In Re the Claim of Berger

41 N.Y. 1065 | NY | 1977

41 N.Y.2d 1065 (1977)

In the Matter of the Claim of Isidore Berger, Respondent. Philip Ross, as Industrial Commissioner, Appellant.

Court of Appeals of the State of New York.

Argued March 25, 1977. Decided May 3, 1977.

Louis J. Lefkowitz, Attorney-General (Irving Jorrisch, Samuel A. Hirshowitz and Murray Sylvester of counsel), for appellant.

Isidore Berger, respondent pro se.

Concur: Chief Judge BREITEL and Judges JASEN, JONES, WACHTLER and FUCHSBERG. Judges GABRIELLI and COOKE dissent and vote to affirm on the memorandum at the Appellate Division (53 AD2d 730).

Order reversed, with costs, and the decision of the Unemployment Insurance Appeal Board reinstated. The board's determination that the employer-employee relationship continued until the claimant exhausted all of his leave credits was rational and should not be disturbed (Matter of Fisher [Levine], 36 N.Y.2d 146, 150, 153).