In re the Claim of Jowers

Appellate Division of the Supreme Court of New York

In re the Claim of Jowers

239 A.D.2d 638, 657 N.Y.S.2d 122, 1997 N.Y. App. Div. LEXIS 4535

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

DecidedMay 1, 1997

StatusPublished

Cited by2 cases

This text of 239 A.D.2d 638 (In re the Claim of Jowers) 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 Jowers, 239 A.D.2d 638, 657 N.Y.S.2d 122, 1997 N.Y. App. Div. LEXIS 4535 (N.Y. Ct. App. 1997).

Pincite

Opinion

In April 1995, claimant, a youth aide in a security facility, was placed on administrative leave pending an investigation regarding contraband which was given to an inmate at the security facility. Following an investigation, claimant was discharged from his employment in September 1995 but remained on the employer’s payroll and received regular paychecks until October 24, 1995 when his accrued sick, personal and vacation days were exhausted. The Unemployment Insurance Appeal Board found that claimant was not totally unemployed during the period in which he remained on the employer’s payroll and denied him unemployment insurance benefits during that period. We agree. Because an employer-employee relationship continues until accrued leave credits are exhausted, a claimant is not totally unemployed during such period (see, Matter of Berger [Ross], 41 NY2d 1065, 1066; Matter of Fuchs [Hartnett], 177 AD2d 769). As it is [639]*639undisputed that claimant was receiving a paycheck until October 24, 1995 pursuant to his accrued leave credits, we find that the Board’s decision is supported by substantial evidence and it is, accordingly, affirmed. To the extent that claimant contests his termination due to misconduct, such issue was not the subject of the hearing and, therefore, cannot be raised on this appeal.

Cardona, P. J., Yesawich Jr., Peters, Spain and Carpinello, JJ., concur. Ordered that the decision is affirmed, without costs.

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In April 1995, claimant, a youth aide in a security facility, was placed on administrative leave pending an investigation regarding contraband which was given to an inmate at the security facility. Following an investigation, claimant was discharged from his employment in September 1995 but remained on the employer’s payroll and received regular paychecks until October 24, 1995 when his accrued sick, personal and vacation days were exhausted. The Unemployment Insurance Appeal Board found that claimant was not totally unemployed during the period in which he remained on the employer’s payroll and denied him unemployment insurance benefits during that period. We agree. Because an employer-employee relationship continues until accrued leave credits are exhausted, a claimant is not totally unemployed during such period (see, Matter of Berger [Ross], 41 NY2d 1065, 1066; Matter of Fuchs [Hartnett], 177 AD2d 769). As it is [639]*639undisputed that claimant was receiving a paycheck until October 24, 1995 pursuant to his accrued leave credits, we find that the Board’s decision is supported by substantial evidence and it is, accordingly, affirmed. To the extent that claimant contests his termination due to misconduct, such issue was not the subject of the hearing and, therefore, cannot be raised on this appeal.

Cardona, P. J., Yesawich Jr., Peters, Spain and Carpinello, JJ., concur. Ordered that the decision is affirmed, without costs.

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Bluebook (online)

239 A.D.2d 638, 657 N.Y.S.2d 122, 1997 N.Y. App. Div. LEXIS 4535, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-claim-of-jowers-nyappdiv-1997.

Opinion

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