In re the Claim of Salerno

Appellate Division of the Supreme Court of New York

In re the Claim of Salerno

279 A.D.2d 935, 719 N.Y.S.2d 621, 2001 N.Y. App. Div. LEXIS 733

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

DecidedJanuary 25, 2001

StatusPublished

Cited by6 cases

This text of 279 A.D.2d 935 (In re the Claim of Salerno) 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 Salerno, 279 A.D.2d 935, 719 N.Y.S.2d 621, 2001 N.Y. App. Div. LEXIS 733 (N.Y. Ct. App. 2001).

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Opinion

Appeal from a decision of the Unemployment Insurance Appeal Board, filed November 29, 1999, which ruled, inter alia, that claimant was disqualified from receiving unemployment insurance benefits because he voluntarily left his employment without good cause.

Claimant, a radiation therapist, was reassigned to the hospital billing department after the radiology and oncology unit of the hospital was closed. Claimant’s salary, hours and benefits did not change in his new position and he was a member of a protected status, meaning that he could not be laid off from his transferred position. Thereafter, claimant resigned in order to take advantage of a voluntary buy-out incentive retirement option, whereby he was paid a $25,000 lump sum and began receiving monthly pension payments. Claimant admits that the decision to accept the early retirement incentive was “strictly voluntary” and he was not in jeopardy of losing his job. Under these circumstances, substantial evidence supports the decision of the Unemployment Insurance Appeal Board finding that claimant was not entitled to unemployment insurance benefits because he voluntarily left his employment in order to take part in an early retirement incentive package (see, Matter of Szumelak [Commissioner of Labor], 260 AD2d 884; Matter of Leung [Sweeney], 219 AD2d 741, 742). Furthermore, inasmuch as there is no dispute that the employer fully funded his pension, claimant’s benefit rate was properly reduced (see, Labor Law § 600 [7]).

Cardona, P. J., Mercure, Crew III, Rose and Lahtinen, JJ., concur. Ordered that the decision is affirmed, without costs.

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Appeal from a decision of the Unemployment Insurance Appeal Board, filed November 29, 1999, which ruled, inter alia, that claimant was disqualified from receiving unemployment insurance benefits because he voluntarily left his employment without good cause.

Claimant, a radiation therapist, was reassigned to the hospital billing department after the radiology and oncology unit of the hospital was closed. Claimant’s salary, hours and benefits did not change in his new position and he was a member of a protected status, meaning that he could not be laid off from his transferred position. Thereafter, claimant resigned in order to take advantage of a voluntary buy-out incentive retirement option, whereby he was paid a $25,000 lump sum and began receiving monthly pension payments. Claimant admits that the decision to accept the early retirement incentive was “strictly voluntary” and he was not in jeopardy of losing his job. Under these circumstances, substantial evidence supports the decision of the Unemployment Insurance Appeal Board finding that claimant was not entitled to unemployment insurance benefits because he voluntarily left his employment in order to take part in an early retirement incentive package (see, Matter of Szumelak [Commissioner of Labor], 260 AD2d 884; Matter of Leung [Sweeney], 219 AD2d 741, 742). Furthermore, inasmuch as there is no dispute that the employer fully funded his pension, claimant’s benefit rate was properly reduced (see, Labor Law § 600 [7]).

Cardona, P. J., Mercure, Crew III, Rose and Lahtinen, JJ., concur. Ordered that the decision is affirmed, without costs.

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Bluebook (online)

279 A.D.2d 935, 719 N.Y.S.2d 621, 2001 N.Y. App. Div. LEXIS 733, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-claim-of-salerno-nyappdiv-2001.

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