In re the Claim of Berlowitz

Appellate Division of the Supreme Court of New York

In re the Claim of Berlowitz

12 A.D.3d 763, 783 N.Y.S.2d 437, 2004 N.Y. App. Div. LEXIS 13022

CourtAppellate Division of the Supreme Court of the State of New York

DecidedNovember 4, 2004

StatusPublished

Cited by1 cases

This text of 12 A.D.3d 763 (In re the Claim of Berlowitz) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In re the Claim of Berlowitz, 12 A.D.3d 763, 783 N.Y.S.2d 437, 2004 N.Y. App. Div. LEXIS 13022 (N.Y. Ct. App. 2004).

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Opinion

[764]*764Appeal from a decision of the Unemployment Insurance Appeal Board, filed December 29, 2003, which, inter alia, ruled that claimant was disqualified from receiving unemployment insurance benefits because she voluntarily left her employment without good cause.

Claimant was employed as a school tutor from 1984 until she retired on August 25, 2003, thus terminating her employment. Claimant’s motivation for retirement was her understanding that as a retiree she could collect her retirement benefits while earning additional income by continuing to work for the same employer for the 2003-2004 school year at the same rate of pay so long as the federal funding remained available. Claimant worked two days as a tutor at a private school, until the federal funds were reallocated. The Unemployment Insurance Appeal Board, reversing a decision of the Administrative Law Judge, denied claimant’s application for unemployment insurance benefits on the ground that she was disqualified from receiving benefits because she voluntarily left her employment without good cause.

It has been held that “a claimant who leaves employment while continuing work is available in order to obtain advantageous retirement benefits may be disqualified from receiving unemployment insurance payments on the ground that the resignation was for personal and noncompelling reasons” (Matter of Brydon [Commissioner of Labor], 297 AD2d 853, 854 [2002]; see Matter of Cuttitto [Commissioner of Labor], 303 AD2d 814 [2003]; Matter of Grossman [Levine], 51 AD2d 853 [1976]). Here, the record establishes that continuing work for the 2003-2004 school year was available had claimant not retired. This, and the fact that claimant intended to withdraw from the labor market by retiring (see Matter of Lynch [Catherwood], 32 AD2d 704 [1969]), provide substantial evidence to support the Board’s decision ruling that claimant voluntarily left her employment without good cause.

Peters, J.P., Spain, Carpinello, Mugglin and Rose, JJ., concur. Ordered that the decision is affirmed, without costs.

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[764]*764Appeal from a decision of the Unemployment Insurance Appeal Board, filed December 29, 2003, which, inter alia, ruled that claimant was disqualified from receiving unemployment insurance benefits because she voluntarily left her employment without good cause.

Claimant was employed as a school tutor from 1984 until she retired on August 25, 2003, thus terminating her employment. Claimant’s motivation for retirement was her understanding that as a retiree she could collect her retirement benefits while earning additional income by continuing to work for the same employer for the 2003-2004 school year at the same rate of pay so long as the federal funding remained available. Claimant worked two days as a tutor at a private school, until the federal funds were reallocated. The Unemployment Insurance Appeal Board, reversing a decision of the Administrative Law Judge, denied claimant’s application for unemployment insurance benefits on the ground that she was disqualified from receiving benefits because she voluntarily left her employment without good cause.

It has been held that “a claimant who leaves employment while continuing work is available in order to obtain advantageous retirement benefits may be disqualified from receiving unemployment insurance payments on the ground that the resignation was for personal and noncompelling reasons” (Matter of Brydon [Commissioner of Labor], 297 AD2d 853, 854 [2002]; see Matter of Cuttitto [Commissioner of Labor], 303 AD2d 814 [2003]; Matter of Grossman [Levine], 51 AD2d 853 [1976]). Here, the record establishes that continuing work for the 2003-2004 school year was available had claimant not retired. This, and the fact that claimant intended to withdraw from the labor market by retiring (see Matter of Lynch [Catherwood], 32 AD2d 704 [1969]), provide substantial evidence to support the Board’s decision ruling that claimant voluntarily left her employment without good cause.

Peters, J.P., Spain, Carpinello, Mugglin and Rose, JJ., concur. Ordered that the decision is affirmed, without costs.

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Bluebook (online)

12 A.D.3d 763, 783 N.Y.S.2d 437, 2004 N.Y. App. Div. LEXIS 13022, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-claim-of-berlowitz-nyappdiv-2004.

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