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Timinski v. Board of Review

November 3, 2010

RICHARD M. TIMINSKI, SR., APPELLANT,
v.
BOARD OF REVIEW, DEPARTMENT OF LABOR AND ADAM'S BAR, INC., RESPONDENTS.



On appeal from the Board of Review, Department of Labor, Docket No. 228,940.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 12, 2010

Before Judges Rodríguez, Miniman and LeWinn.

Appellant, Richard M. Timinski, Sr., is the owner and sole corporate officer of Adam's Bar, Inc., in Orange. On February 27, 2009, the City of Orange condemned the one hundred-year-old building in which the bar is located and ordered it to be vacated because numerous repairs were necessary. Appellant thereupon applied for unemployment benefits. He now appeals from the October 8, 2009 final decision of the Board of Review (Board) affirming the decision of the Appeal Tribunal finding him ineligible for such benefits.

A telephonic hearing was held before the Appeal Tribunal on June 24, 2009. At the outset, the hearing examiner identified the issue as "a question regarding [appellant's] availability to work . . . that stems from the fact that [he is] currently listed as corporate owner . . . of Adam's Bar." Appellant testified that he had no plans to resume operations of the bar in the future and that "[e]ventually" he planned to dissolve the business; he had not commenced dissolution proceedings as of the time of the hearing. In fact, appellant inquired of the hearing examiner as to how to proceed.

The hearing examiner advised appellant that he first had to file for a "tax clearance" and gave appellant the telephone number for the Division of Taxation to begin the process. The hearing examiner also explained to appellant that "if [he is] listed as a corporate officer . . . [he is] not eligible for unemployment [benefits] right now."

The hearing examiner further advised appellant: "Without proof that the corporation has been dissolved or without proof that [he] at least filed for dissolution[,]" he would not be considered "available for work[,]" and, therefore would be ineligible to receive unemployment benefits. The examiner offered to hold appellant's case open while he took the steps necessary to dissolve the corporation.

The Appeal Tribunal issued its decision on July 6, 2009. At the outset, the Tribunal noted that appellant "was employed [fifteen] years as the owner of a corporation [of] which . . . [he] owned [one hundred] percent of the stock until [February 27, 2009,] when the corporation closed operations temporarily due to construction violations. The corporation expects to resume operations in a time which has yet to be determined." The decision noted that appellant "was to begin the process of dissolution of the business, but he informed the hearing officer, under the advice of his attorney, he will not cease operation of his business."

Therefore, the Appeal Tribunal determined that appellant was ineligible for unemployment benefits pursuant to N.J.S.A. 43:21-19(m)(1), which provides, in pertinent part:

An individual shall be deemed "unemployed" for any week during which:

(A) The individual is not engaged in full-time work and with respect to which his remuneration is less than his weekly benefit rate . . . except that for benefit years commencing on or after July 1, 1984, an officer of a corporation, or a person who has more than a [five percent] equitable or debt interest in the corporation, whose claim for benefits is based on wages with that corporation shall not be deemed to be unemployed in any week during the individual's term of office or ownership in the corporation[.]

[Emphasis added.]

Noting that appellant "has not dissolved his business, and has no immediate plans to do so in the near future[,]" the Tribunal concluded that appellant would not be "considered ...


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