Matter of Peek (Commissioner of Labor)

Matter of Peek (Commissioner of Labor) 2015 NY Slip Op 08029 Decided on November 5, 2015 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: November 5, 2015
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[*1] In the Matter of the Claim of ASHLEY PEEK, Appellant.

and

COMMISSIONER OF LABOR, Respondent.

Calendar Date: September 22, 2015
Before: Peters, P.J., Lahtinen, Garry and Lynch, JJ.

Ashley Peek, New York City, appellant pro se.

Eric T. Schneiderman, Attorney General, New York City (Bessie Bazile of counsel), for respondent.

MEMORANDUM AND ORDER

Appeal from a decision of the Unemployment Insurance Appeal Board, filed July 17, 2014, which ruled that claimant was ineligible to receive unemployment insurance benefits because she was not available for employment.

For approximately seven years, claimant worked as a dietary aide for a food service company at a hospital. Her two-year-old son had an asthma attack one day while she was at work and she felt that neither her husband nor her mother-in-law, who were caring for him at the time, responded appropriately. Consequently, she immediately resigned from her position to care for her son. Claimant applied for unemployment insurance benefits, but the Department of Labor found, among other things, that she was ineligible to receive them because she was not available for work. This determination was sustained by an Administrative Law Judge following a hearing. The Unemployment Insurance Appeal Board thereafter affirmed the Administrative Law

Judge's decision and claimant now appeals.

We affirm. Pursuant to Labor Law § 591 (2), a claimant will not be deemed eligible to receive unemployment insurance benefits if he or she is "not ready, willing and able to work in his [or her] usual employment or in any other for which he [or she] is reasonably fitted by training and experience." A claimant who is unable to work due to the lack of child-care arrangements may be considered to be unavailable for work for purposes of receiving unemployment insurance benefits (see Matter of Johnson [Commissioner of Labor], 25 AD3d 1053, 1054 [2006]; Matter of Pastore [Commissioner of Labor], 2 AD3d 1172, 1172 [2003]). Here, it is undisputed that claimant left her job to care for her son and she testified that, after she did so, her mother-in-law moved away and her husband took a job with long hours that precluded [*2]her from relying upon them for childcare. She further stated that she could not afford to put her son in day care and that he could not be placed in a Head Start program until he was three years old. In view of the foregoing, substantial evidence supports the Board's finding that claimant was ineligible to receive benefits because she was unavailable for work.

Peters, P.J., Lahtinen, Garry and Lynch, JJ., concur.

ORDERED that the decision is affirmed, without costs.