In re the Claim of Killian

Mercure, J. (dissenting).

We respectfully dissent. We will at the outset note our agreement with the majority’s implicit conclusion that the Unemployment Insurance Appeal Board’s determination to award benefits in this case may have the effect of depriving future college students of the opportunity to participate in worthwhile industry cooperative programs. As such, we agree that the Board’s decision reflects poor policy. However, unlike the majority, we accept the limited scope of our judicial review function and the general authority of an administrative agency to fix short-sighted policy when it is so inclined.

When, as in this case, the Board’s ultimate conclusion is reached through the application of established facts against a statutory framework, involving "quasi-legislative considerations of policy relating to the intended scope of the statute, the question is one * * * [on which the Board] may bring to bear its own special competence in carrying out the supervisory authority conferred on it by the Legislature” (Matter of Fisher [Levine], 36 NY2d 146, 150). Presenting a mixed question of fact and law, such a determination must be sustained if it has a rational basis (see, supra; Matter of Franconeri [New York City Dept. of Personnel—Hudacs], 190 AD2d 970, 971; Matter of Le Porte [New York City Dept. of Personnel—Hartnett], 142 AD2d 866, 867, lv denied 73 NY2d 705).

The relevant facts, as found by the Board and supported by substantial evidence in the record, establish that claimant, enrolled as a student in a four-year course of study at a university, worked for the employer for eight months during the spring and summer semesters of 1992 as part of an optional industry co-op program. Notably, claimant received no academic credit for his participation in the program, and he and the other students in the program required the same number of credits to graduate as other students who did not participate in the program. Although the university instituted the program and was responsible for bringing claimant in contact with the employer, claimant was supervised by the employer’s engineering staff and the employer was solely responsible for *833paying claimant’s salary. The employer and the university agreed that claimant’s work would last only eight months; at the conclusion claimant returned to school to resume his studies. The employer offered claimant no further work.

Based upon the foregoing findings, we perceive no basis for disturbing the Board’s conclusion that claimant’s employment did not fall within the exclusionary provision of Labor Law § 511 (17) relative to work performed by a full-time student in a program that combines academic instruction with work experience, where the service is an "integral part” of the program. To the contrary, the record provides ample support for the Board’s conclusion that claimant participated in the program primarily to enhance his future employment opportunities and not for the purpose of facilitating his education, as well as its quasi-legislative determination that the program was not an "integral part” of claimant’s college curriculum, as that term is employed in Labor Law § 511 (17). Unlike the majority, we discern no irrationality in the Board’s apparent conclusion that, in order to constitute an integral part of a student’s program, the work-experience component must either be mandatory or credit bearing.

Nor are we persuaded that the record lacks substantial evidence to support the finding that claimant did not voluntarily leave his employment. Whether a claimant has voluntarily left his or her employment is normally an issue of fact for the Board to resolve (Matter of Horton [Hartnett], 176 AD2d 1103, 1104). An agreed-upon termination date does not necessarily mandate a finding that the claimant voluntarily left (see, e.g., Matter of Kalichman [Ross], 81 AD2d 961; Matter of Ziembiec [Ross], 62 AD2d 1105; cf., Matter of Nester [Ross], 79 AD2d 808; see also, Matter of Wade [General Motors Corp.—Hudacs], 204 AD2d 774, 775), and it is undisputed that the employer offered claimant no additional work on the termination date. Finally, the employer’s assertion that claimant should be ruled ineligible for benefits because he was allegedly unavailable for work when he resumed attending college has not been preserved for review.

In view of the foregoing, we would affirm the Board’s decision.

Yesawich Jr., J., concurs. Ordered that the decision is reversed, without costs, and claim dismissed.