Opinion
March 13, 1975
Appeal from a decision of the Unemployment Insurance Appeal Board, filed June 6, 1973, which reversed a referee's decision in favor of claimant and sustained the respondent's initial determination that the claimant was disqualified from benefits upon the ground that he voluntarily left his employment without good cause by provoking his discharge. Among other things, the board found that the claimant had engaged in gambling activities upon the premises of his employer, a bank. The record contains substantial evidence to support the findings of the board. The board, however, in its decision utilized the now discredited doctrine of provoked discharge as a basis for claimant's disqualification from benefits. (See Matter of James [ Levine], 34 N.Y.2d 491.) The record establishes that the claimant knew he was engaging in an illegal activity contrary to the policy of his employer and, since the activity would clearly be misconduct within the meaning of the James case, it would serve no purpose to remit the matter to the board for further proceedings. Decision affirmed, without costs. Herlihy, P.J., Greenblott, Sweeney, Main and Larkin, JJ., concur.