Opinion
August 18, 1983
Appeal from a decision of the Unemployment Insurance Appeal Board, filed December 29, 1982, which ruled that claimant was entitled to receive benefits from December 18, 1981 to January 24, 1982. Since 1978, claimant was employed by Queens College of the City University of New York, where she taught English to foreign students. Whether the English classes were held depended on the enrollment of an adequate number of students, which the employer did not determine until sometime after the close of the previous semester and perhaps not until the beginning of the semester. After the conclusion of the fall, 1981 semester, claimant applied for unemployment benefits and was determined to be ineligible because she had reasonable assurance of continued employment in an instructional capacity within the meaning of subdivision 10 of section 590 Lab. of the Labor Law. This initial determination was overruled by the administrative law judge who found that claimant did not have reasonable assurance of continued employment. The Unemployment Insurance Appeal Board affirmed, and this appeal by the employer challenging claimant's entitlement to benefits ensued. The record discloses that claimant was asked if she was available to continue teaching during the next semester, but there is no indication that she was ever notified that there would be a job available (see Matter of Scully [ Roberts], 88 A.D.2d 689) or that she would be reappointed (see, e.g., Matter of Gaeta [ Ross], 78 A.D.2d 742, mot for lv to app den 52 N.Y.2d 703). Furthermore, although proof of past hiring practices may, in certain circumstances, demonstrate that a claimant had reasonable assurance of continued employment under subdivision 10 of section 590 Lab. of the Labor Law (see Matter of Williams [ City School Dist. of Binghamton — Ross], 81 A.D.2d 928, mot for lv to app den 54 N.Y.2d 608), we cannot say that claimant's past rehiring provided the requisite reasonable assurance of continued employment. The continuation of the position that claimant held was dependent upon the enrollment of an adequate number of students and, because the employer did not rely on past enrollment to schedule future classes, the past enrollment cannot be relied on as reasonable assurance that future enrollment would be adequate to continue the position. Thus, without knowing whether the position would be continued, claimant could not have had reasonable assurance of continued employment. Accordingly, the board's determination that claimant was eligible for benefits because her past rehiring did not provide reasonable assurance of continued employment in an educational institution under subdivision 10 of section 590 Lab. of the Labor Law should be affirmed. Decision affirmed, with costs to claimant. Mahoney, P.J., Kane, Main and Casey, JJ., concur.
Mikoll, J., dissents and votes to reverse in the following memorandum.
I respectfully dissent. Claimant was an instructor of continuing education at Queens College, a unit of the City University of New York, since 1978. The board held that claimant was eligible for unemployment benefits between semesters because she did not have reasonable assurance that she would be engaged by the college at the next term. There should be a reversal. Claimant had been asked about her availability for work before the end of the fall semester. She indicated that she was available. This procedure was consistently used in the past during her four years of employment. Her reappointment was conditional only on a sufficient registration of students. Under these circumstances, claimant had reasonable assurance of re-employment and is, therefore, ineligible for benefits pursuant to subdivision 10 of section 590 Lab. of the Labor Law. The board's decision to the contrary is irrational and unreasonable (see Matter of Silverman [ Ross], 82 A.D.2d 955; Matter of Wilson [ Ross], 80 A.D.2d 980; Matter of Gaeta [ Ross], 78 A.D.2d 742, mot for lv to app den 52 N.Y.2d 703). The amount paid to her is not recoverable in that she received the payments in good faith. Her answers to the commissioner's inquiries regarding her eligibility were entirely candid. Under such circumstances, a recovery is foreclosed pursuant to subdivision 4 of section 597 Lab. of the Labor Law. The decision should be reversed, without costs, and the matter remitted to the Unemployment Insurance Appeal Board for further proceedings not inconsistent herewith.