In re the Claim of Atson

64 A.D.3d 1065, 883 N.Y.S.2d 635

Opinion

We affirm. Preliminarily, we note that whether an employee has engaged in disqualifying misconduct is a factual question for the Board to decide and its determination will not be disturbed if supported by substantial evidence (see Matter of Peterson [Commissioner of Labor], 32 AD3d 610, 610 [2006]). Notably, an employee’s failure to comply with the reasonable request of an employer may constitute misconduct disqualifying him or her from receiving unemployment insurance benefits (see Matter of Miles [Commissioner of Labor], 54 AD3d 467, 467-468 [2008]; Matter of Guagliardo [Commissioner of Labor], 27 AD3d 866, 867 [2006]). Here, it is undisputed that claimant told the employer that he could not take two weeks of vacation prior to the start of the employer’s busy season as had been requested. Such request was totally reasonable particularly since the employer had already given claimant an advance on his vacation pay and did not allow employees to take cash in lieu of a vacation. Claimant’s differing version of the other events leading up to his discharge presented a credibility issue for the Board to resolve (see Matter of Tahat [Commissioner of Labor], 58 AD3d 921 [2009]; Matter of Ramirez [Commissioner of Labor], 49 AD3d 953, 954 [2008]). Given that substantial evidence supports the Board’s decision, we find no reason to disturb it.

Cardona, RJ., Rose, Kane, Kavanagh and McCarthy, JJ., concur. Ordered that the decision is affirmed, without costs.