In re the Claim of Ost

26 A.D.2d 979, 274 N.Y.S.2d 691, 1966 N.Y. App. Div. LEXIS 3070

Opinion

Reynolds, J.

Appeal by the claimant from a decision of the Unemployment Insurance Appeal Board denying him benefits on the grounds that he left his employment to follow his spouse to another locality (Labor Law, § 593, -subd. 1, par. [b]). The determination of whether claimant left his employment to follow his spouse to another locality is factual and thus the board’s determination must be upheld if supported by substantial evidence (Labor Law, § 623). Coneededly there are cases in which we have upheld the board’s awarding of benefits where the board has found factually a compelling necessity for the claimant’s physical presence in another locality (Matter of Lauria [Catherwood], 18 A D 2d 848; Matter of Russo [Catherwood], 18 A D 2d 846), but here the board has rejected any such contention and found his sole reason for leaving was his decision to follow his wife to California. This conclusion is supported by the fact that claimant’s wife was not suffering from any physical disability at the time of the move and by claimant’s own assertion that he left “to keep the family intact ”. At best we find presented here factual issues as to claimant’s reasons for leaving employment. Thus we cannot say that as a matter of law that the board could not reach the decision rendered. Decision affirmed, without costs. Gibson, P. J., Herlihy, Aulisi and Staley, Jr., JJ., concur.