In re the Claim of Cotto , 51 A.D.2d 1069 ( 1976 )

Appeal from a decision of the Unemployment Insurance Appeal Board, filed August 16, 1974, which reversed the decision of a referee and sustained the initial determination of the Industrial Commissioner disqualifying claimant from receiving benefits effective April 18, 1974 on the ground that he voluntarily left his employment without good cause. The claimant and a coemployee were found leaving their employment with merchandise belonging to the employer and were given the alternative of resigning or being arrested. The claimant chose to resign. On the appeal he claims that he was forced to retire and that the board finding that he voluntarily left his employment without good cause is not supported by substantial evidence. There were several bases on which the board could have predicated its finding and decision. It might be argued that voluntarily leaving his employment without good cause is tenuous under the present circumstances. Nevertheless, the decision should be affirmed. The employer had good cause to discharge the claimant, but instead chose to give claimant the opportunity to resign. Rather than be arrested, he elected to resign. As to the contention that the board received various documents subsequent to the hearing, these were in no way prejudicial to the claimant. Decision affirmed, without costs. Koreman, P. J., Sweeney, Mahoney, Larkin and Herlihy, JJ., concur.