IN RE: the Claim of Karen P. TAYLOR

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

IN RE: the Claim of Karen P. TAYLOR, Respondent. Naples Central School District, Appellant. Commissioner of Labor, Respondent.

Decided: May 26, 2005

Before:  CARDONA, J.P., CREW III, CARPINELLO, MUGGLIN and LAHTINEN, JJ. Harter, Secrest & Emery L.L.P., Rochester (Bethany A. Centrone of counsel), for appellant. Cynthia Feathers, Delmar, for Karen P. Taylor, respondent.

Appeal from a decision of the Unemployment Insurance Appeal Board, filed February 2, 2004, which ruled that claimant was eligible to receive unemployment insurance benefits.

Claimant has worked for the Naples Central School District (hereinafter employer) as a per diem substitute teacher since 1999.   She filed an application for unemployment insurance benefits on February 25, 2003.   The employer objected to the initial determinations of the Department of Labor that claimant was eligible to receive benefits on the basis that she was not totally unemployed and, therefore, sought a hearing.   The Administrative Law Judge determined that claimant stopped making and selling jewelry or tutoring prior to making any claim for unemployment insurance benefits, that she had not refused an offer of suitable employment from another school district without good cause and that she had made no claim during the summer recess for unemployment insurance benefits making Labor Law § 590(10) irrelevant.

While we find that substantial evidence supports the Administrative Law Judge's decision, which was affirmed by the Board, on these three secondary issues, we find that the Board failed to address the more fundamental objection of the employer, to wit, as this substitute teacher continues to be employed in the same manner and to the same extent as in past years, she is ineligible to receive unemployment insurance benefits because she is not totally unemployed.   The record indicates that claimant has received such benefits for one to three days per week during the benefit period although she worked as a substitute teacher on the other days of each week (see Matter of Papageorge [Commissioner of Labor], 220 A.D.2d 917, 632 N.Y.S.2d 687 [1995] ).   We are unable to discern from this record the basis upon which the Board found claimant to be eligible to receive benefits.   Accordingly, we withhold decision and remit this matter to the Board for consideration of this issue.

ORDERED that the decision is withheld, and matter remitted to the Unemployment Insurance Appeal Board for further proceedings not inconsistent with this Court's decision.

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