SUPREME COURT OF NEW YORK, APPELLATE DIVISION, THIRD DEPARTMENT
October 22, 1968
IN THE MATTER OF THE CLAIM OF STEPHANIE O'NEILL, APPELLANT. MARTIN P. CATHERWOOD, AS INDUSTRIAL COMMISSIONER, RESPONDENT
Gibson, P. J., Herlihy, Aulisi, Staley, Jr., and Gabrielli, JJ., concur in memorandum by Herlihy, J.
Claimant appeals from a decision of the Unemployment Insurance Appeal Board dated February 13, 1968 which affirmed an initial determination of the respondent disqualifying claimant from receiving benefits effective July 31, 1967. The claimant in accordance with the policy of her employer was separated from work on July 28, 1967 because she was then entering her eighth month of pregnancy. After separation from work the claimant relied primarily on the telephone in her efforts to secure temporary work and there is substantial evidence to sustain the board's finding that claimant's "excessive reliance on telephone calls, coupled with the advanced state of her pregnancy, compel the conclusion that claimant's job efforts were token in nature and not those of a person genuinely interested in obtaining employment during the relatively short period in which her physician permitted her to remain in the labor market." The present record presented a question of fact to the board as to whether or not the claimant sought employment with due diligence and accordingly, the finding of the board that claimant was unavailable for employment may not be disturbed by this court when supported by substantial evidence. (See Matter of Cyprus [ Catherwood ], 29 A.D.2d 811; Matter of Vitolo [ Catherwood ], 28 A.D.2d 758; Matter of Lauro [ Catherwood ], 14 A.D.2d 604.)
Decision affirmed, without costs.
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