In re the Claim of Cohen

Appellate Division of the Supreme Court of New York

In re the Claim of Cohen

44 A.D.2d 286, 354 N.Y.S.2d 490, 1974 N.Y. App. Div. LEXIS 5169

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

DecidedApril 25, 1974

StatusPublished

Cited by2 cases

This text of 44 A.D.2d 286 (In re the Claim of Cohen) 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 Cohen, 44 A.D.2d 286, 354 N.Y.S.2d 490, 1974 N.Y. App. Div. LEXIS 5169 (N.Y. Ct. App. 1974).

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Opinion

Kane, J.

This is an appeal from a decision of the Unemployment Insurance Appeal Board, filed May 10,1973.

Claimant, a medical secretary employed by a hospital five days a week, was discharged on March 2,1972 when her employer discovered she was working concurrently at another job. She continued in her second job until March 10, 1972 and thereafter filed for and received unemployment insurance benefits from that point until April 25,1972 when she commenced new employment at another location.

Her discharge from the hospital was protested by her union and, upon submission of the controversy to the New York State Board of Mediation, an arbitrator ruling in her favor that she was not discharged for just cause directed that she “ be reinstated to her job without loss of seniority and other rights under the contract. The Employer shall pay to Minnie Cohen $717.50 in full settlement of her claim for wages lost because of the wrongful discharge.” The calculation of the sum of $717.50 was based upon earnings she would have received during the period of lost employment from the time of discharge by the employer herein, less the amount earned from the second [287]*287employer and the unemployment insurance benefits obtained.

In seeking recovery of the benefits paid to claimant, the appellant Industrial Commissioner contends her award is for back pay. Thus, claimant was not “ totally unemployed ” during the period she received them and such benefits should be recoverable as within the definition of “ retroactive payment of remuneration.” (Labor Law, § 597, subd. 4.)

The Unemployment Insurance Appeal Board disagreed and held the payment was not “ remuneration ” as defined by subdivision 1 of section 517 of the Labor Law since the arbitrator’s award was determined by reducing her earnings by the amount of unemployment benefits received together with other income and, thus, not within the contemplation of the statute. -

The award of the arbitrator was, in fact, a determination of the measure of damages for her wrongful discharge. The amount of the award was calculated by reducing the total amount she would have earned from the hospital by the amount of income obtained from collateral sources. In other words, the arbitrator held she was bound to mitigate her damages. Accordingly, claimant was totally unemployed during the period under review and there was no overpayment.

The decision should be affirmed, with costs.

Heblihy, P. J., Gbeenblott, Cooke and Main, JJ., concur.

Decision affirmed, with costs.

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Kane, J.

This is an appeal from a decision of the Unemployment Insurance Appeal Board, filed May 10,1973.

Claimant, a medical secretary employed by a hospital five days a week, was discharged on March 2,1972 when her employer discovered she was working concurrently at another job. She continued in her second job until March 10, 1972 and thereafter filed for and received unemployment insurance benefits from that point until April 25,1972 when she commenced new employment at another location.

Her discharge from the hospital was protested by her union and, upon submission of the controversy to the New York State Board of Mediation, an arbitrator ruling in her favor that she was not discharged for just cause directed that she “ be reinstated to her job without loss of seniority and other rights under the contract. The Employer shall pay to Minnie Cohen $717.50 in full settlement of her claim for wages lost because of the wrongful discharge.” The calculation of the sum of $717.50 was based upon earnings she would have received during the period of lost employment from the time of discharge by the employer herein, less the amount earned from the second [287]*287employer and the unemployment insurance benefits obtained.

In seeking recovery of the benefits paid to claimant, the appellant Industrial Commissioner contends her award is for back pay. Thus, claimant was not “ totally unemployed ” during the period she received them and such benefits should be recoverable as within the definition of “ retroactive payment of remuneration.” (Labor Law, § 597, subd. 4.)

The Unemployment Insurance Appeal Board disagreed and held the payment was not “ remuneration ” as defined by subdivision 1 of section 517 of the Labor Law since the arbitrator’s award was determined by reducing her earnings by the amount of unemployment benefits received together with other income and, thus, not within the contemplation of the statute. -

The award of the arbitrator was, in fact, a determination of the measure of damages for her wrongful discharge. The amount of the award was calculated by reducing the total amount she would have earned from the hospital by the amount of income obtained from collateral sources. In other words, the arbitrator held she was bound to mitigate her damages. Accordingly, claimant was totally unemployed during the period under review and there was no overpayment.

The decision should be affirmed, with costs.

Heblihy, P. J., Gbeenblott, Cooke and Main, JJ., concur.

Decision affirmed, with costs.

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44 A.D.2d 286, 354 N.Y.S.2d 490, 1974 N.Y. App. Div. LEXIS 5169, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-claim-of-cohen-nyappdiv-1974.

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