                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: November 5, 2015                   520565
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In the Matter of the Claim of
   ASHLEY PEEK,
                    Appellant.

COMMISSIONER OF LABOR,                      MEMORANDUM AND ORDER
                    Respondent.
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Calendar Date:   September 22, 2015

Before:   Peters, P.J., Lahtinen, Garry and Lynch, JJ.

                             __________


     Ashley Peek, New York City, appellant pro se.

      Eric T. Schneiderman, Attorney General, New York City
(Bessie Bazile of counsel), for respondent.

                             __________


      Appeal from a decision of the Unemployment Insurance Appeal
Board, filed July 17, 2014, which ruled that claimant was
ineligible to receive unemployment insurance benefits because she
was not available for employment.

      For approximately seven years, claimant worked as a dietary
aide for a food service company at a hospital. Her two-year-old
son had an asthma attack one day while she was at work and she
felt that neither her husband nor her mother-in-law, who were
caring for him at the time, responded appropriately.
Consequently, she immediately resigned from her position to care
for her son. Claimant applied for unemployment insurance
benefits, but the Department of Labor found, among other things,
that she was ineligible to receive them because she was not
available for work. This determination was sustained by an
Administrative Law Judge following a hearing. The Unemployment
Insurance Appeal Board thereafter affirmed the Administrative Law
                              -2-                  520565

Judge's decision and claimant now appeals.

      We affirm. Pursuant to Labor Law § 591 (2), a claimant
will not be deemed eligible to receive unemployment insurance
benefits if he or she is "not ready, willing and able to work in
his [or her] usual employment or in any other for which he [or
she] is reasonably fitted by training and experience." A
claimant who is unable to work due to the lack of child-care
arrangements may be considered to be unavailable for work for
purposes of receiving unemployment insurance benefits (see Matter
of Johnson [Commissioner of Labor], 25 AD3d 1053, 1054 [2006];
Matter of Pastore [Commissioner of Labor], 2 AD3d 1172, 1172
[2003]). Here, it is undisputed that claimant left her job to
care for her son and she testified that, after she did so, her
mother-in-law moved away and her husband took a job with long
hours that precluded her from relying upon them for childcare.
She further stated that she could not afford to put her son in
day care and that he could not be placed in a Head Start program
until he was three years old. In view of the foregoing,
substantial evidence supports the Board's finding that claimant
was ineligible to receive benefits because she was unavailable
for work.

     Peters, P.J., Lahtinen, Garry and Lynch, JJ., concur.



     ORDERED that the decision is affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
