In re the Claim of Appleby

Appellate Division of the Supreme Court of New York

In re the Claim of Appleby

51 A.D.2d 617, 377 N.Y.S.2d 820, 1976 N.Y. App. Div. LEXIS 10948

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

DecidedJanuary 15, 1976

StatusPublished

This text of 51 A.D.2d 617 (In re the Claim of Appleby) 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 Appleby, 51 A.D.2d 617, 377 N.Y.S.2d 820, 1976 N.Y. App. Div. LEXIS 10948 (N.Y. Ct. App. 1976).

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Opinion

Appeal from a decision of the Unemployment Insurance Appeal Board, filed July 3, 1975, which affirmed the decision of a referee sustaining an initial determination of the Industrial Commissioner disqualifying claimant from receiving benefits on the ground that he lost his employment through misconduct. Pursuant to a written agreement, claimant was engaged by the Present Trading Corporation (an importer and distributor of stainless steel flatware) as a national sales manager and vice-president for a two-year period commencing February 18, 1974. Claimant was paid a salary of $25,000 per year and expenses. He was also to receive a percentage above a certain gross. After eight months • he was discharged. The employer states claimant refused to perform duties assigned and breached the employment contract by refusing to travel as assigned. Claimant states he was discharged because the employer could no longer afford his services. Issues of fact, including issues of credibility, are solely for determination by the board (Matter of Marchena [Catherwood], 31 AD2d 774) and such determinations, if supported by substantial evidence, are not to be disturbed. We conclude that there is substantial evidence to support the findings that claimant was not discharged by the employer because of its financial inability to pay his salary but rather that claimant did on occasion refuse to follow instructions of the employer and that such refusals were detrimental to the interests of the employer and constituted misconduct. Decision affirmed, without costs. Greenblott, J. P., Kane, Koreman, Larkin and Reynolds, JJ., concur.

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Appeal from a decision of the Unemployment Insurance Appeal Board, filed July 3, 1975, which affirmed the decision of a referee sustaining an initial determination of the Industrial Commissioner disqualifying claimant from receiving benefits on the ground that he lost his employment through misconduct. Pursuant to a written agreement, claimant was engaged by the Present Trading Corporation (an importer and distributor of stainless steel flatware) as a national sales manager and vice-president for a two-year period commencing February 18, 1974. Claimant was paid a salary of $25,000 per year and expenses. He was also to receive a percentage above a certain gross. After eight months • he was discharged. The employer states claimant refused to perform duties assigned and breached the employment contract by refusing to travel as assigned. Claimant states he was discharged because the employer could no longer afford his services. Issues of fact, including issues of credibility, are solely for determination by the board (Matter of Marchena [Catherwood], 31 AD2d 774) and such determinations, if supported by substantial evidence, are not to be disturbed. We conclude that there is substantial evidence to support the findings that claimant was not discharged by the employer because of its financial inability to pay his salary but rather that claimant did on occasion refuse to follow instructions of the employer and that such refusals were detrimental to the interests of the employer and constituted misconduct. Decision affirmed, without costs. Greenblott, J. P., Kane, Koreman, Larkin and Reynolds, JJ., concur.

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Bluebook (online)

51 A.D.2d 617, 377 N.Y.S.2d 820, 1976 N.Y. App. Div. LEXIS 10948, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-claim-of-appleby-nyappdiv-1976.

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