In re the Claim of Lunney

Appellate Division of the Supreme Court of New York

In re the Claim of Lunney

32 A.D.2d 864, 301 N.Y.S.2d 689, 1969 N.Y. App. Div. LEXIS 3627

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

DecidedJune 24, 1969

StatusPublished

Cited by3 cases

This text of 32 A.D.2d 864 (In re the Claim of Lunney) 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 Lunney, 32 A.D.2d 864, 301 N.Y.S.2d 689, 1969 N.Y. App. Div. LEXIS 3627 (N.Y. Ct. App. 1969).

Pincite

Opinion

Reynolds, J.

Appeal from a decision of the Unemployment Insurance Appeal Board ruling claimant ineligible for benefits effective October 30, 1967 on the ground that he was not available for employment (Labor Law, § 591, subd. 2). Whether a person is available for employment during a specific period is a question of fact and thus if the board’s determination is supported by substantial evidence it must be upheld (e.g. Matter of Ciganek [Catherwood], 30 A D 2d 607; Matter of Vitolo [Catherwood], 28 A D 2d 758). In the instant case there is ample evidence to support the finding of the board that “ during the period involved, claimant did not make an active or realistic search for work”. It is completely irrelevant and immaterial to the determination of the instant appeal that in previous years when the racing season had ended at Monticello claimant and other employees had received benefits or that claimant was ruled eligible during a period subsequent to the period in issue. The principles of estoppel and res judicata have no application in cases such as the instant case since the question of availability for employment is a continuing factor and of necessity requires a periodic examination of claimant’s effort in seeking to obtain work. Decision affirmed, without costs. Gibson, P. J., Herlihy, Reynolds, Cooke and Greenblott, JJ., concur in memorandum by Reynolds, J.

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Reynolds, J.

Appeal from a decision of the Unemployment Insurance Appeal Board ruling claimant ineligible for benefits effective October 30, 1967 on the ground that he was not available for employment (Labor Law, § 591, subd. 2). Whether a person is available for employment during a specific period is a question of fact and thus if the board’s determination is supported by substantial evidence it must be upheld (e.g. Matter of Ciganek [Catherwood], 30 A D 2d 607; Matter of Vitolo [Catherwood], 28 A D 2d 758). In the instant case there is ample evidence to support the finding of the board that “ during the period involved, claimant did not make an active or realistic search for work”. It is completely irrelevant and immaterial to the determination of the instant appeal that in previous years when the racing season had ended at Monticello claimant and other employees had received benefits or that claimant was ruled eligible during a period subsequent to the period in issue. The principles of estoppel and res judicata have no application in cases such as the instant case since the question of availability for employment is a continuing factor and of necessity requires a periodic examination of claimant’s effort in seeking to obtain work. Decision affirmed, without costs. Gibson, P. J., Herlihy, Reynolds, Cooke and Greenblott, JJ., concur in memorandum by Reynolds, J.

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Bluebook (online)

32 A.D.2d 864, 301 N.Y.S.2d 689, 1969 N.Y. App. Div. LEXIS 3627, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-claim-of-lunney-nyappdiv-1969.

Opinion

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