IN RE: the Claim of Ralph POLESE

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

IN RE: the Claim of Ralph POLESE, Appellant. Commissioner of Labor, Respondent.

Decided: January 28, 1999

Before:  CARDONA, P.J., MERCURE, YESAWICH Jr., SPAIN and CARPINELLO, JJ. Janet Oldham Koehler, Islip, for appellant. Eliot Spitzer, Attorney-General (Marjorie S. Leff of counsel), New York City, for respondent.

Appeal from a decision of the Unemployment Insurance Appeal Board, filed December 1, 1997, which, inter alia, ruled that claimant was disqualified from receiving unemployment insurance benefits because he voluntarily left his employment without good cause.

After being informed that his full-time position as a bus driver for a State mental hospital was targeted for a layoff, claimant accepted an early retirement incentive package instead of inquiring about retaining a job through his seniority bumping rights.   Claimant thereafter resigned from his part-time position as a custodian for the North Babylon School District (hereinafter the School District) in Suffolk County so that he would be able to immediately draw on his pension from his full-time employer;  claimant would not have been able to do this while the School District was still contributing to his pension fund.   The Unemployment Insurance Appeal Board ultimately ruled, inter alia, that claimant was disqualified from receiving benefits because he voluntarily left his employment with the School District without good cause.

 We affirm.   Notwithstanding claimant's testimony that he did not intend to resign but merely wanted to cease any further contribution to his pension fund by the School District, thereby entitling him to immediate receipt of his pension, the Board was free to credit the conflicting testimony of a representative from the School District who testified that she discussed the ramifications of the resignation with him (see, Matter of Borlang [B & M Sports-Commissioner of Labor], 254 A.D.2d 632, 679 N.Y.S.2d 433).   Moreover, claimant received a letter from the School District stating that his resignation had been accepted.   Under these circumstances, substantial evidence supports the Board's decision that claimant voluntarily left his employment without good cause (see generally, Matter of Balla [Sweeney], 227 A.D.2d 787, 788, 642 N.Y.S.2d 102).   Furthermore, inasmuch as claimant failed to list the School District as an employer on his application for benefits despite a clear instruction on it to list all employers in the preceding 12-month period, we find no reason to disturb the Board's finding that claimant made willful false statements to obtain benefits.

ORDERED that the decision is affirmed, without costs.


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