In re the Claim of Andrews

Appellate Division of the Supreme Court of New York

In re the Claim of Andrews

118 A.D.3d 1216, 987 N.Y.S.2d 524

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

DecidedJune 19, 2014

StatusPublished

This text of 118 A.D.3d 1216 (In re the Claim of Andrews) 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 Andrews, 118 A.D.3d 1216, 987 N.Y.S.2d 524 (N.Y. Ct. App. 2014).

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Opinion

Appeal from a decision of the Unemployment Insurance Appeal Board, filed February 4, 2013, which ruled that claimant was entitled to receive unemployment insurance benefits.

We affirm. It is well settled that whether a claimant has [1217]*1217engaged in disqualifying misconduct is a factual question for the Unemployment Insurance Appeal Board to resolve and its decision will be upheld if supported by substantial evidence (see Matter of Jaiyesimi [ISS Action Inc.—Commissioner of Labor], 114 AD3d 983, 983 [2014]). Here, the Board concluded that claimant was discharged for reporting to work one hour after his scheduled start time on February 15, 2012. With respect to that assignment, claimant testified that he and his supervisor discussed changing the start time from 7:30 a.m. until 8:30 a.m. a week earlier. While the employer claimed that there was no discussion or agreement to change that specific start time, the Board chose to credit claimant’s testimony. It is the Board’s exclusive province to decide issues of credibility, and we find its decision that there was no credible evidence of misconduct and that claimant is entitled to receive benefits is supported by substantial evidence (see Matter of Morris [Lenox Hill Neighborhood House Inc.—Commissioner of Labor], 110 AD3d 1333, 1334 [2013]).

Peters, EJ., Lahtinen, Stein, Rose and Devine, JJ., concur.

Ordered that the decision is affirmed, with costs.

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Appeal from a decision of the Unemployment Insurance Appeal Board, filed February 4, 2013, which ruled that claimant was entitled to receive unemployment insurance benefits.

We affirm. It is well settled that whether a claimant has [1217]*1217engaged in disqualifying misconduct is a factual question for the Unemployment Insurance Appeal Board to resolve and its decision will be upheld if supported by substantial evidence (see Matter of Jaiyesimi [ISS Action Inc.—Commissioner of Labor], 114 AD3d 983, 983 [2014]). Here, the Board concluded that claimant was discharged for reporting to work one hour after his scheduled start time on February 15, 2012. With respect to that assignment, claimant testified that he and his supervisor discussed changing the start time from 7:30 a.m. until 8:30 a.m. a week earlier. While the employer claimed that there was no discussion or agreement to change that specific start time, the Board chose to credit claimant’s testimony. It is the Board’s exclusive province to decide issues of credibility, and we find its decision that there was no credible evidence of misconduct and that claimant is entitled to receive benefits is supported by substantial evidence (see Matter of Morris [Lenox Hill Neighborhood House Inc.—Commissioner of Labor], 110 AD3d 1333, 1334 [2013]).

Peters, EJ., Lahtinen, Stein, Rose and Devine, JJ., concur.

Ordered that the decision is affirmed, with costs.

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Bluebook (online)

118 A.D.3d 1216, 987 N.Y.S.2d 524, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-claim-of-andrews-nyappdiv-2014.