In re the Claim of Leon

25 A.D.2d 925, 270 N.Y.S.2d 233, 1966 N.Y. App. Div. LEXIS 4102

Opinion

-Reynolds, J.

The employer appeals' from a decision.of the Unemployment Insurance Appeal Board which affirmed an award to á formefi employee who now resides in Puerto Rico. The determination must, be reversed' because there is no evidence that claimant was available for wórk'ás required' by subdivision 1 of section 527 and subdivision 2 of section 591 of the Labor Law. This court has consistently held that the statute is not satisfied if the only reason for the unemployment is the lack of transportation facilities (Matter of Posselt [Lubin], 3 A D 2d 881; Matter of Langer [Gatherwood], 11 A D 2d 560; Matter of Everle [Lubin], 12 A D 2d 531). In denying benefits in Posselt, this court stated: “ ‘ The lack of transportation to enable claimant to report for work which was available was due to her own personal circumstances. Her lack of employment was not due to economic circumstances or the inability of employers to provide work, as contemplated by the spirit and purpose of the Unemployment Insurance Law. * * * There must not only be a willingness, but the willingness and ability to present oneself at the place of work and actually doing so.’” (Matter of Langer [Catherwood], 11 A D 2d 560.) Decision reversed, on the law and the facts, and ease remitted to the Unemployment Insurance Appeal Board for further action not inconsistent herewith, without costs. Gibson, P. J., Herlihy and Taylor, JJ., concur; Aulisi, J., dissents and votes to affirm. I dissent and vote to affirm. The initial determination that claimant is eligible to receive benefits has been sustained by the Referee and the Appeal Board. Availability for work is a question of fact. In my opinion there is here substantial evidence to sustain the board’s determination.