In re the Claim of Fitton

Appeal from a decision of the Unemployment Insurance Appeal Board, filed August 5, 1993, which ruled that claimant was ineligible to receive unemployment insurance benefits because she was not totally unemployed. Claimant is the president and a 50% shareholder of Angelica Associates, Inc., a provider of home care and nursing services. She also accepted assignments as a nurse from Angelica when work was available. Claimant applied for unemployment insurance benefits when Angelica had no patients. The Unemployment Insurance Appeal Board subsequently ruled, however, that claimant was ineligible to receive benefits because her activities on behalf of Angelica during the benefit period constituted employment. Unemployment benefits are not payable unless a claimant is totally unemployed; meaning a total lack of any employment on any day, the term employment encompasses any employment including that not defined in the statute (see, Labor Law §§ 522, 591 [1]). Generally, corporate officers are deemed not totally unemployed when they engage in activities on behalf of the corporation from which they stand to gain financially, notwithstanding the fact that the corporation is inactive and not profitable (see, Matter of Khurgin [Sweeney], 232 AD2d 707, 707-708; Matter of Firsching [Hudacs], 192 AD2d 1011). Here, claimant testified that her business activities on behalf of Angelica included updating brochures, attendance at nurses’ meetings and telephone negotiations with the Department of Health regarding Angelica’s license. There was also evidence that claimant received $11,650 from the corporation while it 724 was inactive and that the corporation maintained its banking accounts and telephone service, and that it continued to seek clients through advertisements. We conclude that substantial evidence in the record supports the Board’s decision that claimant was not totally unemployed (see, Matter of Monro [Sweeney], 235 AD2d 885, 885-886). White, J. P., Casey, Yesawich Jr., Peters and Spain, JJ., concur. Ordered that the decision is affirmed, without costs.