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Matter of Levine

Appellate Division of the Supreme Court of New York, Third Department
Nov 27, 1974
46 A.D.2d 841 (N.Y. App. Div. 1974)

Opinion

November 27, 1974


Appeal from a decision of the Unemployment Insurance Appeal Board disqualifying the claimant from benefits because he voluntarily left his employment without good cause by provoking his discharge and holding claimant willfully made a false statement to obtain benefits for which a forfeiture of four effective days was imposed. Respondent urges that in accordance with the Court of Appeals decision in Matter of James ( Levine) ( 34 N.Y.2d 491) where the board finds a provoked discharge if all the necessary implied findings of loss of employment through misconduct are present the board's decision should, nevertheless, be affirmed. However, in the instant case the board adopted the findings of fact and opinion of the referee who specifically held that it was "unnecessary to decide the misconduct issue". Faced with this state of the record, it is impossible to infer a finding of misconduct and the case must be remitted to the board for further determination as to whether the test set forth in James has, in fact, been met in the instant case. Decision reversed, with costs, and matter remitted to the Unemployment Insurance Appeal Board for further proceedings not inconsistent herewith. Staley, Jr., J.P., Sweeney, Kane, Main and Reynolds, JJ., concur.


Summaries of

Matter of Levine

Appellate Division of the Supreme Court of New York, Third Department
Nov 27, 1974
46 A.D.2d 841 (N.Y. App. Div. 1974)
Case details for

Matter of Levine

Case Details

Full title:In the Matter of ANDRES LLANO, Appellant. LOUIS L. LEVINE, as Industrial…

Court:Appellate Division of the Supreme Court of New York, Third Department

Date published: Nov 27, 1974

Citations

46 A.D.2d 841 (N.Y. App. Div. 1974)