SUPREME COURT OF NEW YORK, APPELLATE DIVISION, THIRD DEPARTMENT
December 11, 1969
IN THE MATTER OF THE CLAIM OF ANGELO OXIOS, APPELLANT. MARTIN P. CATHERWOOD, AS INDUSTRIAL COMMISSIONER, RESPONDENT
Appeal by the claimant from a decision of the Unemployment Insurance Appeal Board disqualifying claimant from receiving benefits on the ground that he voluntarily left his employment without good cause by provoking his discharge (Labor Law, § 593, subd. 1, par. [a]).
Reynolds, J. Herlihy, P. J., Reynolds, Staley, Jr., Greenblott and Cooke, JJ., concur in memorandum by Reynolds, J.
The board has found that claimant, a messenger for a law firm, provoked his discharge and thus left employment without good cause by refusing to make two deliveries as directed by his employer. The determination as to what transpired between the employer and employee is factual and the issues of fact and credibility involved are within the sole province of the board if supported by substantial evidence (e.g., Matter of Dominique [ Catherwood ], 32 A.D.2d 718; Matter of Weinberger [ Catherwood ], 22 A.D.2d 995). Similarly the issue as to whether the action of the employee which brings about his discharge constitutes a voluntary leaving of employment is factual and thus again for the board if its decision is supported by substantial evidence (e.g., Matter of Day [ Catherwood ], 26 A.D.2d 851; Matter of Karman [ Lubin ], 2 A.D.2d 626). On the instant record we find no basis to disturb the board's resolution of these factual issues.
Decision affirmed, without costs.
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