In re the Claim of Alvarado

Appellate Division of the Supreme Court of New York

In re the Claim of Alvarado

273 A.D.2d 563, 708 N.Y.S.2d 748, 2000 N.Y. App. Div. LEXIS 6660

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJune 15, 2000

StatusPublished

Cited by5 cases

This text of 273 A.D.2d 563 (In re the Claim of Alvarado) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In re the Claim of Alvarado, 273 A.D.2d 563, 708 N.Y.S.2d 748, 2000 N.Y. App. Div. LEXIS 6660 (N.Y. Ct. App. 2000).

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Opinion

Appeal from a decision of the Unemployment Insurance Appeal Board, filed November 13, 1998, which, upon reconsideration, adhered to its prior decision ruling that claimant was disqualified from receiving unemployment insurance benefits because he voluntarily left his employment without good cause.

Claimant, a busboy, unsuccessfully applied for a clerical position with the employer. Contending that he had been denied the position because he spoke English with an accent, claimant [564]*564retained the services of an attorney to pursue a discrimination claim against the employer, On May 3, 1997, claimant began a medical leave of absence relating to stress and depression. This leave of absence was scheduled to end on July 29, 1997. Prior to claimant’s scheduled return, the employer sent a letter to claimant instructing him to contact the employer or he would be removed from the payroll. Claimant neither returned to work nor contacted his employer.

Inasmuch as an employee’s failure to return to work or contact the employer after the expiration of an authorized leave of absence has been held to constitute disqualifying misconduct (see, Matter of Nikkhah [Commissioner of Labor], 264 AD2d 896, 897), we conclude that substantial evidence supports the decision of the Unemployment Insurance Appeal Board denying claimant’s application for unemployment insurance benefits. Although claimant contended that his doctor instructed him not to return to work and his attorney advised him not to speak with the employer, claimant failed to submit evidence to support either of these contentions. To the extent that claimant presented a contrary version of the events leading to his discharge, this simply presented a credibility issue for the Board to resolve (see, Matter of Jacque [Commissioner of Labor], 270 AD2d 541).

Mercure, J. P., Crew III, Graffeo, Mugglin and Lahtinen, 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 November 13, 1998, which, upon reconsideration, adhered to its prior decision ruling that claimant was disqualified from receiving unemployment insurance benefits because he voluntarily left his employment without good cause.

Claimant, a busboy, unsuccessfully applied for a clerical position with the employer. Contending that he had been denied the position because he spoke English with an accent, claimant [564]*564retained the services of an attorney to pursue a discrimination claim against the employer, On May 3, 1997, claimant began a medical leave of absence relating to stress and depression. This leave of absence was scheduled to end on July 29, 1997. Prior to claimant’s scheduled return, the employer sent a letter to claimant instructing him to contact the employer or he would be removed from the payroll. Claimant neither returned to work nor contacted his employer.

Inasmuch as an employee’s failure to return to work or contact the employer after the expiration of an authorized leave of absence has been held to constitute disqualifying misconduct (see, Matter of Nikkhah [Commissioner of Labor], 264 AD2d 896, 897), we conclude that substantial evidence supports the decision of the Unemployment Insurance Appeal Board denying claimant’s application for unemployment insurance benefits. Although claimant contended that his doctor instructed him not to return to work and his attorney advised him not to speak with the employer, claimant failed to submit evidence to support either of these contentions. To the extent that claimant presented a contrary version of the events leading to his discharge, this simply presented a credibility issue for the Board to resolve (see, Matter of Jacque [Commissioner of Labor], 270 AD2d 541).

Mercure, J. P., Crew III, Graffeo, Mugglin and Lahtinen, JJ., concur. Ordered that the decision is affirmed, without costs.

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Bluebook (online)

273 A.D.2d 563, 708 N.Y.S.2d 748, 2000 N.Y. App. Div. LEXIS 6660, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-claim-of-alvarado-nyappdiv-2000.

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