Petrinec v. Levine
| Decision Date | 25 October 1973 |
| Citation | 42 A.D.2d 1022,348 N.Y.S.2d 246 |
| Parties | Claim of David PETRINEC and William S. Gibson, Appellants, v. Louis L. LEVINE, as Industrial Commissioner, Respondent. |
| Court | New York Supreme Court — Appellate Division |
Abbott, Tills, Tills & Knapp, Hamburg (Kenneth W. Knapp, Hamburg, of counsel), for appellants.
Louis J. Lefkowitz, Atty. Gen. (Frederick M. Paola, New York City, of counsel), for respondent.
Before STALEY, J.P., and GREENBLOTT, SWEENEY, MAIN and REYNOLDS, JJ.
Appeal from a decision of the Unemployment Insurance Appeal Board which held the claimants ineligible to receive benefits because they were not totally unemployed (Labor Law, §§ 522, 591, subd. 1), charging them with over-payments ruled to be recoverable, and held that they had willfully made false statements to obtain benefits for which a forfeiture was imposed in reduction of their future benefit rights (Labor Law, § 594).
During 1970 the claimants, who had been laid off from their previous industrial employments, went to reside on a 200-acre operating dairy farm owned and operated by their aunt and uncle. The board found that, despite the fact that they received no actual cash payments for the 'regular and substantial services' performed, they did receive room and board, which the board stated constituted remuneration under subdivision 1 of section 517 of the Labor Law, and thus were not 'totally unemployed' and were, therefore, ineligible for benefits (Labor Law, §§ 591, subd. 1, 522). Total unemployment is a factual issue, and thus the board's determination on this issue must be upheld unless it is not supported by substantial evidence (e.g., Matter of Bartlett (Catherwood), 32 A.D.2d 591, 299 N.Y.S.2d 267; Matter of Weiss (Catherwood), 28 A.D.2d 577, 281 N.Y.S.2d 109). The instant record clearly supports the board's finding that the claimants performed 'regular and substantial services' during the periods involved. It is, in fact, evident, as the board noted, that the claimants were performing the major work functions necessary to operate the farm since their uncle was regularly employed elsewhere. On this state of the record and considering also that the claimants were receiving their room and board free, it cannot be said that the board could not properly find that they lacked total unemployment (see Matter of Horner (Catherwood), 32 A.D.2d 700, 299 N.Y.S.2d 930; Matter of Emanuel (Catherwood), 29 A.D.2d 798, 287 N.Y.S.2d 128).
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Jacobs v. District Unemploy. Comp. Bd., 12028.
... ... Catherwood, 28 A.D.2d 1188, 1188-89, 284 N.Y.S.2d 636, 638 (3d Dept. 1967). Accord, Petrinec v. Levine, 42 A.D.2d 1022, 348 N.Y. S.2d 246 (3d Dept. 1973). In fact, some New York judges, out of an ultimate regard for administrative ... ...
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Claim of Flanagan
...no reason to disturb the Board's decision (see, Matter of Rodriguez [Levine], 50 A.D.2d 1031, 377 N.Y.S.2d 279; Matter of Petrinec [Levine], 42 A.D.2d 1022, 348 N.Y.S.2d 246). ORDERED that the decision is affirmed, without CARDONA, P.J., and MIKOLL, CREW, WHITE and PETERS, JJ., concur. ...
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Davis v. Levine
...supported by substantial evidence (Labor Law, § 623; Matter of Drejza (Levine), 42 A.D.2d 659, 345 N.Y.S.2d 200; Matter of Petrinec (Levine), 42 A.D.2d 1022, 348 N.Y.S.2d 246). This court, in Matter of McGee (Levine) (supra), Although factual questions are properly for the board, its determ......
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Ober v. Ross
...by the board. If there is substantial evidence to support those determinations, they must be affirmed (Matter of Petrinec (Levine), 42 A.D.2d 1022, 348 N.Y.S.2d 246; Matter of Bailey (Catherwood), 18 A.D.2d 727, 234 N.Y.S.2d 300; Labor Law, § 623). We have examined the record and found such......