In re the Claim of Anderson

255 A.D.2d 678, 679 N.Y.S.2d 735, 1998 N.Y. App. Div. LEXIS 11702

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 5, 1998
• Status: Published

Opinion

—Appeal from a decision of the Unemployment Insurance Appeal Board, filed December 4, 1997, which ruled that claimant was disqualified from receiving unemployment insurance benefits because her employment was terminated due to misconduct.

Claimant was discharged from her employment as a licensed practical nurse after she failed to administer a scheduled medication to a diabetes patient. The Unemployment Insurance Appeal Board ruled that claimant was disqualified from receiving benefits because she lost her employment under disqualifying circumstances. We affirm. The record reveals that eight days prior to the incident which led to her termination, claimant was briefly suspended for causing an insulin overdose to a diabetic patient by administering 28 rather than 12 units of insulin. At that time, the employer furnished claimant with training material which addressed the prevention of medication errors and issued a written warning indicating that her failure to demonstrate immediate improvement in medication administration could lead to her dismissal. Although claimant argues that her negligence did not rise to the level of misconduct, negligence which persists despite prior warnings may constitute disqualifying misconduct (see, Matter of Mitch [Sweeney], 247 AD2d 738; Matter of Briere [Sweeney], 238 AD2d 647). Accordingly, we conclude that the Board’s decision is supported by substantial evidence. We have examined claimant’s remaining arguments and find them to be unpersuasive.

Mercure, J. P., Yesawich Jr., Peters, Carpinello and Graffeo, JJ., concur. Ordered that the decision is affirmed, without costs.