In re the Claim of Loeber , 377 N.Y.S.2d 763 ( 1976 )

Appeal from a decision of the Unemployment Insurance Appeal Board, filed September 4, 1975, which held claimant ineligible to receive benefits because he was not totally unemployed (Labor Law, §§ 522, 591, subd 1). The question of total unemployment is factual and thus within the sole province of the board if its decision is supported by substantial evidence (Matter of Baxter [Levine], 50 AD2d 642; Matter of Schatzberg [Catherwood], 32 AD2d 710). In the instant case the record reveals that claimant, a licensed plumber, was the owner of 51% of the stock in a plumbing business, his wife held the remaining stock, and that during the period in question he continued to solicit business for the corporation and in fact spent three to five hours on three to five days a week at the corporation office toward such end. Such activities could clearly be found to constitute employment within the meaning of the law (e.g. Matter of Reitman [Catherwood], 27 AD2d 678). The fact that the business may have made no profit during the period in issue is not controlling (Matter of Schneider [Levine] 50 AD2d 631; Matter of Scheer [Catherwood], 33 AD2d 1063). Accordingly, the board could properly conclude that claimant was not totally unemployed during the period in issue (e.g. Matter of Wersha [Catherwood] 27 AD2d 890; Matter of Vasquenz [Catherwood] 26 AD2d 859). Decision affirmed, without costs. Greenblott, J. P., Sweeney, Main, Larkin and Reynolds, JJ., concur.