                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: December 1, 2016                   522427
________________________________

In the Matter of the Claim of
   CARL O. GILL,
                    Respondent.

PHOENIX ENERGY MANAGEMENT                   MEMORANDUM AND ORDER
   INC.,
                    Appellant.

COMMISSIONER OF LABOR,
                    Respondent.
________________________________


Calendar Date:   October 25, 2016

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

                             __________


      Bee Ready Fishbein Hatter & Donovan, LLP, Mineola (Deanna
D. Panico of counsel), for appellant.

     Salvatore C. Adamo, Albany, for Carl O. Gill, respondent.

                             __________


      Appeal from a decision of the Unemployment Insurance Appeal
Board, filed April 1, 2015, which ruled that claimant was
eligible to receive unemployment insurance benefits.

      Claimant initially worked for the employer as a welder.
Following an injury resulting in his extended absence from work,
the employer terminated claimant's employment in April 2013 for
staffing reasons. Shortly thereafter, in June 2013, claimant was
rehired by the employer as a boiler mechanic. He subsequently
filed several grievances contesting, among other things, the
denial of a pay increase and vacation leave. In addition,
between February 2014 and April 2014, claimant made several
requests for leaves of absence for differing reasons. The
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employer initially denied these requests, but ultimately granted
claimant an indefinite leave of absence on April 28, 2014.
Following an arbitration hearing, claimant signed a settlement
agreement under which he received a payment of $10,000 from the
employer and agreed to resign from his position effective May 1,
2014.

      Thereafter, claimant filed an application for unemployment
insurance benefits. His application was initially denied on the
ground that he was disqualified from receiving benefits because
he voluntarily left his employment without good cause. Claimant
requested a hearing and, at its conclusion, an Administrative Law
Judge sustained the initial determination. The Unemployment
Insurance Appeal Board, however, reversed this decision and ruled
that claimant was entitled to receive benefits. The employer now
appeals.

      Under the circumstances presented, claimant's resignation
and acceptance of the $10,000 payment in settlement of
outstanding grievances and other claims constitutes a voluntary
separation from employment disqualifying him from receiving
unemployment insurance benefits (see Matter of Livingston
[Hudacs], 210 AD2d 721, 722 [1994]; Matter of Mathison [County of
Dutchess–Hudacs], 203 AD2d 832, 832-833 [1994], lv denied 83 NY2d
760 [1994]). There is no indication that claimant was forced to
accept the settlement agreement or that he was subject to
disciplinary action if he did not. Consequently, the Board's
decision finding claimant eligible to receive benefits is not
supported by substantial evidence and must be reversed. Although
the employer maintains that claimant is subject to a forfeiture
of benefits based upon his willful misrepresentation, this issue
was not before the Board and is not properly before this Court.

      McCarthy, J.P., Egan Jr., Clark, Mulvey and Aarons, JJ.,
concur.
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      ORDERED that the decision is reversed, without costs, and
matter remitted to the Unemployment Insurance Appeal Board for
further proceedings not inconsistent with this Court's decision.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
