Opinion
June 10, 1976
Appeal from a decision of the Unemployment Insurance Appeal Board, filed August 12, 1975, which affirmed the decision of a referee sustaining initial determinations of the Industrial Commissioner holding claimant to be ineligible for benefits under the Special Unemployment Assistance Program (SUA) because he was ineligible under both subdivisions 1 and 2 of section 527 Lab. of the Labor Law. Claimant, an attorney with New York City and the New York City Housing Authority for 43 years, retired because of age on June 30, 1974. On March 21, 1975 he filed a claim for benefits pursuant to the provisions of SUA, which claim was rejected because he had only 15 weeks of employment rather than the 20 weeks required by subdivision 1 of section 527 Lab. of the Labor Law. While it appears that claimant was eligible under subdivision 2 of section 527 Lab. of the Labor Law entitled "Alternate condition" in that he had at least 15 weeks of employment in the year preceding the date of his claim and at least 40 weeks during the two years preceding his claim, it was similarly rejected on the ground that said "Alternate condition" does not apply to claims under SUA. The inapplicability of subdivision 2 of section 527 Lab. of the Labor Law is mandated by section 205 of the Special Unemployment Assistance Program (US Code, tit 26, § 3304; Special Unemployment Assistance Program, § 205), which, in pertinent part, states: "Sec. 205 Weekly benefit amount * * * (a) The amount of assistance under this title to which an eligible individual shall be entitled for a week of unemployment shall be the weekly benefit amount for a week of unemployment that would be payable to the individual * * * under the provisions of the applicable State unemployment compensation law; Provided, That in computing the weekly benefit amount under this subsection the individual's base year, notwithstanding the State law, shall be the fifty-two-week period preceding the first week with respect to which the individual: (1) files a claim for assistance" (emphasis supplied). The board construes the cited provision of SUA to mean that "eligibility" for benefits is limited to those employees who had at least 20 weeks of employment in the "base year" immediately preceding the first week in which a claim for benefits is filed, regardless of the eligibility criteria set forth in subdivision 2 of section 527 Lab. of the Labor Law, which were fully met by claimant. We agree. The application of section 205 of the SUA to the factual situation herein, excluding claimant from benefits, can only be understood by reference to section 203 of the SUA. This latter section, entitled "Eligible Individuals", provides, in pertinent part, that an individual shall be eligible for Federal assistance if (1) he is not eligible for compensation under any State or Federal unemployment compensation law, (2) he meets the qualifying employment and wage requirements of the applicable State unemployment law in a base year which, notwithstanding the State law, shall be the 52-week period preceding the first week with respect to which the individual files a claim for assistance, and (3) is totally or partially unemployed. Since the claimant herein retired on July 1, 1974 and did not file for benefits pursuant to the Federal program until March 17, 1975, he thereby established a base year running from March 18, 1974 to March 17, 1975. It follows, therefore, that since under the Federal program the base year is the 52 weeks immediately preceding the week of application for benefits, subdivision 2 of section 527 Lab. of the Labor Law providing an alternate condition of eligibility, dependent upon a base year of 104 weeks, is not applicable. Next, the claimant herein fails to meet the qualifying employment and wage requirements of subdivision 1 of section 527 Lab. of the Labor Law in that he was not employed for a minimum of 20 weeks in the 52 weeks preceding his application for Federal assistance. Consequently, he is not an "eligible individual" under either subdivision of 527 and thereby fails to meet the Federal eligibility requirements set forth in both sections 203 and 205 of the SUA. Claimant's other contentions to the effect that there was not adequate publication of the new Federal regulation and that a $2,000 lump sum payment to him by his former municipal employer constituted continuance on the public payroll are without merit. Decision affirmed, without costs. Kane, J.P., Mahoney, Main, Larkin and Herlihy, JJ., concur.