Opinion
November 22, 1967
Appeal by the claimant from a decision of the Unemployment Insurance Appeal Board dated October 6, 1966 which denied benefits to the claimant on the ground that he did not have covered New York employment in his base year. The Referee, whose findings and opinion were adopted by the board, found that the claimant was hired by a New York employer and that all of his services were performed in the State of Florida with the exception of a few days in New York State. The record contains evidence that the employment of the claimant from April 1, 1964 to July 31, 1964 was solely for services in the nature of surveys in the State of Florida and that from August 1, 1964 through January 30, 1965 he was employed as a branch manager of the employer's business in Florida, the contract also providing that he might be required to establish offices outside of Florida and to travel outside of Florida. From August 1, 1964 through January 30, 1965, when his employment was terminated, he performed all of his services within the State of Florida. The Referee found on these facts that the services of the claimant were localized within the State of Florida and therefore, the employment was not covered under section 511 Lab. of the Labor Law. The record supports such a finding and as noted by the Referee, this court held in Matter of Boyle ( Catherwood) ( 15 A.D.2d 699, 700) that "Only if the performance out of the State is `incidental' to the New York work can it be deemed a New York employment." Matter of Mallia ( Corsi) ( 299 N.Y. 232) relied on by the claimant herein is not controlling since in that case the facts established that the claimant's services were equally performed in New York State and the State of New Jersey and, therefore, the services were not "localized" in either State. Decision affirmed, without costs. Gibson, P.J., Herlihy, Reynolds, Aulisi and Staley, Jr., JJ., concur in memorandum by Herlihy, J.