In re the Claim of Mercurio

Appellate Division of the Supreme Court of New York

In re the Claim of Mercurio

241 A.D.2d 662, 661 N.Y.S.2d 56, 1997 N.Y. App. Div. LEXIS 7360

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

DecidedJuly 10, 1997

StatusPublished

This text of 241 A.D.2d 662 (In re the Claim of Mercurio) 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 Mercurio, 241 A.D.2d 662, 661 N.Y.S.2d 56, 1997 N.Y. App. Div. LEXIS 7360 (N.Y. Ct. App. 1997).

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Opinion

Appeals (1) from a decision of the Unemployment Insurance Appeal Board, filed September 17, 1996, which, upon reconsideration, adhered to its previous decision ruling that claimant was ineligible to receive unemployment insurance benefits because she did not have sufficient weeks of employment to file a valid original claim, and (2) from a decision of the Board, filed November 14, 1996, which denied claimant’s application for reopening and reconsideration of the prior decision.

As part of the employer’s reduction in workforce, claimant voluntarily resigned from her employment, in consideration for which she received dismissal pay from January 3, 1995 through November 5, 1995. The payments were guaranteed, even if claimant obtained new employment during this period. Claimant remained unemployed up to the time she applied for unemployment insurance benefits on December 6, 1995. We agree with the decision of the Unemployment Insurance Appeal Board that claimant was ineligible to receive benefits because she lacked sufficient weeks of employment in her base period, having been employed during only five of the 52 weeks preceding her application (see, Labor Law § 527 [1] [d]). The fact that the employer may have, as claimant argues, labeled the payments as “salary continuance” is not dispositive in this case (see, Matter of Woody [Roberts], 139 AD2d 879, 880). It is uncontested that claimant performed no work for any employer during the time she collected dismissal pay. Hence, this period did not constitute a period of employment that would render claimant eligible for benefits (see, Matter of Terranova [Hudacs], 211 AD2d 847, 848; Matter of Barrett [Hudacs], 191 AD2d 920, 921).

[663]*663Cardona, P. J., Mercure, Crew III, Yesawich Jr. and Carpinello, JJ., concur. Ordered that the decisions are affirmed, without costs.

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Appeals (1) from a decision of the Unemployment Insurance Appeal Board, filed September 17, 1996, which, upon reconsideration, adhered to its previous decision ruling that claimant was ineligible to receive unemployment insurance benefits because she did not have sufficient weeks of employment to file a valid original claim, and (2) from a decision of the Board, filed November 14, 1996, which denied claimant’s application for reopening and reconsideration of the prior decision.

As part of the employer’s reduction in workforce, claimant voluntarily resigned from her employment, in consideration for which she received dismissal pay from January 3, 1995 through November 5, 1995. The payments were guaranteed, even if claimant obtained new employment during this period. Claimant remained unemployed up to the time she applied for unemployment insurance benefits on December 6, 1995. We agree with the decision of the Unemployment Insurance Appeal Board that claimant was ineligible to receive benefits because she lacked sufficient weeks of employment in her base period, having been employed during only five of the 52 weeks preceding her application (see, Labor Law § 527 [1] [d]). The fact that the employer may have, as claimant argues, labeled the payments as “salary continuance” is not dispositive in this case (see, Matter of Woody [Roberts], 139 AD2d 879, 880). It is uncontested that claimant performed no work for any employer during the time she collected dismissal pay. Hence, this period did not constitute a period of employment that would render claimant eligible for benefits (see, Matter of Terranova [Hudacs], 211 AD2d 847, 848; Matter of Barrett [Hudacs], 191 AD2d 920, 921).

[663]*663Cardona, P. J., Mercure, Crew III, Yesawich Jr. and Carpinello, JJ., concur. Ordered that the decisions are affirmed, without costs.

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241 A.D.2d 662, 661 N.Y.S.2d 56, 1997 N.Y. App. Div. LEXIS 7360, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-claim-of-mercurio-nyappdiv-1997.

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