In re the Claim of Biscardi

Appellate Division of the Supreme Court of New York

In re the Claim of Biscardi

305 A.D.2d 794, 757 N.Y.S.2d 906, 2003 N.Y. App. Div. LEXIS 5212

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

DecidedMay 8, 2003

StatusPublished

Cited by3 cases

This text of 305 A.D.2d 794 (In re the Claim of Biscardi) 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 Biscardi, 305 A.D.2d 794, 757 N.Y.S.2d 906, 2003 N.Y. App. Div. LEXIS 5212 (N.Y. Ct. App. 2003).

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Opinion

—Appeals (1) from a decision of the Unemployment Insurance Appeal Board, filed December 10, 2001, which ruled that claimant was disqualified from receiving unemployment insurance benefits because his employment was terminated due to misconduct, and (2) from a decision of said Board, filed February 15, 2002, which denied claimant’s application to reopen and reconsider the prior decision.

Claimant was discharged from his employment as a car detailer for repeated tardiness. The employer testified that claimant received both oral and written warnings and was aware that continued tardiness could ultimately result in his discharge. Nevertheless, claimant’s time cards reflect that he continued to be late for work. It is well settled that excessive tardiness, despite warnings, can constitute disqualifying misconduct (see Matter of Iglesias, 297 AD2d 849 [2002]; Matter of Jerome, 275 AD2d 835 [2000]; Matter of Shorte, 270 AD2d 554 [2000]). Under the circumstances presented here, we find that substantial evidence supports the decision of the Unemployment Insurance Appeal Board that claimant engaged in disqualifying misconduct, notwithstanding his assertion that he was first entitled to suspension prior to being discharged. Furthermore, we find no reason to disturb the Board’s decision not to grant claimant’s application to reopen and reconsider its prior decision (see Matter of McIntire, 284 AD2d 703 [2001]).

Cardona, P.J., Crew III, Spain, Carpinello and Rose, JJ., concur. Ordered that the decisions are affirmed, without costs.

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—Appeals (1) from a decision of the Unemployment Insurance Appeal Board, filed December 10, 2001, which ruled that claimant was disqualified from receiving unemployment insurance benefits because his employment was terminated due to misconduct, and (2) from a decision of said Board, filed February 15, 2002, which denied claimant’s application to reopen and reconsider the prior decision.

Claimant was discharged from his employment as a car detailer for repeated tardiness. The employer testified that claimant received both oral and written warnings and was aware that continued tardiness could ultimately result in his discharge. Nevertheless, claimant’s time cards reflect that he continued to be late for work. It is well settled that excessive tardiness, despite warnings, can constitute disqualifying misconduct (see Matter of Iglesias, 297 AD2d 849 [2002]; Matter of Jerome, 275 AD2d 835 [2000]; Matter of Shorte, 270 AD2d 554 [2000]). Under the circumstances presented here, we find that substantial evidence supports the decision of the Unemployment Insurance Appeal Board that claimant engaged in disqualifying misconduct, notwithstanding his assertion that he was first entitled to suspension prior to being discharged. Furthermore, we find no reason to disturb the Board’s decision not to grant claimant’s application to reopen and reconsider its prior decision (see Matter of McIntire, 284 AD2d 703 [2001]).

Cardona, P.J., Crew III, Spain, Carpinello and Rose, JJ., concur. Ordered that the decisions are affirmed, without costs.

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305 A.D.2d 794, 757 N.Y.S.2d 906, 2003 N.Y. App. Div. LEXIS 5212, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-claim-of-biscardi-nyappdiv-2003.

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