In re the Claim of Choute

60 A.D.2d 738, 400 N.Y.S.2d 907, 1977 N.Y. App. Div. LEXIS 14781

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 29, 1977
• Status: Published

Opinion

Appeal from a decision of the Unemployment Insurance Appeal Board, filed September 17, 1976, which disqualified claimant from receiving benefits on the ground that he lost his employment due to misconduct. Claimant, a deliveryman, worked for his employer for approximately six months when he made a delivery of certain valuable piece goods without getting a receipt therefor. Subsequently, the customer denied receiving certain bolts of cloth, of which five were later found on the customer’s premises. The employer gathered his deliverymen together in the morning to reaffirm the company’s position that they were not to make any deliveries without getting signed receipts for the merchandise. Claimant refused to stop talking while the employer was attempting to instruct the men, told the employer to "shut up” and was discharged. Such findings constitute substantial evidence to support the board’s decision and it must be affirmed. Decision affirmed, without costs. Kane, J. P., Mahoney, Main and Larkin, JJ., concur; Mikoll, J., dissents and votes to reverse in the following memorandum. Mikoll, J. (dissenting). I respectfully dissent. A petty, isolated incident of irritability does not constitute misconduct. The decision of the board should be reversed.