In re Llano

46 A.D.2d 841, 361 N.Y.S.2d 219, 1974 N.Y. App. Div. LEXIS 3540

Opinion

Appeal from a decision of the Unemployment Insurance Appeal Board disqualifying the claimant from benefits because he voluntarily left his employment without good cause by provoking his discharge and holding claimant willfully made a false statement to obtain benefits for which a forfeiture of four effective days was imposed. Respondent urges that in accordance with the Court of Appeals decision in Matter of James (Levine) (34 N Y 2d 491) where the board finds a provoked discharge if all the necessary implied findings of loss of employment through misconduct are present the board’s decision should, nevertheless, be affirmed. However, in the instant case the board adopted the findings of fact and opinion of the referee who specifically held that it was “unnecessary to decide the misconduct issue”. Faced with this state of the record, it is impossible to infer a finding of misconduct and the case must be remitted to the board for further determination as to whether the test set forth in James has, in fact, been met in the instant case. Decision reversed, with costs, and matter remitted to the Unemployment Insurance Appeal Board for further proceedings not inconsistent herewith. Staley, Jr., J. P., Sweeney, Kane, Main and Reynolds, JJ., concur.