                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: March 17, 2016                     520366
________________________________

In the Matter of the Claim of
   ZHANNA ROSSEYCHUK,
                    Respondent.

CITY OF NEW YORK,                            MEMORANDUM AND ORDER
                     Appellant.

COMMISSIONER OF LABOR,
                    Respondent.
________________________________


Calendar Date:   February 16, 2016

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

                              __________


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

      Thomas F. Garner, Middleburgh, for Zhanna Rosseychuk,
respondent.

                              __________


Egan Jr., J.

      Appeal from a decision of the Unemployment Insurance Appeal
Board, filed April 8, 2014, which ruled that claimant was
entitled to receive unemployment insurance benefits.

      Claimant was employed as a bookkeeper in the Office of
Child Support Enforcement for the City of New York. Pursuant to
the Administrative Code of the City of New York, claimant was
required to become a resident of the City within 90 days of being
hired and to maintain such residency. Thereafter, claimant was
discharged after the employer determined that she did not comply
with the residency requirements. Claimant's application for
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unemployment insurance benefits was denied by a decision of an
Administrative Law Judge on the ground that she voluntarily left
her employment without good cause inasmuch as she provoked her
discharge by not complying with the employer's residency policy.
The Unemployment Insurance Appeal Board, without resolving the
issue of whether claimant was in full compliance with the
employer's residency policy, reversed that decision on the ground
that the voluntary transgression prong of the doctrine of
provoked discharge had not been established so as to find that
claimant voluntarily left her employment without good cause.
This appeal ensued.

      "Provoked discharge . . . is a narrowly drawn legal fiction
designed to apply where an employee voluntarily engages in
conduct which transgresses a legitimate known obligation and
leaves the employer no choice but to discharge him [or her]"
(Matter of De Grego [Levine], 39 NY2d 180, 183 [1976] [internal
citation omitted]). "Whether [a] claimant's actions constituted
a voluntary leaving of employment without good cause by provoking
his [or her] discharge is a factual determination for the
[B]oard" (Matter of Fishbein [Catherwood], 28 AD2d 1059, 1059
[1967] [citations omitted]). Here, claimant's testimony
established that she began living with her cousin in an apartment
in New York City in an attempt to comply with the employer's
residency requirements, as well as to accommodate her school
schedule. Although claimant also spent time with her husband in
an apartment outside New York City, the employer acknowledged
that an individual could maintain more than one residence, even
if one was outside New York City, and still be in compliance with
the residency requirement. Claimant pays her cousin money to
live in the apartment and to help offset expenses, and she
receives mail at that address, including bank account and credit
card statements. Claimant also pays New York City income taxes.
Moreover, claimant testified that, because she did not fully
understand the residency requirement, she inquired to both her
supervisor and the employer's personnel department as to whether
she was considered to be in compliance with the necessary
requirement; however, those inquiries went unanswered. Under
these circumstances, substantial evidence supports the Board's
finding that claimant did not voluntarily engage in conduct that
transgressed the employer's mandate so as to find that she
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provoked her discharge (compare Matter of Ball [City of
Syracuse–Commissioner of Labor], 70 AD3d 1151, 1152-1153 [2010];
Matter of Keenan [Levine], 51 AD2d 596, 596 [1976]).

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



     ORDERED that the decision is affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
