Matter of Elizabeth A. Kubiak v Commissioner of Labor

Matter of Kubiak (Commissioner of Labor) 2005 NY Slip Op 08934 [23 AD3d 980] November 23, 2005 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 18, 2006

In the Matter of the Claim of Elizabeth A. Kubiak, Appellant. Commissioner of Labor, Respondent.

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Appeal from a decision of the Unemployment Insurance Appeal Board, filed August 27, 2004, which, upon reconsideration, adhered to its prior decision ruling that claimant was disqualified from receiving unemployment insurance benefits because she voluntarily left her employment without good cause.

In October 2003, claimant began experiencing headaches and sensitivity to a coworker's fragrance. She reported this to her laboratory supervisor, who spoke with the coworker, and the coworker ceased wearing the perfume. Claimant continued to experience problems and, on January 12, 2004, resigned. Claimant was disqualified from receiving unemployment insurance benefits on the basis that she voluntarily left her employment without good cause. This decision was upheld by the Unemployment Insurance Appeal Board initially and again upon reconsideration. Claimant now appeals.

We affirm. Inasmuch as claimant's resignation was not based upon the advice of a physician (see Matter of Karastathis [Commissioner of Labor], 298 AD2d 822, 823 [2002]) and was done before affording the employer the opportunity to remedy the situation (see Matter of Estrada [Commissioner of Labor], 261 AD2d 760 [1999]), the Board could find that she left her employment for personal and noncompelling reasons. Claimant admitted that her doctor did not advise her to quit her job, and there was testimony that the employer suggested other options to address the problem, such as relocating claimant to another work station. Claimant, however, resigned before trying these options; in fact, she prepared her letter of resignation before even returning to work following her medical leave of absence. Under the circumstances presented, [*2]substantial evidence supports the Board's decision.

Cardona, P.J., Mercure, Crew III, Carpinello and Mugglin, JJ., concur. Ordered that the decision is affirmed, without costs.