In Re the Claim of Berger

Order reversed, with costs, and the decision of the Unemployment Insurance Appeal Board reinstated. The board’s determination that the employer-employee relationship continued until the claimant exhausted all of his leave credits was rational and should not be disturbed (Matter of Fisher [Levine], 36 NY2d 146, 150, 153).

Concur: Chief Judge Breitel and Judges Jasen, Jones, Wachtler and Fuchsberg. Judges Gabrielli and Cooke dissent and vote to affirm on the memorandum at the Appellate Division (53 AD2d 730).