SUPREME COURT OF NEW YORK, APPELLATE DIVISION, THIRD DEPARTMENT
May 21, 1969
IN THE MATTER OF THE CLAIM OF CECIL DOMINIQUE, APPELLANT. MARTIN P. CATHERWOOD, AS INDUSTRIAL COMMISSIONER, RESPONDENT
Appeal from a decision of the Unemployment Insurance Appeal Board, filed October 10, 1967, which, upon reopening and reconsideration, adhered to its original decision, filed January 24, 1967, disqualifying claimant from unemployment insurance benefits on the ground that he voluntarily left his employment without good cause by provoking his discharge.
Gibson, P. J., Herlihy, Reynolds, Cooke and Greenblott, JJ., concur in memorandum Per Curiam.
Author: Per Curiam
Whether claimant's conduct constituted a voluntary leaving of employment without good cause by provoking his discharge is a factual determination for the board (Labor Law, § 623, Matter of Fishbein [ Catherwood ], 28 A.D.2d 1059; Matter of Bartels [ Catherwood ], 28 A.D.2d 1018; Matter of Monahan [ Catherwood ], 27 A.D.2d 781), issues of credibility regarding the alleged disruptive conduct of claimant during employment being in the sole province of the board (Matter of Gadson [ Catherwood ], 28 A.D.2d 1049; Matter of Golia [ Catherwood ], 27 A.D.2d 594). The board had a right to find from the testimony, although disputed, that claimant's outward, persistent and offensive behavior during employment was such that one could reasonably anticipate would lead to intolerable disruption, great business loss and eventual termination of the work relation, amounting to an election not to meet a condition of the work, and that claimant became separated from his employment by his own choice (cf. Matter of Gadson [ Catherwood ], supra ; Matter of Socol [ Catherwood ], 29 A.D.2d 1020; Matter of MacDevitt [ Catherwood ], 29 A.D.2d 588; Matter of Irizarry [ Catherwood ], 28 A.D.2d 765; Matter of Lewis [ Catherwood ], 25 A.D.2d 473; Matter of Gorman [ Catherwood ], 17 A.D.2d 885; Matter of Malaspina [ Corsi ], 285 App. Div. 564, affd. 309 N. Y. 413). It was warranted in concluding that claimant "deliberately engaged in a course of conduct calculated to result in his discharge from the job".
Decision affirmed, without costs.
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