Opinion
August 18, 1983
Appeal from a decision of the Unemployment Insurance Appeal Board, filed September 15, 1982, which ruled that claimant was ineligible to receive benefits because she was reasonably assured of continued employment in an educational institution and charged her with a recoverable overpayment of benefits. Claimant appeals from an adverse determination of the Unemployment Insurance Appeal Board. Claimant, like the claimant in Matter of Jama ( City Univ. of N.Y. — Roberts) ( 96 A.D.2d 1007), taught English to foreign students at Queens College of the City University of New York and her application for benefits arose from a factual setting almost identical to that in Jama. As we determined in Jama, the employer's method of scheduling and staffing its classes did not afford claimant reasonable assurance within the meaning of subdivision 10 of section 590 Lab. of the Labor Law that the teaching position that she held would be continued to the next semester. Accordingly, claimant was entitled to benefits. Decision reversed, with costs, and matter remitted to the Unemployment Insurance Appeal Board for further proceedings not inconsistent herewith. Mahoney, P.J., Kane, Main and Casey, JJ., concur.
Mikoll, J., dissents and votes to affirm in the following memorandum.
I respectfully dissent. The claimant was an instructor in continuing education at Queens College, a unit of the City University of New York, for four years. Claimant had been solicited by her employer as to her availability for work in the next semester. This was a regular practice engaged in by the employer. Her rehire was conditioned only on a sufficient number of registered students. The record discloses that the number of students was on a rise. Under these facts, claimant had reasonable assurance of continued employment and was ineligible for benefits pursuant to subdivision 10 of section 590 Lab. of the Labor Law. Claimant, when applying for benefits, indicated that her unemployment was due to lack of students. She failed to indicate that she was unemployed in the midst of an intersession period. This was a false statement and benefits were properly recoverable (see Labor Law, § 597, subd 4). The decision should be affirmed.