SUPREME COURT OF NEW YORK, APPELLATE DIVISION, THIRD DEPARTMENT
October 17, 1968
IN THE MATTER OF THE CLAIM OF ISAIAH O. DARWIN, APPELLANT. MARTIN P. CATHERWOOD, AS INDUSTRIAL COMMISSIONER, RESPONDENT
Herlihy, J. P., Reynolds, Aulisi, Staley, Jr., and Gabrielli, JJ., concur in memorandum by the court.
Memorandum by the Court. Appeal from a decision of the Unemployment Insurance Appeal Board, filed February 9, 1968, holding claimant ineligible to receive benefits effective June 26, 1967, on the ground that he was not totally unemployed. (Labor Law, § 522.) Claimant is an elementary school teacher in Creedmore State Hospital, a State mental institution, with an annual salary of $7,980. His work year begins early in September and ends in the latter part of June. His salary is paid in 20 equal installments, payable every two weeks during the 10 months work year from September through June. Prior to July 1, 1966 the annual salary had been paid in 26 installments over a 12-month period, but the method of payment was changed effective July 1, 1966, by an amendment to section 136 of the Civil Service Law, which provided for the payment of the annual salary in 20 equal installments. Claimant was not required to work during July and August and, from June 23, 1967 until September, 1967, did not work because of the summer recess. During the summer months a teacher could utilize the time for further academic training, if he so desired. The board found that, since the claimant was compensated on an annual basis, he should not be considered unemployed during the summer season. Section 136 of the Civil Service Law, as amended by chapter 454 of the Laws of 1965, which provided that the total salary due to institutional teachers for any year shall be paid over a period of 10 months, did not create a condition under which such teachers would be considered totally unemployed during the summer recess. The determination of the board that claimant was not totally unemployed for the months of July and August, 1967 cannot be said to lack rational basis or to be arbitrary or capricious, and must be accepted by us. (Matter of Newman [ Catherwood ], 24 A.D.2d 1042; Matter of Bell [ Corsi ], 282 App. Div. 634; Matter of Kaftan [ Corsi ], 283 App. Div. 759.)
Decision affirmed, without costs.
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