MATTER 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 N.Y.2d 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 A.D.2d 730).