IN RE: the Claim of Lynn S. JOWERS (1997)

Appeal from a decision of the Unemployment Insurance Appeal Board, filed June 11, 1996, which ruled that claimant was ineligible to receive unemployment insurance benefits because he was not totally unemployed.

In April 1995, claimant, a youth aide in a security facility, was placed on administrative leave pending an investigation regarding contraband which was given to an inmate at the security facility.   Following an investigation, claimant was discharged from his employment in September 1995 but remained on the employer's payroll and received regular paychecks until October 24, 1995 when his accrued sick, personal and vacation days were exhausted.   The Unemployment Insurance Appeal Board found that claimant was not totally unemployed during the period in which he remained on the employer's payroll and denied him unemployment insurance benefits during that period.   We agree.   Because an employer-employee relationship continues until accrued leave credits are exhausted, a claimant is not totally unemployed during such period (see, Matter of Berger [Ross], 41 N.Y.2d 1065, 1066, 396 N.Y.S.2d 184, 364 N.E.2d 848;  Matter of Fuchs [Hartnett], 177 A.D.2d 769, 575 N.Y.S.2d 989).   As it is undisputed that claimant was receiving a paycheck until October 24, 1995 pursuant to his accrued leave credits, we find that the Board's decision is supported by substantial evidence and it is, accordingly, affirmed.   To the extent that claimant contests his termination due to misconduct, such issue was not the subject of the hearing and, therefore, cannot be raised on this appeal.

ORDERED that the decision is affirmed, without costs.

MEMORANDUM DECISION.