployment insurance benefits because he was not totally unemployed. The record establishes that claimant operates a small business selling fragrances and body oils. As part of his business venture, claimant maintained a business checking account, passed out business cards, sold products to clients and regularly placed orders for the products. Claimant is looking to expand the business, possibly by opening a small store, and intends to claim any net losses or gains on his personal income tax return. Although claimant testified that his business is not yet profitable, he nevertheless stood to gain financially from the continued operation of the business (see Matter of Rhode [Commissioner of Labor], 274 AD2d 725, 726 [2000]). Under these circumstances we find no reason to disturb the Board's decision that claimant's activities constitute employment within the meaning of the Labor Law (see Matter of Standig [Commissioner of Labor], 3 AD3d 828 [2004]; Matter of Rhode [Commissioner of Labor], supra at 726).

Crew III, J.P., Peters, Carpinello, Mugglin and Rose, JJ., concur. [*2]Ordered that the decision is affirmed, without costs.