In re the Claim of Schatzberg

Reynolds, J.

Appeal from a decision of the Unemployment Insurance Appeal Board holding claimant ineligible for benefits effective November 1, 1965 because of a lack of total unemployment (Labor Law, § 522), charging him with an overpayment of $470.25 ruled to be recoverable, and holding that he willfully misrepresented to obtain benefits for which a forfeiture of 57 effective days was imposed (Labor Law, § 594). What constitutes “ total. unemployment ” is a factual decision and thus if the board’s determination is supported by substantial evidence it cannot be disturbed (e.g., Matter of Weiss [Catherwood], 28 A D 2d 577). The instant record contains substantial evidence *711that during the period in question claimant was operating an electronic service and installation business and thus the board could properly find that he was engaged in self-employment and not totally unemployed (e.g., Matter of Emanuel [Catherwood], 29 A D 2d 798; Matter of Newman [Catherwood], 24 A D 2d 1042). “ The fact that this was merely a sideline while he was regularly employed or that it was sporadic and involved only a limited investment is not controlling. Nor is the fact that the endeavor was nonremunerative during the period for which benefits are claimed (Matter of Bailey [Catherwood], 18 A D 2d 727) or claimant did not realize that his activities constituted employment (Matter of Bunzl [Lubin], 1 A D 2d 46).” (Matter of Carasso [Catherwood], 23 A D 2d 935, 936.) Similarly, the question of willful misrepresentation is factual and since there is substantial evidence to support the board’s determination it must be upheld (e.g., Matter of Tiber [Catherwood], 31 A D 2d 704; Matter of Tiano [Catherwood], 27 A D 2d 879). Decision affirmed, without costs. Gibson, P. J., Herlihy, Reynolds, Cooke and Greenblott, JJ., concur in memorandum by Reynolds, J.