State of New York Supreme Court, Appellate Division Third Judicial Department
May 6, 2010
IN THE MATTER OF THE CLAIM OF ROBERT P. POLISSENI, APPELLANT.
COMMISSIONER OF LABOR, RESPONDENT.
MEMORANDUM AND ORDER
Calendar Date: April 7, 2010
Before: Spain, J.P., Lahtinen, Kavanagh, McCarthy and Egan Jr., JJ.
Appeal from a decision of the Unemployment Insurance Appeal Board, filed August 28, 2009, which ruled that claimant was disqualified from receiving unemployment insurance benefits because he voluntarily left his employment without good cause.
Claimant worked as an information technology audit manager for the employer for approximately six years before he retired in December 2008. He thereafter applied for unemployment insurance benefits in February 2009, and the Unemployment Insurance Appeal Board determined that he was ineligible on the basis that he voluntarily separated from his employment without good cause. Claimant appeals and we affirm.
Whether a claimant has voluntarily left employment without good cause, and is therefore disqualified from receiving benefits, is a determination for the Board and its decision will be upheld where it is supported by substantial evidence (see Matter of Grace [Astrocom Elecs., Inc.-Commissioner of Labor], 69 AD3d 1156, 1157 ; Matter of Fahey [Youner-Commissioner of Labor], 41 AD3d 1124, 1125 ).
Voluntarily separating from employment in order to retire when the option of continuing work remains available does not ordinarily constitute good cause for leaving employment (see Matter of Standford [Commissioner of Labor], 54 AD3d 1095, 1096 ; Matter of Lucht [Commissioner of Labor], 49 AD3d 1048, 1049 ; Matter of Scism [Commissioner of Labor], 27 AD3d 938, 938 ; Matter of Berlowitz [Brighton Cent. School Dist.-Commissioner of Labor], 12 AD3d 763, 764 ; Matter of Pullano [Commissioner of Labor], 294 AD2d 747, 748 ). The record here reflects that continuing work was available when claimant notified the employer -- in advance -- that he was going to retire on a given date. Another employee was then promoted to assume claimant's position upon that retirement date. Claimant's testimony that he discovered, in the interim before the effective date of his retirement, that his finances were inadequate to retire and that his request to withdraw his retirement could not be accommodated due to a hiring freeze, does not alter the conclusion that claimant voluntarily left his employment without good cause (see Matter of Vitale [Levine], 50 AD2d 703, 704 ). Thus, regardless of claimant's intent to either remain in or withdraw from the job market upon his retirement from this employment, he is disqualified from receiving unemployment insurance benefits.
Spain, J.P., Lahtinen, Kavanagh, McCarthy and Egan Jr., JJ., concur.
ORDERED that the decision is affirmed, without costs.
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