In re the Claim of Angelo

78 A.D.2d 572, 432 N.Y.S.2d 262, 1980 N.Y. App. Div. LEXIS 12940

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 25, 1980
• Status: Published

Opinion

Appeal from a decision of the Unemployment Insurance Appeal Board, filed January 11, 1980. Following a hearing held on October 25, 1979, an Administrative Law Judge ruled that claimant lost her employment due to misconduct in connection therewith and was thus disqualified from receiving benefits. On this appeal from the decision of the Unemployment Insurance Appeal Board affirming the Administrative Law Judge’s determination, claimant argues that her actions did not constitute misconduct and that the procedure employed at the hearing did not comport with due process. Claimant’s employer was not present at the October 25, 1979 hearing when claimant testified. At the conclusion of claimant’s testimony, the Administrative Law Judge dismissed claimant and closed the hearing. After claimant had left the premises, the employer’s representative appeared and was allowed to testify after the Administrative Law Judge reopened the hearing. This was improper since it prohibited claimant from exercising her right of cross-examination (State Administrative Procedure Act, § 306, subd 3; 12 NYCRR 461.4 [c]; see Matter of Simpson v Wolansky, 38 NY2d 391, 395). Since we cannot say that, absent the testimony of the employer’s representative, there was substantial evidence to support the board’s finding of misconduct, the decision denying claimant benefits must be annulled and the matter remitted for a new hearing. Decision reversed, with costs, and matter remitted to the Unemployment Insurance Appeal Board for further proceedings not inconsistent herewith. Mahoney, P. J., Main, Mikoll, Casey and Herlihy, JJ., concur.