In re Claim of DeCarlo

Appellate Division of the Supreme Court of New York

In re Claim of DeCarlo

6 A.D.3d 1003, 776 N.Y.S.2d 133, 2004 N.Y. App. Div. LEXIS 5024

Appellate Division of the Supreme Court of the State of New York·Decided April 29, 2004·Published·Cited by 7 cases

Opinion

Appeal from a decision of the Unemployment Insurance Appeal Board, filed September 30, 2002, which ruled that claimant was disqualified from receiving unemployment insurance benefits because he voluntarily left his employment without good cause.

Substantial evidence supports the Unemployment Insurance Appeal Board’s ruling that claimant voluntarily left his employment as an oil service technician without good cause. According to the employer, claimant quit after being reprimanded regarding claimant’s failure to respond to a service call. It is well settled that criticism from a supervisor, even where it is perceived as unjust or unduly critical, does not necessarily constitute good cause for leaving employment (see Matter of Carlson [Commissioner of Labor], 307 AD2d 582 [2003]; Matter of Simon [Commissioner of Labor], 276 AD2d 961, 962 [2000], lv dismissed and denied 96 NY2d 728 [2001]). Inasmuch as the employer testified that continuing work was available, we find no reason to disturb the Board’s decision. Although claimant maintains that he was fired, the differing version of how claimant separated from his employment created a credibility issue for the Board to resolve (see Matter of Bejarano [Commissioner of Labor], 301 AD2d 726 [2003]; Matter of Simon [Commissioner of Labor], supra at 962). To the extent that claimant challenges the Administrative Law Judge’s decision to accept affidavits from proposed witnesses rather than testimony, claimant, who was represented by an attorney, failed to object to the Administrative Law Judge’s decision (see Matter of Liposki [Citifloral, Inc.—Commissioner of Labor], 284 AD2d 819, 820 [2001]; Matter of Halper [Commissioner of Labor], 251 AD2d 875 [1998]). In any event, the witnesses were not present during the exchange between claimant and the employer and the affidavits containing the substance of their proposed testimony were admitted into the record.

Cardona EJ., Crew III, Peters, Carpinello and Mugglin, JJ., concur. Ordered that the decision is affirmed, without costs.

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Appeal from a decision of the Unemployment Insurance Appeal Board, filed September 30, 2002, which ruled that claimant was disqualified from receiving unemployment insurance benefits because he voluntarily left his employment without good cause.

Substantial evidence supports the Unemployment Insurance Appeal Board’s ruling that claimant voluntarily left his employment as an oil service technician without good cause. According to the employer, claimant quit after being reprimanded regarding claimant’s failure to respond to a service call. It is well settled that criticism from a supervisor, even where it is perceived as unjust or unduly critical, does not necessarily constitute good cause for leaving employment (see Matter of Carlson [Commissioner of Labor], 307 AD2d 582 [2003]; Matter of Simon [Commissioner of Labor], 276 AD2d 961, 962 [2000], lv dismissed and denied 96 NY2d 728 [2001]). Inasmuch as the employer testified that continuing work was available, we find no reason to disturb the Board’s decision. Although claimant maintains that he was fired, the differing version of how claimant separated from his employment created a credibility issue for the Board to resolve (see Matter of Bejarano [Commissioner of Labor], 301 AD2d 726 [2003]; Matter of Simon [Commissioner of Labor], supra at 962). To the extent that claimant challenges the Administrative Law Judge’s decision to accept affidavits from proposed witnesses rather than testimony, claimant, who was represented by an attorney, failed to object to the Administrative Law Judge’s decision (see Matter of Liposki [Citifloral, Inc.—Commissioner of Labor], 284 AD2d 819, 820 [2001]; Matter of Halper [Commissioner of Labor], 251 AD2d 875 [1998]). In any event, the witnesses were not present during the exchange between claimant and the employer and the affidavits containing the substance of their proposed testimony were admitted into the record.

Cardona EJ., Crew III, Peters, Carpinello and Mugglin, JJ., concur. Ordered that the decision is affirmed, without costs.

In re Claim of DeCarlo, 6 A.D.3d 1003, 776 N.Y.S.2d 133, 2004 N.Y. App. Div. LEXIS 5024 (N.Y. Ct. App. 2004).

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