In re the Claim of Berry

264 A.D.2d 923, 695 N.Y.S.2d 209, 1999 N.Y. App. Div. LEXIS 9345

Opinion

Appeals from two decisions of the Unemployment Insurance Appeal Board, filed May 19, 1998, which ruled that claimants were entitled to receive unemployment insurance benefits.

Claimants, both licensed practical nurses, were discharged by the employer, a hospital, for verbally abusing three elderly female patients. It was alleged that claimants yelled at the patients, woke them up to take them to the bathroom and then “herded” them like cattle. Claimants’ applications for unemployment insurance benefits were denied and, at the ensuing hearing, the employer produced witnesses who either were not present during the alleged incidents or, in fact, corroborated the testimony of claimants who denied any rude or abusive behavior on their part.

We find that substantial evidence supports the Unemployment Insurance Appeal Board’s ruling that claimants did not lose their employment under disqualifying circumstances and were entitled to unemployment insurance benefits (see, Matter of McDuffie [Menorah Home & Hosp. — Commissioner of Labor], 257 AD2d '824). We decline to substitute our judgment for that of the Board, even when the Board’s resolution of credibility issues differs from that reached by the Administrative Law Judge (see, Matter of Higgins [Marketsoft, Inc. — Commissioner of Labor], 257 AD2d 881; Matter of Phillips [Commissioner of Labor], 257 AD2d 867).

Mikoll, J. P., Mercure, Peters, Spain and Graffeo, JJ., concur. Ordered that the decisions are affirmed, without costs.