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Schwartz v. New York City Dep't of Education

State of New York Supreme Court, Appellate Division Third Judicial Department


December 10, 2009

IN THE MATTER OF THE CLAIM OF WENDY B. SCHWARTZ, APPELLANT.
v.
NEW YORK CITY DEPARTMENT OF EDUCATION, RESPONDENT.
COMMISSIONER OF LABOR, RESPONDENT.

MEMORANDUM AND ORDER

Calendar Date: November 4, 2009

Before: Cardona, P.J., Peters, Kane, Kavanagh and McCarthy, JJ.

Appeal from a decision of the Unemployment Insurance Appeal Board, filed February 23, 2009, which ruled that claimant was ineligible to receive unemployment insurance benefits because she had a reasonable assurance of continued employment.

Claimant was employed by the New York City Department of Education during the 2007-2008 school year as a per diem substitute teacher for a total of 149 days. On June 13, 2008, the employer sent claimant a letter assuring her of continued employment during the upcoming 2008-2009 school year, with the amount of work available and the economic terms and conditions of employment to be substantially the same as in the previous year. Claimant applied for unemployment insurance benefits for the summer of 2008 and the Unemployment Insurance Appeal Board ultimately determined that she was ineligible to receive them as she had received a reasonable assurance of continued employment pursuant to Labor Law § 590 (10). Claimant now appeals.

We affirm. A professional employee of an educational institution is precluded from receiving unemployment insurance benefits during the time between two successive academic years where the claimant has received a reasonable assurance of continued employment (see Labor Law § 590 [10]; Matter of Jeanty [New York City Dept. of Educ. -- Commissioner of Labor], 65 AD3d 1437, 1437-1438 [2009]). "A reasonable assurance... has been interpreted as a representation by the employer that substantially the same economic terms and conditions will continue to apply to the extent that the claimant will receive at least 90% of the earnings received during the first academic period" (Matter of Murphy [Copake-Taconic Cent. School Dist. -- Commissioner of Labor], 17 AD3d 762, 763 [2005] [citations omitted]; accord Matter of Papapietro [Commissioner of Labor], 34 AD3d 956, 957 [2006]). Here, insofar as the employer's letter, as well as the hearing testimony of the employer's representative, established that the employer intended to employ claimant for as many days in the 2008-2009 school year as in the previous year at a higher rate of pay, we find that the Board's determination is supported by substantial evidence (see Matter of Jeanty [Commissioner of Labor], 65 AD3d at 1438; Matter of Papapietro [Commissioner of Labor], 34 AD3d at 957; Matter of Cortorreal [New York City Dept. of Educ. -- Commissioner of Labor], 32 AD3d 1126, 1127 [2006]).

Cardona, P.J., Peters, Kane, Kavanagh and McCarthy, JJ., concur.

ORDERED that the decision is affirmed, without costs.

20091210

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