Michael v. Long Island College Hospital

• Decision Date: 19 January 1978
• Citation: 60 A.D.2d 438,401 N.Y.S.2d 591
• Parties: Claim of Claramma MICHAEL et al., Respondents, v. LONG ISLAND COLLEGE HOSPITAL, Appellant, Philip Ross, as Industrial Commissioner, Respondent. Claim of Evelyn MICHEL, Respondent, v. PRESBYTERIAN HOSPITAL IN the CITY OF NEW YORK, Appellant, Philip Ross, as Industrial Commissioner, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 591

401 N.Y.S.2d 591

60 A.D.2d 438

Claim of Claramma MICHAEL et al., Respondents, v. LONG ISLAND COLLEGE HOSPITAL, Appellant, Philip Ross, as Industrial Commissioner, Respondent.

Claim of Evelyn MICHEL, Respondent, v. PRESBYTERIAN HOSPITAL IN the CITY OF NEW YORK, Appellant, Philip Ross, as Industrial Commissioner, Respondent.

Supreme Court, Appellate Division, Third Department.

Jan. 19, 1978.

Kelley, Drye & Warren, New York City (Paul L. Bressan, New York City, of counsel), for Long Island College Hospital, appellant.

Simpson, Thacher & Bartlett, New York City (James S. Frank, New York City, of

counsel), for Presbyterian Hospital in the City of New York, appellant.

Zelman & Zelman, New York City (Irving P. Zelman, New York City, of counsel), for Claramma Michael and others, respondents.

James W. Cooper, Glens Falls, for Evelyn Michel, respondent.

Louis J. Lefkowitz, Atty. Gen., New York City (Samuel A. Hirshowitz and Murray Sylvester, New York City, of counsel), for Industrial Com'r, respondent.

Before GREENBLOTT, J. P., and SWEENEY, KANE, MAHONEY and MAIN, JJ.

MAHONEY, Justice.

These are appeals by the Long Island College Hospital and the Presbyterian Hospital of the City of New York from decisions of the Unemployment Insurance Appeal Board, filed October 14, 1976, November 9, 1976 and October 7, 1976, respectively, which affirmed separate decisions of a Referee holding claimants Michael, Mathai and George, who were employees of Long Island College Hospital, and claimant Evelyn Michel, who was an employee of the Presbyterian Hospital of the City of New York, eligible for unemployment benefits.

These cases were consolidated for appeal purposes since they involve similar questions of law and fact.

The question posited in each case is whether failure to adequately prepare for permanent licensure by permit nurses, and their resultant failure, on three occasions, to pass the requisite examination, is conduct that provoked discharge and consequent ineligibility for unemployment benefits. Four Referees held that the claimants were not guilty of misconduct and that employment ended under non-disqualifying conditions (Labor Law, § 593). Each hearing officer concluded that claimants' failure to pass the licensing examination was not due to any wilful act or omission, but, rather, that each could not meet the professional standards for licensing in the nursing profession.

We turn first to the question framed above, i. e., whether all four claimants' failure to enroll in review courses and to accept tutoring prior to taking the requisite written examination (Education Law, § 6905) for the first time, and, after examination failure, to review the subject materials only in a limited manner, was the type of conduct which transgressed a legitimate obligation and left their employers no choice but to discharge them. In other words, did their conduct provoke their discharge.

In Matter of De Grego (Levine), 39 N.Y.2d 180, 383 N.Y.S.2d 250, 347 N.E.2d 611, the Court of Appeals refined the doctrine of provoked discharge to those instances "where an employee voluntarily engaged in conduct which transgresses a legitimate known obligation and leaves the employer no choice but to discharge him." (Id. at 183, 383 N.Y.S.2d at 251, 347 N.E.2d at 613; emphasis added.) The court, referring to its prior decision in Matter of James (Levine), 34 N.Y.2d 491, 358 N.Y.S.2d 411, 315 N.E.2d 471,...