Opinion
November 3, 1971
Appeal by the claimant from a decision of the Unemployment Insurance Appeal Board ruling claimant's benefit rate to be reduced pursuant to section 600 Lab. of the Labor Law from $65 weekly to $19 weekly because he received a pension or retirement payment under a plan wholly financed by the employer. Determination of this appeal previously withheld ( Matter of Lipsky [ Catherwood], 36 A.D.2d 870) and reargument had to consider the application and effect of Matter of Guilfoyle [ Dow Jones Co. — Catherwood] ( 36 A.D.2d 108). Claimant's contentions are without merit and the record contains substantial evidence to sustain the board's determination (Labor Law, § 623; Matter of Steiner [ Catherwood], 31 A.D.2d 669, affd. 25 N.Y.2d 819) if claimant was in fact "retired" within the meaning of section 600 Lab. of the Labor Law (see Matter of Guilfoyle [ Dow Jones Co. — Catherwood], supra). Since the record is incomplete on this crucial question and the pension plan was first submitted upon reargument, we must remand for a determination whether claimant was "retired" under section 600 Lab. of the Labor Law upon the facts and circumstances here in accordance with Matter of Guilfoyle ( Catherwood) ( supra). Decision reversed, and matter remitted for further proceedings not inconsistent herewith, without costs. Reynolds, J.P., Aulisi, Staley, Jr., Cooke and Simons, JJ., concur.