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In re the Claim of Lavecchia

265 A.D.2d 724 Court N.Y. App. Div. Decision date 1999-10-21 English

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p. 724
In the Matter of the Claim of Jean Lavecchia, Respondent. Dana Funding, Appellant; Commissioner of Labor, Respondent.
[695 NYS2d 780]

—Appeal from a decision of the Unemployment Insurance Appeal Board, filed July 2, 1998, which ruled that claimant was entitled to receive unemployment insurance benefits.

Substantial evidence supports the Unemployment Insurance Appeal Board’s decision that claimant was entitled to receive unemployment insurance benefits. “Determination of whether a claimant left his or her employment for good cause raises a factual issue to be determined by the Board and such determination will not be disturbed so long as it is based upon substantial evidence” (Matter of Schwab [Marie — Sweeney], 233 AD2d 732 ). Here, the record indicates that claimant had been hired as an administrative assistant at a mortgage brokerage firm whose duties were to answer telephone requests

p. 725
for information and schedule appointments for the employer. The employer also employed a number of telemarketers, who made direct calls to prospective customers to solicit business. Following the commencement of claimant’s employment, she testified that the employer notified her that she would now be required to also make telemarketing telephone calls to solicit business for the employer. Claimant protested and ultimately resigned as a result of the change in her duties. Significantly, the Board specifically credited claimant’s testimony over that of the employer’s witnesses and was within its province in concluding that the employer’s directive constituted a substantial change in the terms and conditions of claimant’s employment (see, e.g., Matter of Robert [Sweeney], 239 AD2d 809 ; Matter of Wacksman [County of Nassau — Roberts], 129 AD2d 848 ).

The additional arguments raised by the employer have been examined and found to be unpersuasive.

Mikoll, J. P., Crew III, Peters, Spain and Mugglin, JJ., concur. Ordered that the decision is affirmed, without costs.

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