State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: December 1, 2016 522427 

________________________________

In the Matter of the Claim of

CARL O. GILL,

Respondent.

PHOENIX ENERGY MANAGEMENT MEMORANDUM AND ORDER

INC.,

Appellant.

COMMISSIONER OF LABOR,

Respondent.

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Calendar Date: October 25, 2016

Before: McCarthy, J.P., Egan Jr., Clark, Mulvey and Aarons, JJ.

__________

Bee Ready Fishbein Hatter & Donovan, LLP, Mineola (Deanna

D. Panico of counsel), for appellant.

Salvatore C. Adamo, Albany, for Carl O. Gill, respondent.

__________

Appeal from a decision of the Unemployment Insurance Appeal

Board, filed April 1, 2015, which ruled that claimant was

eligible to receive unemployment insurance benefits.

Claimant initially worked for the employer as a welder. 

Following an injury resulting in his extended absence from work,

the employer terminated claimant's employment in April 2013 for

staffing reasons. Shortly thereafter, in June 2013, claimant was

rehired by the employer as a boiler mechanic. He subsequently

filed several grievances contesting, among other things, the

denial of a pay increase and vacation leave. In addition,

between February 2014 and April 2014, claimant made several

requests for leaves of absence for differing reasons. The
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employer initially denied these requests, but ultimately granted

claimant an indefinite leave of absence on April 28, 2014. 

Following an arbitration hearing, claimant signed a settlement

agreement under which he received a payment of $10,000 from the

employer and agreed to resign from his position effective May 1,

2014.

Thereafter, claimant filed an application for unemployment

insurance benefits. His application was initially denied on the

ground that he was disqualified from receiving benefits because

he voluntarily left his employment without good cause. Claimant

requested a hearing and, at its conclusion, an Administrative Law

Judge sustained the initial determination. The Unemployment

Insurance Appeal Board, however, reversed this decision and ruled

that claimant was entitled to receive benefits. The employer now

appeals. 

Under the circumstances presented, claimant's resignation

and acceptance of the $10,000 payment in settlement of

outstanding grievances and other claims constitutes a voluntary

separation from employment disqualifying him from receiving

unemployment insurance benefits (see Matter of Livingston

[Hudacs], 210 AD2d 721, 722 [1994]; Matter of Mathison [County of

Dutchess–Hudacs], 203 AD2d 832, 832-833 [1994], lv denied 83 NY2d

760 [1994]). There is no indication that claimant was forced to

accept the settlement agreement or that he was subject to

disciplinary action if he did not. Consequently, the Board's

decision finding claimant eligible to receive benefits is not

supported by substantial evidence and must be reversed. Although

the employer maintains that claimant is subject to a forfeiture

of benefits based upon his willful misrepresentation, this issue

was not before the Board and is not properly before this Court.

McCarthy, J.P., Egan Jr., Clark, Mulvey and Aarons, JJ.,

concur.
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ORDERED that the decision is reversed, without costs, and

matter remitted to the Unemployment Insurance Appeal Board for

further proceedings not inconsistent with this Court's decision.

ENTER:

Robert D. Mayberger

Clerk of the Court