IN RE: the Claim of Livio A. NUNEZ

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

IN RE: the Claim of Livio A. NUNEZ, Appellant. Commissioner of Labor, Respondent.

Decided: July 28, 2005

Before:  CARDONA, P.J., SPAIN, MUGGLIN, ROSE and KANE, JJ. Livio A. Nunez, New York City, appellant pro se. Eliot Spitzer, Attorney General, Albany (Mary Hughes of counsel), for respondent.

Appeal from a decision of the Unemployment Insurance Appeal Board, filed September 7, 2004, which ruled that claimant was disqualified from receiving unemployment insurance benefits because he voluntarily left his employment without good cause.

Claimant was employed as a security officer at a bank from January 2003 until his resignation in May 2004.   Upon being informed that his two-year-old son was ill, claimant resigned from his employment with the intention of traveling to the Philippines to bring back his son, who was being cared for by relatives there.   Claimant's subsequent application for unemployment insurance benefits was denied and a hearing was held, after which the Administrative Law Judge sustained the initial determination, finding that claimant had voluntarily left his employment without good cause.   The Unemployment Insurance Appeal Board affirmed that determination and claimant now appeals.

 “[A]bsent a medically compelling reason, an employee who leaves employment to care for a sick relative will be considered to have voluntarily left his or her employment without good cause” (Matter of Kuhns [Commissioner of Labor], 16 A.D.3d 826, 827, 790 N.Y.S.2d 750 [2005];  see Matter of Uemura [Commissioner of Labor], 308 A.D.2d 632, 632, 764 N.Y.S.2d 213 [2003];  Matter of Munoz [Commissioner of Labor], 301 A.D.2d 1014, 1014, 754 N.Y.S.2d 704 [2003] ).   Here, claimant made no showing of medical necessity inasmuch as the record discloses that his son's health improved shortly after he resigned and that, as a result, claimant did not go to the Philippines.   Moreover, by resigning before ascertaining the status of his leave of absence request, claimant failed to take reasonable steps to protect his employment (see Matter of Uemura [Commissioner of Labor], supra at 632, 764 N.Y.S.2d 213;  Matter of Jing Ying Zeng [Commissioner of Labor], 268 A.D.2d 747, 702 N.Y.S.2d 169 [2000] ).   Under these circumstances, substantial evidence supports the Board's decision that claimant voluntarily left his employment without good cause (see Matter of Kuhns [Commissioner of Labor], supra at 827, 790 N.Y.S.2d 750).

ORDERED that the decision is affirmed, without costs.

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