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IN RE: the Claim of Rose A. FAHEY (2007)

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Supreme Court, Appellate Division, Third Department, New York.

IN RE: the Claim of Rose A. FAHEY, Respondent. Johanna S. Youner, Appellant. Commissioner of Labor, Respondent.

Decided: June 28, 2007

Before:  MERCURE, J.P., SPAIN, CARPINELLO, LAHTINEN and KANE, JJ. Johanna S. Youner, New York City, appellant pro se. James W. Cooper, Warrensburg, for Rose A. Fahey, respondent.

Appeal from a decision of the Unemployment Insurance Appeal Board, filed September 27, 2006, which ruled that claimant was entitled to receive unemployment insurance benefits.

Claimant was employed by a physician and her duties included managing the office as well as being its receptionist for approximately six years.   According to claimant, on the morning of Friday, May 19, 2006 she had to leave work before her employer arrived because she fell ill.   Claimant attempted to contact the employer, but was unsuccessful.   The following day, a Saturday, she e-mailed the employer asking why she had not heard from her;  the e-mail also discussed some of claimant's frustrations.   The employer sent several responses citing to problems with claimant's work and at one point stating “let's just be done.”   In addition, claimant received a phone call from a coworker telling claimant that the employer asked the coworker to get the office keys back from her and claimant never returned to work.   The Unemployment Insurance Appeal Board determined that claimant's employment had ended in a nondisqualifying manner and, as such, she was eligible to receive unemployment insurance benefits.   This appeal by the employer ensued.

 The factual issue of whether a claimant has voluntarily left employment is for the Board to resolve and its determination will not be disturbed so long as it is supported by substantial evidence in the record (see Matter of Mineo [County of Erie-Commissioner of Labor], 307 A.D.2d 611, 762 N.Y.S.2d 186 [2003] ).   Here, the Board concluded that claimant truly believed that she had been fired based on the communications from the employer.   Given that the record contains substantial evidence to support the Board's factual findings, we affirm (see Matter of Putterman [Winston & Winston-Commissioner of Labor], 10 A.D.3d 753, 781 N.Y.S.2d 541 [2004] ).   To the extent that the employer's version of the circumstances leading to claimant's leaving differed from that of claimant, this conflict created a credibility issue for the Board to resolve (see Matter of Crespo [Upton, Cohen & Slamowitz-Commissioner of Labor], 251 A.D.2d 842, 673 N.Y.S.2d 340 [1998] ).   The employer's remaining contentions have been considered and rejected for lack of merit.

ORDERED that the decision is affirmed, without costs.

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