State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: February 5, 2015 518312 

________________________________

In the Matter of the Claim of

WILLIAM B. ROSENBAUM,

Respondent.

BOROUGH OF MANHATTAN COMMUNITY MEMORANDUM AND ORDER

 COLLEGE, CITY UNIVERSITY OF

 NEW YORK,

Appellant.

COMMISSIONER OF LABOR,

Respondent.

________________________________

Calendar Date: December 2, 2014

Before: McCarthy, J.P., Rose, Lynch and Clark, JJ.

__________

Zachary W. Carter, Corporation Counsel, New York City

(Susan Paulson of counsel), for appellant.

Murphy, Burns, Barber & Murphy, LLP, Albany (Catherine A.

Barber of counsel), for William B. Rosenbaum, respondent.

__________

Appeal from a decision of the Unemployment Insurance Appeal

Board, filed February 6, 2013, which, upon reconsideration,

adhered to its prior decision ruling that claimant was eligible

to receive unemployment insurance benefits. 

Claimant has worked for the employer as an adjunct lecturer

since 1991. During the 2010-2011 academic year, he worked a

total of 150 hours, 105 hours in the 2010 fall semester and 45

hours in the 2011 spring semester, at an hourly rate of $80.70. 

At the close of the 2010-2011 academic year, he received a letter

from the employer offering to reappoint him to the same position
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for the 2011 fall and 2012 spring semesters at the hourly rate of

$80.70. The appointment was "subject to sufficiency of

enrollment, financial availability and curriculum need." Shortly

after receiving this letter, the employer informed claimant that

he would be assigned to work 45 hours during the 2011 fall

semester, but did not specify his assignment for the 2012 spring

semester. Claimant applied for unemployment insurance benefits

between academic terms and was initially deemed ineligible on the

basis that he had received a reasonable assurance of continued

employment from the employer for the next academic year. 

Following a hearing, an Administrative Law Judge overruled this

determination and found that claimant was eligible to receive

benefits because the employer did not provide him with a

reasonable assurance of continued employment under Labor Law

§ 590 (10). The Unemployment Insurance Appeal Board affirmed,

and adhered to its decision upon reconsideration. The employer

now appeals.

Labor Law § 590 (10) precludes professionals employed by

educational institutions from receiving unemployment insurance

benefits for periods between two successive academic years when

the employer has provided them with a reasonable assurance of

continued employment (see Matter of Cardin [Erie Community Coll.-

Commissioner of Labor], 119 AD3d 1014, 1014-1015 [2014], lv

denied ___ NY3d ___ [Jan. 20, 2015]; Matter of Murphy

[Commissioner of Labor], 85 AD3d 1478, 1479 [2013]). "A

reasonable assurance . . . has been interpreted as a

representation by the employer that substantially the same

economic terms and conditions will continue to apply to the

extent that the claimant will receive at least 90% of the

earnings received during the first academic period" (Matter of

Murphy [Copake-Taconic Cent. School Dist.–Commissioner of Labor],

17 AD3d 762, 763 [2005] [citations omitted]). Whether a claimant

received a reasonable assurance of employment is a question of

fact for the Board to resolve and its findings in this regard

will be upheld if supported by substantial evidence (see Matter

of Cardin [Erie Community Coll.–Commissioner of Labor], 119 AD3d

at 1015; Matter of Ganster [Commissioner of Labor], 111 AD3d

1014, 1014 [2013]). 
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Here, claimant worked 150 hours during the 2010-2011

academic year, but was only offered 45 hours during the 2011-2012

academic year, limited to the 2011 fall semester. The employer

did not specify any hours for the 2012 spring semester either in

its reappointment letter or notice advising claimant of his

assignment, and claimant was offered significantly fewer hours

during the 2011 fall semester than he had worked during the 2010

fall semester. Given that the economic terms of the offer of

reappointment during the 2011-2012 academic year were

substantially less favorable than claimant's earnings during the

2010-2011 academic year, substantial evidence supports the

Board's finding that the employer did not provide claimant with a

reasonable assurance of continued employment under Labor Law

§ 590 (10) (see Matter of Scott [South Colonie Cent. School

Dist.–Commissioner of Labor], 28 AD3d 1027, 1028 [2006]; Matter

of Murphy [Copake-Taconic Cent. School Dist.–Commissioner of

Labor], 17 AD3d at 763]).

McCarthy, J.P., Rose, Lynch and Clark, JJ., concur.

ORDERED that the decision is affirmed, without costs.

ENTER:

Robert D. Mayberger

Clerk of the Court