SUPREME COURT OF NEW YORK, APPELLATE DIVISION, THIRD DEPARTMENT
June 24, 1969
IN THE MATTER OF THE CLAIM OF WILLIAM R. LUNNEY, APPELLANT. MARTIN P. CATHERWOOD, AS INDUSTRIAL COMMISSIONER, RESPONDENT
Reynolds, J. Gibson, P. J., Herlihy, Reynolds, Cooke and Greenblott, JJ., concur in memorandum by Reynolds, J.
Appeal from a decision of the Unemployment Insurance Appeal Board ruling claimant ineligible for benefits effective October 30, 1967 on the ground that he was not available for employment (Labor Law, § 591, subd. 2). Whether a person is available for employment during a specific period is a question of fact and thus if the board's determination is supported by substantial evidence it must be upheld (e.g. Matter of Ciganek [ Catherwood ], 30 A.D.2d 607; Matter of Vitolo [ Catherwood ], 28 A.D.2d 758). In the instant case there is ample evidence to support the finding of the board that "during the period involved, claimant did not make an active or realistic search for work". It is completely irrelevant and immaterial to the determination of the instant appeal that in previous years when the racing season had ended at Monticello claimant and other employees had received benefits or that claimant was ruled eligible during a period subsequent to the period in issue. The principles of estoppel and res judicata have no application in cases such as the instant case since the question of availability for employment is a continuing factor and of necessity requires a periodic examination of claimant's effort in seeking to obtain work.
Decision affirmed, without costs.
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