State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: March 17, 2016 520366 

________________________________

In the Matter of the Claim of 

ZHANNA ROSSEYCHUK, 

Respondent.

CITY OF NEW YORK, MEMORANDUM AND ORDER

Appellant.

COMMISSIONER OF LABOR, 

Respondent.

________________________________

Calendar Date: February 16, 2016

Before: McCarthy, J.P., Egan Jr., Lynch, Devine and Clark, JJ.

__________

Zachary W. Carter, Corporation Counsel, New York City

(Victoria Scalzo of counsel), for appellant.

Thomas F. Garner, Middleburgh, for Zhanna Rosseychuk,

respondent.

__________

Egan Jr., J.

Appeal from a decision of the Unemployment Insurance Appeal

Board, filed April 8, 2014, which ruled that claimant was

entitled to receive unemployment insurance benefits.

Claimant was employed as a bookkeeper in the Office of

Child Support Enforcement for the City of New York. Pursuant to

the Administrative Code of the City of New York, claimant was

required to become a resident of the City within 90 days of being

hired and to maintain such residency. Thereafter, claimant was

discharged after the employer determined that she did not comply

with the residency requirements. Claimant's application for
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unemployment insurance benefits was denied by a decision of an

Administrative Law Judge on the ground that she voluntarily left

her employment without good cause inasmuch as she provoked her

discharge by not complying with the employer's residency policy. 

The Unemployment Insurance Appeal Board, without resolving the

issue of whether claimant was in full compliance with the

employer's residency policy, reversed that decision on the ground

that the voluntary transgression prong of the doctrine of

provoked discharge had not been established so as to find that

claimant voluntarily left her employment without good cause. 

This appeal ensued. 

"Provoked discharge . . . is a narrowly drawn legal fiction

designed to apply where an employee voluntarily engages in

conduct which transgresses a legitimate known obligation and

leaves the employer no choice but to discharge him [or her]"

(Matter of De Grego [Levine], 39 NY2d 180, 183 [1976] [internal

citation omitted]). "Whether [a] claimant's actions constituted

a voluntary leaving of employment without good cause by provoking

his [or her] discharge is a factual determination for the

[B]oard" (Matter of Fishbein [Catherwood], 28 AD2d 1059, 1059

[1967] [citations omitted]). Here, claimant's testimony

established that she began living with her cousin in an apartment

in New York City in an attempt to comply with the employer's

residency requirements, as well as to accommodate her school

schedule. Although claimant also spent time with her husband in

an apartment outside New York City, the employer acknowledged

that an individual could maintain more than one residence, even

if one was outside New York City, and still be in compliance with

the residency requirement. Claimant pays her cousin money to

live in the apartment and to help offset expenses, and she

receives mail at that address, including bank account and credit

card statements. Claimant also pays New York City income taxes. 

Moreover, claimant testified that, because she did not fully

understand the residency requirement, she inquired to both her

supervisor and the employer's personnel department as to whether

she was considered to be in compliance with the necessary

requirement; however, those inquiries went unanswered. Under

these circumstances, substantial evidence supports the Board's

finding that claimant did not voluntarily engage in conduct that

transgressed the employer's mandate so as to find that she
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provoked her discharge (compare Matter of Ball [City of

Syracuse–Commissioner of Labor], 70 AD3d 1151, 1152-1153 [2010];

Matter of Keenan [Levine], 51 AD2d 596, 596 [1976]). 

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

ORDERED that the decision is affirmed, without costs.

ENTER:

Robert D. Mayberger

Clerk of the Court