Opinion
February 13, 1979
Motion for reargument and renewal granted, without costs and upon reargument and renewal decision dated July 27, 1978 and order entered August 8, 1978 withdrawn and the following decision rendered: In a decision dated December 9, 1976, claimant was informed that she would not receive unemployment insurance benefits on the ground that she was discharged for misconduct. Subsequently, claimant requested and received a hearing to challenge this determination. The "Notice of Hearing" advised claimant that the purpose of the hearing was to determine whether claimant lost her employment through misconduct and any other related issue. The statement by the referee at the commencement of the hearing did not extend the scope of the hearing to any other issue. On January 18, 1977 the referee sustained the initial determination upon a finding that claimant voluntarily left her employment without good cause. The Unemployment Insurance Appeal Board affirmed the referee's determination by decision dated March 21, 1977. Under the circumstances presented herein, claimant was not given adequate notice to prepare her defense (Matter of Fraekorn [Levine], 35 N.Y.2d 869, revg 42 A.D.2d 917; cf. Matter of Brooks [Levine], 38 N.Y.2d 965). The decision should be reversed, with costs, and matter remitted to the Unemployment Insurance Appeal Board for further proceedings not inconsistent herewith. Greenblott, J.P., Kane, Staley, Jr., Main and Herlihy, JJ., concur.