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In the Matter of the Claim of

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


April 18, 2013

IN THE MATTER OF THE CLAIM OF ROBERT F. RUBSCHA, APPELLANT. COMMISSIONER OF LABOR, RESPONDENT.

Appeal from a decision of the Unemployment Insurance Appeal Board, filed December 20, 2010, which ruled that claimant was disqualified from receiving unemployment insurance benefits because he voluntarily left his employment without good cause.

MEMORANDUM AND ORDER

Calendar Date: February 25, 2013

Before: Mercure, J.P., Lahtinen, Stein and Garry, JJ.

Claimant had worked as a mechanical design engineer for 29 years when his employer instituted a voluntary reduction in force program in an effort to avoid eventual layoffs. He had no information that his job would be eliminated, but nevertheless accepted the severance package out of concern that he or his co-workers would be laid off. Inasmuch as leaving a job in order to take advantage of a severance or early retirement package when continuing work is available does not constitute good cause for leaving one's employment, substantial evidence supports the determination of the Unemployment Insurance Appeal Board that claimant voluntarily left his employment without good cause (see Matter of Keane [Commissioner of Labor], 93 AD3d 1002, 1003 [2012], lv denied 20 NY3d 854 [2013]; Matter of Powell [Commissioner of Labor], 79 AD3d 1507, 1507 [2010], lv denied 17 NY3d 701 [2011]). Substantial evidence further supports the Board's finding that claimant received retirement incentives identical to those that he would have been provided had he been laid off and that, as a result, he lacked "a compelling financial incentive to leave his job" (Matter of Biedka [Hudacs], 196 AD2d 944, 944 [1993]; see Matter of Fisher [Levine], 36 NY2d 146, 153 [1975]).

Mercure, J.P., Lahtinen, Stein and Garry, JJ., concur.

ORDERED that the decision is affirmed, without costs.

ENTER:

Robert D. Mayberger Clerk of the Court

20130418

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