In re the Claim of Keenan

51 A.D.2d 596, 377 N.Y.S.2d 780, 1976 N.Y. App. Div. LEXIS 10906

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 8, 1976
• Status: Published

Opinion

Appeal from a decision of the Unemployment Insurance Appeal Board, filed September 23, 1974, which disqualified claimant from receiving benefits effective March 22, 1974 because he voluntarily left his employment without good cause by provoking his discharge. Claimant, a Nassau County probation officer and a Suffolk County resident, was given a waiver of the residency requirements of section 13-1.0 of the Nassau County Administrative Code upon the condition that he "actively seek to acquire a residence in Nassau County”. After about nine months during which the evidence discloses little effort on the part of the claimant to relocate, he was given two weeks to comply with the residency requirements and, when he failed to do so, he was terminated as of March 22, 1974. The board found that claimant did not actively seek a residence in Nassau County and that the waiver of the residency requirement was expressly conditioned upon such activity on the part of the claimant and that his voluntary act of not seeking and acquiring a Nassau County residence required his involuntary termination. This was a factual determination solely within the province of the board and, since it is supported by substantial evidence, it must be affirmed. While the doctrine of provoked discharge has been considerably narrowed (see Matter of James [Levine], 34 NY2d 491), it is appropriately applied to the instance of the "involuntary” discharge by an employer for cause flowing from the "voluntary” act or acts of the employee (Matter of James [Levine], supra). (See Matter of Malaspina [Corsi], 309 NY 413.) The decision of the board should be affirmed. Decision affirmed, without costs. Greenblott, J. P., Kane, Main, Larkin and Reynolds, JJ., concur.