SUPREME COURT OF NEW YORK, APPELLATE DIVISION, THIRD DEPARTMENT
December 27, 1968
IN THE MATTER OF THE CLAIM OF EVA DE MARIA, APPELLANT. MARTIN P. CATHERWOOD, AS INDUSTRIAL COMMISSIONER, RESPONDENT
Appeal by claimant from a decision of the Unemployment Insurance Appeal Board holding claimant ineligible to receive benefits effective August 13, 1966 to September 28, 1966, on the ground she was not totally unemployed.
Gibson, P. J., Herlihy, Aulisi, Staley, Jr., and Gabrielli, JJ., concur in memorandum by Aulisi, J.
Claimant, employed in the Brooklyn post office was, after prior warning, notified of her proposed removal from service for failure to report for a fitness for duty examination and was placed on a leave without pay status as of August 12, 1966. Upon civil service appeal of her dismissal, it was determined that although her removal was sustained it was improper to place her on enforced leave without pay during the notice period. Thereafter, in accordance with the appellate determination, claimant received salary payments covering the period August 13, 1966 to September 28, 1966. The record is clear that claimant was on active duty status with the post office during the claimed benefit period, received salary for the period, and even before the end of the period obtained new employment. The board's determination that claimant was not totally unemployed and was, therefore, ineligible for benefits is fully supported by substantial evidence.
Decision affirmed, without costs.
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