NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - MISCONDUCT OR SEPARATION WITH GOOD CAUSE - CASE NO. 7

Here is the application to reopen (the default decision was the 2 page attachment):

"June 15, 2011

VIA FAX– 3 PAGES

UNEMPLOYMENT INSURANCE APPEAL BOARD
400 Oak Street
Garden City, NY 11530

Re: ALJ XXXXXXXXX: IN RE: XXXX

Gentleman:

I am representing the claimant. On behalf of the claimant, the claimant hereby applies to reopen the attached decision.

The claimant defaulted due to the fact XXXX desired an attorney. After contacting me, I began to investigate XXXX claim and discovered that the Claimant has a meritorious claim. It appears that the Claimant did not quit but was terminated due to inadequate performance as the result of inability, viz., after several verbal warnings, XXXX was instructed to sign a letter that if XXXX did not make quota that week, it will result in termination. XXXXX did not make XXXX sales quota that week. Even assuming all of the allegations of the employer: a worker who voluntarily leaves his or her employment in the face of disciplinary charges may qualify for benefits if his or her actions did not constitute misconduct (See Matter of Riley, __ AD3d __ [Decided May 22,2008], Matter of Straw, 32 AD3d 1098, Matter of Jiminez, 20 AD3d 843) and if an employer offers a choice of dates for terminating the employment: a claimant does not become subject to a disqualification for voluntary leaving by a selection of the earlier of two dates since exercising such option does not make the separation voluntary. (A.B. 141,874; A-750-1687; similarly, App. Div., Matter or Ziembiec, 62 A.D. 2d 1105)

Accordingly, I request a hearing at the Garden City office at a date and time mutually convenient.

Sincerely,


Jon M. Probstein

Cc: XXXX"