In re the Claim of Burns

Appellate Division of the Supreme Court of New York

In re the Claim of Burns

259 A.D.2d 797, 686 N.Y.S.2d 188, 1999 N.Y. App. Div. LEXIS 2089

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

DecidedMarch 4, 1999

StatusPublished

Cited by4 cases

This text of 259 A.D.2d 797 (In re the Claim of Burns) 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 Burns, 259 A.D.2d 797, 686 N.Y.S.2d 188, 1999 N.Y. App. Div. LEXIS 2089 (N.Y. Ct. App. 1999).

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Opinion

Appeal from a decision of the Unemployment Insurance Appeal Board, filed March 28, 1997, which ruled that claimant was disqualified from receiving unemployment insurance benefits because his employment was terminated due to misconduct.

Claimant was discharged from his employment as a security guard after he failed to show up for his shift on January 15, 1996 or call in to report his absence. He received a warning for committing a similar infraction two weeks earlier. Substantial evidence supports the Unemployment Insurance Appeal Board’s ruling that claimant lost his employment under disqualifying circumstances. It is well established that a claimant’s unauthorized absence from work may constitute disqualifying misconduct (see, Matter of Svetlich [Sweeney], 236 AD2d 762). Claimant’s assertion that his absence from work was excusable based upon his belief that the day was a work holiday raised an issue of credibility for resolution by the Board (see, Matter of Boyle [Sweeney], 247 AD2d 809). The issue was properly resolved in the employer’s favor in light of claimant’s admission to reading the employer’s handbook which did not include Martin Luther King Day as one of the employer’s paid holidays.

Cardona, P. J., Mikoll, Mercure, Crew III and Yesawich Jr., JJ., concur. Ordered that the decision is affirmed, without costs.

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Appeal from a decision of the Unemployment Insurance Appeal Board, filed March 28, 1997, which ruled that claimant was disqualified from receiving unemployment insurance benefits because his employment was terminated due to misconduct.

Claimant was discharged from his employment as a security guard after he failed to show up for his shift on January 15, 1996 or call in to report his absence. He received a warning for committing a similar infraction two weeks earlier. Substantial evidence supports the Unemployment Insurance Appeal Board’s ruling that claimant lost his employment under disqualifying circumstances. It is well established that a claimant’s unauthorized absence from work may constitute disqualifying misconduct (see, Matter of Svetlich [Sweeney], 236 AD2d 762). Claimant’s assertion that his absence from work was excusable based upon his belief that the day was a work holiday raised an issue of credibility for resolution by the Board (see, Matter of Boyle [Sweeney], 247 AD2d 809). The issue was properly resolved in the employer’s favor in light of claimant’s admission to reading the employer’s handbook which did not include Martin Luther King Day as one of the employer’s paid holidays.

Cardona, P. J., Mikoll, Mercure, Crew III and Yesawich Jr., JJ., concur. Ordered that the decision is affirmed, without costs.

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Bluebook (online)

259 A.D.2d 797, 686 N.Y.S.2d 188, 1999 N.Y. App. Div. LEXIS 2089, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-claim-of-burns-nyappdiv-1999.

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