In re the Claim of Choute ( 1976 )

Memorandum. In this unemployment insurance case, while the Appellate Division was correct in reversing the Appeal Board’s decision, based as it was erroneously on the limited doctrine of provoked discharge, the matter should be remitted to the board for reconsideration of the facts so that it may determine whether the claimant’s conduct, under the circumstances here, rose to the level of misconduct under subdivision 3 of section 593 of the Labor Law (Matter of James [Levine], 34 NY2d 491).

It follows that the order of the Appellate Division should be modified and the matter remitted to that court with directions that it remand to the Unemployment Insurance Appeal Board for reconsideration in accordance herewith, and, as so modified, affirmed.

Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Cooke concur.

Order modified, without costs, and matter remitted to the Appellate Division, Third Department, for further proceedings in accordance with the memorandum herein and, as so modified, affirmed.