In re the Claim of Ortega

49 A.D.2d 977, 374 N.Y.S.2d 363, 1975 N.Y. App. Div. LEXIS 11287

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 30, 1975
• Status: Published

Opinion

Appeal from a decision of the Unemployment Insurance Appeal Board, filed March 20, 1974, which affirmed the decision of a referee sustaining the initial determinations of the Industrial Commissioner disqualifying claimant from receiving benefits effective December 23, 1973 because he voluntarily left his employment without good cause by provoking his discharge, and holding that the claimant wilfully made a false statement to obtain benefits by reason of which a forfeiture of four effective days was imposed as a penalty in reduction of his future benefit rights. In Matter of James (Levine) (34 NY2d 491) the doctrine of provoked discharge has been limited and should not be employed in cases where the employer may or may not choose to discharge the unsatisfactory employee. Here, there is substantial evidence to support the finding that claimant’s employment was terminated because he failed to call in promptly when absent despite repeated warnings and after having been suspended for two weeks on a previous occasion for failing to call in when absent. Under such circumstances, claimant could have been disqualified for misconduct. Adopting the procedure followed in Matter of James (Levine) (supra), the decision of the board should be affirmed rather than remitting the claim to reassess the conclusion. There is also substantial evidence to support the factual finding by the board that claimant wilfully made a false statement to obtain benefits. The resolution of the factual issues is a matter within the sole province of the board and its determination is final since it is supported by substantial evidence (Matter of Rubinstein [Catherwood], 33 AD2d 950). Decision affirmed, without costs. Greenblott, J. P., Kane, Koreman, Larkin and Reynolds, JJ., concur.