In re the Claim of Tatem

26 A.D.2d 607, 271 N.Y.S.2d 385, 1966 N.Y. App. Div. LEXIS 3875

Opinion

Reynolds, J.

Appeal by the claimant from a decision of the Unemployment Insurance Appeal Board disqualifying claimant from benefits on the grounds that he voluntarily left his employment without good cause by provoking his discharge (Labor Law, § 593, subd. 1). The record reveals that on May 29, 1964 claimant, a product coder whose regular hours were 9 :00 a.m. to 5:00 p.m., despite the receipt just two days previously of an official memorandum that further unauthorized absences from the premises would not be permitted, was admitted to employer’s premises by the employer himself shortly before 9 :00 a.m. and then left for approximately 20 minutes without authorization in order to have breakfast. On his return he was discharged. Whether claimant’s actions constituted a voluntary leaving of employment without good cause by provoking his discharge is a factual determination for the board. The board under the facts of the instant case could properly find that claimant’s absence from the premises constituted a provocation of discharge (Matter of Gorman [Catherwood], 17 A D 2d 885; Matter of Malaspina [Corsi], 285 App. Div. 564, affd. 309 N. Y. 413). We find it immaterial here whether claimant left prior to 9:00 a.m. and thus technically might have been “ late ” rather than “ absent ”. Nor do we find any basis in claimant’s assertion that his rights were prejudiced by the Referee’s action at the hearing. Decision affirmed, without costs. Gibson, P. J, Herlihy, Taylor and Aulisi, JJ., concur.