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In re Claim of Galindo

Supreme Court of New York, Third Department

July 11, 2013

In the Matter of the Claim of KAREN L. GALINDO, Appellant. and BOARD OF HIGHER EDUCATION, CITY UNIVERSITY OF NEW YORK, Respondent. COMMISSIONER OF LABOR, Respondent.

Calendar Date: June 6, 2013

Karen Cacace, The Legal Aid Society, New York City, for appellant.

Michael A. Cardozo, Corporation Counsel, New York City (Elizabeth I. Freedman of counsel), for Board of Higher Education, City University of New York, respondent.

Before: Rose, J.P., Lahtinen, McCarthy and Garry, JJ.

MEMORANDUM AND ORDER

Appeal from a decision of the Unemployment Insurance Appeal Board, filed January 30, 2012, which ruled that claimant was ineligible to receive unemployment insurance benefits because she was unable to file a valid original claim.

Claimant began working as an office assistant for the City University of New York (hereinafter CUNY) in August 2005. In September 2006, claimant began taking classes at a community college affiliated with CUNY and continued working full time for CUNY, thereby obtaining a tuition fee waiver. In August 2010, at the time claimant earned her degree, her employment with CUNY was discontinued by agreement. The initial determination that claimant was ineligible for benefits because her base period of employment with CUNY was excluded under Labor Law § 511 (15) was sustained after a hearing and affirmed by the Unemployment Insurance Appeal Board. Claimant now appeals.

Labor Law § 511 (15) excludes from employment "services rendered for an educational institution by a person who is enrolled and is in regular attendance as a student in such an institution." The determination of whether a claim falls into this exclusion requires an inquiry into the facts and circumstances of the employment to determine whether the primary purpose of the work was to earn a living or to further the claimant's education (see Matter of Siu [Sweeney], 244 A.D.2d 689, 690 [1997]; Matter of Sukhov [Sweeney], 243 A.D.2d 1024, 1024 [1997]). As the record contains substantial evidence supporting the factual finding of the Board that claimant was "in regular attendance as a student" and, therefore, ineligible for benefits pursuant to the statute, we will not disturb its determination (see Labor Law § 511 [15]; Matter of Siu [Sweeney], 244 A.D.2d at 690; Matter of Sukhov [Sweeney], 243 A.D.2d at 1024-1025; compare Matter of Druc [Hudacs], 205 A.D.2d 1004, 1004-1005 [1994]).

Rose, J.P., Lahtinen, McCarthy and Garry, JJ., concur.

ORDERED that the decision is affirmed, without costs.


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