Opinion
November 8, 1963
Present — Bergan, P.J., Gibson, Herlihy, Reynolds and Taylor, JJ.
Claimant appeals from a decision of the Unemployment Insurance Appeal Board dated February 2, 1962 which affirmed the Referee's finding that she provoked her discharge and thus voluntarily left her employment without good cause thereby disqualifying herself for benefits (Unemployment Insurance Law [Labor Law, art. 18], § 593, subd. 1, par. [a]) and from its decision dated November 20, 1962 which granted claimant's application to reopen for reconsideration the decision of February 2, 1962 upon which reconsideration the board adhered to the earlier decision. In early August, 1961 claimant requested and was granted a 30-day leave of absence from her employ, the expiration date of which was September 5. On August 31 she communicated to the employer a request for an additional indefinite leave ascribing as reasons therefor the illness of her mother who tended her two infant children while she and her husband were at work, the unpredictability of its duration and an inability to procure a person to act in her stead. The employer was unwilling to grant her application for an indefinite leave but expressed a willingness to grant an additional leave of definite and apparently substantial duration which claimant refused to accept. She failed to return to work on September 5. Following a conference between the employer and a representative of her union, attended also by her husband, on September 6 claimant was discharged. Claimant's insistence upon an unlimited grant of leave as a condition of continued employment and her nonacceptance of the employer's proffered one of definitive length in aid of the resolution of her domestic dilemma presented a factual question on the issue of provocation within the competency of the the board to determine. ( Matter of Karman [ Lubin], 2 A.D.2d 626; Matter of Salit [ Catherwood], 15 A.D.2d 852; Matter of Genza [ Catherwood], 16 A.D.2d 997.) Substantial evidence supports its decisions. Decision unanimously affirmed, without costs.