                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: February 5, 2015                   518312
________________________________

In the Matter of the Claim of
   WILLIAM B. ROSENBAUM,
                    Respondent.

BOROUGH OF MANHATTAN COMMUNITY              MEMORANDUM AND ORDER
   COLLEGE, CITY UNIVERSITY OF
   NEW YORK,
                    Appellant.

COMMISSIONER OF LABOR,
                    Respondent.
________________________________


Calendar Date:   December 2, 2014

Before:   McCarthy, J.P., Rose, Lynch and Clark, JJ.

                             __________


      Zachary W. Carter, Corporation Counsel, New York City
(Susan Paulson of counsel), for appellant.

      Murphy, Burns, Barber & Murphy, LLP, Albany (Catherine A.
Barber of counsel), for William B. Rosenbaum, respondent.

                             __________


      Appeal from a decision of the Unemployment Insurance Appeal
Board, filed February 6, 2013, which, upon reconsideration,
adhered to its prior decision ruling that claimant was eligible
to receive unemployment insurance benefits.

      Claimant has worked for the employer as an adjunct lecturer
since 1991. During the 2010-2011 academic year, he worked a
total of 150 hours, 105 hours in the 2010 fall semester and 45
hours in the 2011 spring semester, at an hourly rate of $80.70.
At the close of the 2010-2011 academic year, he received a letter
from the employer offering to reappoint him to the same position
                              -2-                518312

for the 2011 fall and 2012 spring semesters at the hourly rate of
$80.70. The appointment was "subject to sufficiency of
enrollment, financial availability and curriculum need." Shortly
after receiving this letter, the employer informed claimant that
he would be assigned to work 45 hours during the 2011 fall
semester, but did not specify his assignment for the 2012 spring
semester. Claimant applied for unemployment insurance benefits
between academic terms and was initially deemed ineligible on the
basis that he had received a reasonable assurance of continued
employment from the employer for the next academic year.
Following a hearing, an Administrative Law Judge overruled this
determination and found that claimant was eligible to receive
benefits because the employer did not provide him with a
reasonable assurance of continued employment under Labor Law
§ 590 (10). The Unemployment Insurance Appeal Board affirmed,
and adhered to its decision upon reconsideration. The employer
now appeals.

      Labor Law § 590 (10) precludes professionals employed by
educational institutions from receiving unemployment insurance
benefits for periods between two successive academic years when
the employer has provided them with a reasonable assurance of
continued employment (see Matter of Cardin [Erie Community Coll.-
Commissioner of Labor], 119 AD3d 1014, 1014-1015 [2014], lv
denied ___ NY3d ___ [Jan. 20, 2015]; Matter of Murphy
[Commissioner of Labor], 85 AD3d 1478, 1479 [2013]). "A
reasonable assurance . . . has been interpreted as a
representation by the employer that substantially the same
economic terms and conditions will continue to apply to the
extent that the claimant will receive at least 90% of the
earnings received during the first academic period" (Matter of
Murphy [Copake-Taconic Cent. School Dist.–Commissioner of Labor],
17 AD3d 762, 763 [2005] [citations omitted]). Whether a claimant
received a reasonable assurance of employment is a question of
fact for the Board to resolve and its findings in this regard
will be upheld if supported by substantial evidence (see Matter
of Cardin [Erie Community Coll.–Commissioner of Labor], 119 AD3d
at 1015; Matter of Ganster [Commissioner of Labor], 111 AD3d
1014, 1014 [2013]).
                              -3-                  518312

      Here, claimant worked 150 hours during the 2010-2011
academic year, but was only offered 45 hours during the 2011-2012
academic year, limited to the 2011 fall semester. The employer
did not specify any hours for the 2012 spring semester either in
its reappointment letter or notice advising claimant of his
assignment, and claimant was offered significantly fewer hours
during the 2011 fall semester than he had worked during the 2010
fall semester. Given that the economic terms of the offer of
reappointment during the 2011-2012 academic year were
substantially less favorable than claimant's earnings during the
2010-2011 academic year, substantial evidence supports the
Board's finding that the employer did not provide claimant with a
reasonable assurance of continued employment under Labor Law
§ 590 (10) (see Matter of Scott [South Colonie Cent. School
Dist.–Commissioner of Labor], 28 AD3d 1027, 1028 [2006]; Matter
of Murphy [Copake-Taconic Cent. School Dist.–Commissioner of
Labor], 17 AD3d at 763]).

     McCarthy, J.P., Rose, Lynch and Clark, JJ., concur.



     ORDERED that the decision is affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
