Matter of Debbie Pastore v Commissioner of Labor

Matter of Pastore (Commissioner of Labor) 2003 NY Slip Op 19842 [2 AD3d 1172] December 24, 2003 Appellate Division, Third Department As corrected through Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 25, 2004

In the Matter of the Claim of Debbie Pastore, Appellant. Commissioner of Labor, Respondent.

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Crew III, J. Appeal from a decision of the Unemployment Insurance Appeal Board, filed January 21, 2003, which ruled that claimant was ineligible to receive unemployment insurance benefits because she was not available for employment.

A claimant must be ready, willing and able to work in his or her usual employment in order to be eligible to receive unemployment insurance benefits (see Labor Law § 591 [2]), and this Court has held that a lack of child care arrangements for a particular time period can render a claimant unavailable for work (see Matter of McCarthy [Sweeney], 213 AD2d 912 [1995]). When this appeal was last before us, we withheld decision and remitted this matter to the Unemployment Insurance Appeal Board for clarification as to whether claimant was precluded from receiving any unemployment insurance benefits or, rather, was being denied benefits only for the two dates that she was without child care (308 AD2d 649 [2003]). Upon remittal, the Board advised that the determination of unavailability was effective for October 11, 2002 and October 18, 2002 only, the dates upon which claimant lacked child care, and that claimant was otherwise eligible and had in fact received the full amount of unemployment insurance benefits due her for the entire benefit period. As the Board's finding of unavailability for the two dates in question is supported by substantial evidence in the record as a whole, and given that claimant has otherwise received the benefits to which she was entitled, the Board's decision is affirmed.

Cardona, P.J., Spain, Carpinello and Lahtinen, JJ., concur. Ordered that the decision is affirmed, without costs.