Opinion
Argued March 25, 1977
Decided May 3, 1977
Appeal from the Appellate Division of the Supreme Court in the Third Judicial Department.
Louis J. Lefkowitz, Attorney-General (Irving Jorrisch, Samuel A. Hirshowitz and Murray Sylvester of counsel), for appellant.
Isidore Berger, respondent pro se.
Order reversed, with costs, and the decision of the Unemployment Insurance Appeal Board reinstated. The board's determination that the employer-employee relationship continued until the claimant exhausted all of his leave credits was rational and should not be disturbed (Matter of Fisher [Levine], 36 N.Y.2d 146, 150, 153).
Concur: Chief Judge BREITEL and Judges JASEN, JONES, WACHTLER and FUCHSBERG. Judges GABRIELLI and COOKE dissent and vote to affirm on the memorandum at the Appellate Division ( 53 A.D.2d 730).