In re the Claim of Betancourt

60 A.D.2d 719, 401 N.Y.S.2d 8, 1977 N.Y. App. Div. LEXIS 14750

Opinion

Appeal from a decision of the Unemployment Insurance Appeal Board, filed September 10, 1976, which denied an application to reconsider its prior decision and from a decision filed June 3, 1976 sustaining the initial determination of the Industrial Commissioner disqualifying claimant from receiving benefits effective September 9, 1975 because he lost his employment through misconduct in connection therewith and denying claimant’s application for vocational training pursuant to section 599 of the Labor Law. While it is reasonably certain that claimant is not guilty of misconduct as to his employment within the meaning of the Unemployment Insurance Law (Labor Law, art 18), it is established that he lost his employment by voluntarily leaving the same through conduct provoking his discharge because the employer had no alternative (see Matter of Keenan [Levine], 51 AD2d 596; cf. Matter of De Grego [Levine], 39 NY2d 180, 183). The board clearly considered the excuse proffered by the claimant as to his possession of the gun and found a failure to establish good cause. The decision of the board appears to hold there was misconduct, but it also held: "Claimant’s absence from work was due to his incarceration because of his own violation of the penal law.” This is sufficient as a finding of voluntary leaving of employment and the decisions should be affirmed. Decisions affirmed, without costs. Koreman, P. J., Greenblott, Mikoll and Herlihy, JJ., concur; Main, J., concurs in the result only.