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

It is interesting as to the different theories that upheld the claimant's eligibility for benefits. Recall that in my application to reopen the default, my position was as follows:

"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, she was instructed to sign a letter that if she did not make quota that week, it will result in termination. She did not make her 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)"