                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: October 29, 2015                   520695
________________________________

In the Matter of the Claim of
   PAUL J. UPHAM,
                    Respondent.

DUTCHESS COMMUNITY COLLEGE,                 MEMORANDUM AND ORDER
                    Appellant.

COMMISSIONER OF LABOR,
                    Respondent.
________________________________


Calendar Date:   September 22, 2015

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

                             __________


      Roemer, Wallens, Gold & Mineaux, LLP, Albany (Earl T.
Redding of counsel), for appellant.

      Cynthia Feathers, Glens Falls, for Paul J. Upham,
respondent.

                             __________


      Appeal from a decision of the Unemployment Insurance Appeal
Board, filed June 11, 2014, which ruled that claimant was
entitled to receive unemployment insurance benefits.

      Claimant worked as an adjunct instructor at a community
college and, during the fall 2013 semester, he taught three
courses in history and government. Prior to the end of that
semester, the chair of his department asked him if he wanted to
teach potentially four courses during the spring 2014 semester
and he expressed an interest in doing so. After the semester
ended, the college sent claimant a letter "anticipat[ing] that
[he would] be invited to return to teach," during the spring 2014
semester "subject to enrollment and/or budget constraints."
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Prior to his receipt of this letter, claimant applied for
unemployment insurance benefits and his claim was denied.
Following a hearing, an Administrative Law Judge concluded that
claimant was, in fact, eligible to receive benefits because the
college had not given him a reasonable assurance of continued
employment under Labor Law § 590 (10). The Unemployment
Insurance Appeal Board upheld this decision and the college now
appeals.

      We affirm. Labor Law § 590 (10) precludes a professional
employed by an educational institution from receiving
unemployment insurance benefits during the period between two
successive academic terms if the educational institution has
provided the professional with a reasonable assurance of
continued employment (see Matter of Rosenbaum [Borough of
Manhattan Community Coll., City Univ. of N.Y.–Commissioner of
Labor], 125 AD3d 1019, 1020 [2015]; Matter of Cardin [Erie
Community Coll.–Commissioner of Labor], 119 AD3d 1014, 1014-1015
[2014], lv denied 24 NY3d 914 [2015]). A "reasonable assurance,"
in turn, is a representation by the educational institution "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]; see Matter
of Schwartz [New York City Dept. of Educ.–Commissioner of Labor],
68 AD3d 1323, 1324 [2009]). This is a factual question for the
Board to resolve and its determination in this regard will be
upheld if supported by substantial evidence (see Matter of
Ganster [Commissioner of Labor], 111 AD3d 1014, 1014 [2013];
Matter of Sultana [New York City Dept. of Educ.–Commissioner of
Labor], 79 AD3d 1552, 1553 [2010]).

      Here, although the department chair mentioned that claimant
could teach potentially four courses during the spring 2014
semester, which exceeded the number that he taught during the
fall 2013 semester, this was never confirmed during any
subsequent conversations nor in the letter sent to claimant.
Significantly, the letter did not specify the details of the
spring 2014 semester teaching assignment and conditioned
claimant's further employment upon "enrollment and/or budget
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constraints." In cases where educational institutions have
failed to set forth the terms or conditions of continued
employment or have made such employment contingent upon certain
conditions, courts have found that a reasonable assurance was
lacking (see e.g. Matter of Rosenbaum [Borough of Manhattan
Community Coll., City Univ. of N.Y.–Commissioner of Labor], 125
AD3d at 1019-1020; Matter of Cardin [Erie County Community
Coll.–Commissioner of Labor], 119 AD3d at 1015; Matter of Scott
[South Colonie Cent. School Dist.–Commissioner of Labor], 28 AD3d
1027, 1028 [2006]). Given that the same situation is presented
here, substantial evidence supports the Board's finding that
claimant was entitled to receive benefits.

     Peters, P.J., McCarthy, Egan Jr. and Devine, JJ., concur.



     ORDERED that the decision is affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
