SUPREME COURT OF NEW YORK, APPELLATE DIVISION, THIRD DEPARTMENT
October 22, 1968
IN THE MATTER OF THE CLAIM OF FRANCES H. CAPPY, APPELLANT. MARTIN P. CATHERWOOD, AS INDUSTRIAL COMMISSIONER, RESPONDENT
Gibson, P. J., Herlihy, Reynolds, 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 disqualifying the claimant from receiving benefits on the ground that she voluntarily left her employment without good cause. Claimant, a married woman, 62 years of age, worked as a beautician and manicurist in the City of New York for a period of 15 years. On June 27, 1967 she left her employment as a manicurist and moved to Los Angeles, California. Claimant contends that she has been suffering from an asthmatic condition since her childhood, and that she believed the climate, air pollution and working conditions in New York were making her asthmatic condition so bad that it was imperative that she leave the area for health reasons. Although she had been under the care of a physician, she had discontinued this treatment several months prior to leaving her job. The claimant also admits that this physician did not tell her to quit work or to move, but merely advised that a change of climate might help her. In any event, claimant submitted no medical proof. As the decision notes, claimant refused a referral of employment in the downtown section of Los Angeles, the city of her residence, because of "smog conditions" there, shown to be no different from those in the area of her residence nor, in fact, different from the conditions which she found deleterious to her health in New York. The issues presented are factual issues which are for the board to determine. (Labor Law, § 623; Matter of Ost [ Catherwood ], 26 A.D.2d 979; Matter of Solomon [ Catherwood ], 28 A.D.2d 618.) These issues have been resolved against the claimant, and the board's determination, which is supported by substantial evidence, must not be disturbed.
Decision affirmed, without costs.
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