                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: July 28, 2016                     522190
________________________________

In the Matter of the Claim of
   MARK J. FRANKLIN,
                    Appellant.
                                            MEMORANDUM AND ORDER
COMMISSIONER OF LABOR,
                    Respondent.
________________________________


Calendar Date:   June 6, 2016

Before:   McCarthy, J.P., Egan Jr., Lynch, Clark and Aarons, JJ.

                             __________


      Law Offices of Dorfman & Dorfman, Freeport (Jeffrey K.
Weiner of counsel), for appellant.

      Eric T. Schneiderman, Attorney General, New York City
(Marjorie S. Leff of counsel), for respondent.

                             __________


      Appeal from a decision of the Unemployment Insurance Appeal
Board, filed February 24, 2015, which ruled, among other things,
that claimant was disqualified from receiving unemployment
insurance benefits because he voluntarily left his employment
without good cause.

      Substantial evidence supports the decision of the
Unemployment Insurance Appeal Board finding that claimant,
employed as a Sony specialist with a marketing firm, voluntarily
left his employment without good cause (see Labor Law § 593 [1]
[a]; Matter of LaRocca [New York City Dept. of Transp.–Roberts],
59 NY2d 683, 685 [1983]). The record establishes that claimant
had recently received a written warning regarding his
absenteeism/tardiness that notified him that failure to
immediately improve his performance/behavior "may result in
further corrective action up to and including termination of
                              -2-                522190

[his] employment." Shortly thereafter, claimant was accused by
his market manager of not being at the store when scheduled to
work and was notified that he was removed from the schedule until
further notice and that human resources would be in contact with
him. In response, claimant resigned believing that, because he
was unable to prove that he was at work on the particular day in
question, his discharge from employment was imminent/inevitable.

      Under certain circumstances, "claimant[s] who voluntarily
leave[] [their] position in the face of disciplinary charges may
qualify for unemployment benefits if [their] actions [do] not
amount to misconduct" (Matter of Jimenez [New York County Dist.
Attorney's Off.–Commissioner of Labor], 20 AD3d 843, 843 [2005]
[internal quotation marks and citation omitted]; see Matter of
Cohen [Town of Brookhaven–Commissioner of Labor], 91 AD3d 998,
998 [2012], lv dismissed 19 NY3d 831 [2012]). Here, claimant was
not facing disciplinary charges when he quit and did not present
a compelling reason to leave his employment (compare Matter of
LaRocca [New York City Dept. of Transp.–Roberts], 59 NY2d at 685;
Matter of Straw [Rocky Point Union Free School Dist.–Commissioner
of Labor], 32 AD3d 1098, 1099 [2006]). According to his own
testimony, claimant merely presumed that he would face
disciplinary action because he had been recently warned and his
manager referred the matter to human resources. Claimant
admitted that he did not wait to be contacted by his manager nor
did he discuss the matter with his manager, and he testified that
he wanted a "clean break from the [employer]." However, in the
absence of disciplinary charges, "resigning . . . in anticipation
of discharge does not constitute good cause for leaving one's
employment" (Matter of Kanter [Commissioner of Labor], 138 AD3d
1283, 1283 [2016]; see Matter of Zerrillo [Commissioner of
Labor], 91 AD3d 1011, 1012 [2012]; Matter of Seiglar
[Commissioner of Labor], 51 AD3d 1118, 1118 [2008]). As the
Board's decision that claimant voluntarily left his employment
without good cause is supported by substantial evidence, it will
not be disturbed.

      Furthermore, because claimant indicated on his application
for unemployment insurance benefits that his employment ended due
to lack of work, the Board's finding that he made willful false
statements and its assessment of a recoverable overpayment of
                              -3-                  522190

benefits will not be disturbed (see Matter of Davis [Commissioner
of Labor], 125 AD3d 1040, 1041 [2015]; Matter of Ferreira
[Commissioner of Labor], 84 AD3d 1609, 1610-1611 [2011]).

      McCarthy, J.P., Egan Jr., Lynch, Clark and Aarons, JJ.,
concur.



     ORDERED that the decision is affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
