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In the Matter of the Claim of v. Commissioner of Labor

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


September 20, 2012

IN THE MATTER OF THE CLAIM OF SHAWNEY Y. WILLIS, APPELLANT.
v.
COMMISSIONER OF LABOR, RESPONDENT.

MEMORANDUM AND ORDER

Calendar Date: July 30, 2012

Before: Rose, J.P., Spain, Kavanagh, McCarthy and Egan Jr., JJ.

Appeal from a decision of the Unemployment Insurance Appeal Board, filed November 8, 2011, which ruled that claimant was disqualified from receiving unemployment insurance benefits because she voluntarily left her employment without good cause.

Claimant was employed as a sales representative for over 10 years when the employer announced that there was a surplus of 200 employees and a voluntary separation package was being offered. If there were not enough volunteers, the employer indicated that, pursuant to the union contract, it would begin by laying off employees with less than 10 years of service. Although claimant was not specifically told that her position would be eliminated, she accepted the severance package and her employment ended as of June 19, 2010. Claimant applied for unemployment insurance benefits, but the Unemployment Insurance Appeal Board denied them and ultimately ruled that claimant voluntarily left her job without good cause.

We affirm. Voluntary separation from employment in order to accept an early retirement or separation incentive package when, as here, continuing work is available has been held not to constitute good cause for leaving employment (see Matter of Powell [Commissioner of Labor], 79 AD3d 1507 [2010], lv denied 17 NY3d 701 [2011]; Matter of Cammisa [Commissioner of Labor], 38 AD3d 1146 [2007]). While there is no question that the employer indicated that there would be downsizing in the future, there is no proof in the record supporting claimant's assertion that her specific job was in jeopardy had she not accepted the separation package (see Matter of Moisides [Commissioner of Labor], 264 AD2d 879 [1999]). Accordingly, we find that substantial evidence supports the Board's decision (see Matter of Cammisa [Commissioner of Labor], 38 AD3d at 1146).

Rose, J.P., Spain, Kavanagh, McCarthy and Egan Jr., JJ., concur.

ORDERED that the decision is affirmed, without costs.

ENTER:

Robert D. Mayberger

Clerk of the Court

20120920

© 1992-2012 VersusLaw Inc.



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