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MATTER CLAIM ANASTASIA DISBURY (12/13/68)

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, THIRD DEPARTMENT


December 13, 1968

IN THE MATTER OF THE CLAIM OF ANASTASIA DISBURY, APPELLANT. MARTIN P. CATHERWOOD, AS INDUSTRIAL COMMISSIONER, RESPONDENT

Appeal by the claimant from a decision of the Unemployment Insurance Appeal Board, filed October 25, 1967, disqualifying claimant from unemployment insurance benefits on the ground she voluntarily left her employment without good cause by provoking her discharge.

Gabrielli, J. Herlihy, J. P., Reynolds, Aulisi, Staley, Jr., and Gabrielli, JJ., concur in memorandum by Gabrielli, J.

Author: Gabrielli

In March, 1967 claimant, who had a poor attendance record, was warned that her absence might jeopardize her employment. On April 3 she left work early after advising her supervisor her eyes bothered her. On April 7 she telephoned her employer to inquire if she still had her job and was advised that because of the attendance record her employment was being terminated April 28 but, if claimant returned on April 10 and worked to the 28th, she would receive one week's vacation pay, whereupon she stated she would advise her employer. It appears her eyes still bothered her but she at no time thereafter communicated with or notified her employer and her position was then filled by a permanent replacement. There was substantial evidence to justify the board's finding, based upon the prior record and failure to report, that the claimant had provoked her discharge; and having failed to meet a condition of her work, she became separated by her own volition. (Labor Law, ยง 593, subd. 1; Matter of Broussard [ Catherwood ], 28 A.D.2d 1017; Matter of Hueber [ Catherwood ], 24 A.D.2d 781.)

 Disposition

Decision affirmed, without costs.

19681213

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