In re the Claim of Russo

235 A.D.2d 895, 652 N.Y.S.2d 1021, 1997 N.Y. App. Div. LEXIS 531

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 23, 1997
• Status: Published

Opinion

Appeal from a decision of the Unemployment Insurance Appeal Board, filed March 12, 1996, which ruled that claimant was disqualified from receiving unemployment insurance benefits because he voluntarily left his employment without good cause.

Claimant was employed at an airport as a customer service support agent. When his department was "downsized”, claimant was offered the option of either working in the same position at the same salary on a half to full-time basis, depending on the workload, or of taking advantage of an early retirement program. Claimant chose to retire. The Unemployment Insurance Appeal Board subsequently ruled that claimant was disqualified from receiving unemployment insurance benefits on the ground that he left his employment without good cause.

An individual who chooses to participate in an early retirement incentive program when there is continuing work available to him has not left his employment for good cause (see, Matter of Fisher [Levine], 36 NY2d 146, 153; Matter of Bolognini [Defense Logistics Agency—Sweeney], 231 AD2d 793). In the instant matter, substantial evidence supports the Board’s finding that work was available .at the time of his retirement but that claimant nonetheless chose to take advantage of the employer’s early retirement program. The Board’s ruling that claimant is disqualified from receiving benefits is, accordingly, affirmed.

Cardona, P. J., Mikoll, White, Peters and Spain, JJ., concur. Ordered that the decision is affirmed, without costs.