In re the Claim of Russo

Appellate Division of the Supreme Court of New York

In re the Claim of Russo

18 A.D.2d 846, 236 N.Y.S.2d 170, 1963 N.Y. App. Div. LEXIS 4860

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

DecidedJanuary 11, 1963

StatusPublished

This text of 18 A.D.2d 846 (In re the Claim of Russo) 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.

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In re the Claim of Russo, 18 A.D.2d 846, 236 N.Y.S.2d 170, 1963 N.Y. App. Div. LEXIS 4860 (N.Y. Ct. App. 1963).

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Opinions

Memorandum by the Court.

Appeal from a decision of the Unemployment Insurance Appeal Board.

This ease is quite similar in principle to Matter of Lauria (Catherwood) (18 A D 2d 848); but comes somewhat closer to section 593 (subd. 1, par. [b]) of the Labor Law. Claimant is a longshoreman. His wife left him and their three small children to live in Florida. Claimant could not induce her to return; nor could he adequately care for the children while working as a longshoreman. The only way he could obtain adequate care for the children was to go with them to Florida where the wife would take care of them. So he left his job and took the children with him to live with the wife. This may be literally “following his spouse” within the language of the 1960 amendment. But it was more than following the spouse just to go where she was for the sake of convenience and continuity of the marriage. It was, rather, going where the mother of his children was in order that they could get adequate care. This is a difference important enough to be outside the essential sense and meaning of the terms of the statutory disqualification. It is somewhat similar to a case of illness as far as the family and personal necessity pressing on the claimant was concerned. These facts, and the reasons stated are, of course, open to other evaluations and interpretations than the Unemployment Insurance Appeal Board gave them; but there is no demonstrated reason in the record why the board could not have accepted them factually and made a finding that claimant was not disqualified.

The decision should be affirmed, with costs to respondent.

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Memorandum by the Court.

Appeal from a decision of the Unemployment Insurance Appeal Board.

This ease is quite similar in principle to Matter of Lauria (Catherwood) (18 A D 2d 848); but comes somewhat closer to section 593 (subd. 1, par. [b]) of the Labor Law. Claimant is a longshoreman. His wife left him and their three small children to live in Florida. Claimant could not induce her to return; nor could he adequately care for the children while working as a longshoreman. The only way he could obtain adequate care for the children was to go with them to Florida where the wife would take care of them. So he left his job and took the children with him to live with the wife. This may be literally “following his spouse” within the language of the 1960 amendment. But it was more than following the spouse just to go where she was for the sake of convenience and continuity of the marriage. It was, rather, going where the mother of his children was in order that they could get adequate care. This is a difference important enough to be outside the essential sense and meaning of the terms of the statutory disqualification. It is somewhat similar to a case of illness as far as the family and personal necessity pressing on the claimant was concerned. These facts, and the reasons stated are, of course, open to other evaluations and interpretations than the Unemployment Insurance Appeal Board gave them; but there is no demonstrated reason in the record why the board could not have accepted them factually and made a finding that claimant was not disqualified.

The decision should be affirmed, with costs to respondent.

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Bluebook (online)

18 A.D.2d 846, 236 N.Y.S.2d 170, 1963 N.Y. App. Div. LEXIS 4860, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-claim-of-russo-nyappdiv-1963.