In re the Claim of Cumberland

Appellate Division of the Supreme Court of New York

In re the Claim of Cumberland

249 A.D.2d 867, 672 N.Y.S.2d 459, 1998 N.Y. App. Div. LEXIS 4842

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

DecidedApril 30, 1998

StatusPublished

Cited by6 cases

This text of 249 A.D.2d 867 (In re the Claim of Cumberland) 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 Cumberland, 249 A.D.2d 867, 672 N.Y.S.2d 459, 1998 N.Y. App. Div. LEXIS 4842 (N.Y. Ct. App. 1998).

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Opinion

—Appeal from a decision of the Unemployment Insurance Appeal Board, filed September 26, 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 position as a train switch fabricator after he tested positive for the use of cocaine following a random drug test. The Unemployment Insurance Appeal Board disqualified claimant from receiving unemployment insurance benefits on the basis that he was terminated for misconduct. Notably, claimant does not contest the accuracy of the test results nor the procedures employed. Under the circumstances, we find substantial evidence in the record to support the Board’s determination that claimant’s actions amounted to disqualifying misconduct given that “[a]n employee’s use of cocaine represents a willful disregard of the standards of conduct an employer has the right to expect” (Matter of Bruno [Sweeney], 236 AD2d 730, 731; see, Matter of Gilbert [United States Custom Serv. — Sweeney], 232 AD2d 709). Although claimant testified that he accidently smoked cocaine without being aware that he was doing so, this claim merely presented a credibility issue which the Board was entitled to resolve in the employer’s favor (see, Matter of Jonassen [Sweeney], 233 AD2d 738).

Mercure, J. P., Yesawich Jr., Spain, Carpinello and Graffeo, 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 September 26, 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 position as a train switch fabricator after he tested positive for the use of cocaine following a random drug test. The Unemployment Insurance Appeal Board disqualified claimant from receiving unemployment insurance benefits on the basis that he was terminated for misconduct. Notably, claimant does not contest the accuracy of the test results nor the procedures employed. Under the circumstances, we find substantial evidence in the record to support the Board’s determination that claimant’s actions amounted to disqualifying misconduct given that “[a]n employee’s use of cocaine represents a willful disregard of the standards of conduct an employer has the right to expect” (Matter of Bruno [Sweeney], 236 AD2d 730, 731; see, Matter of Gilbert [United States Custom Serv. — Sweeney], 232 AD2d 709). Although claimant testified that he accidently smoked cocaine without being aware that he was doing so, this claim merely presented a credibility issue which the Board was entitled to resolve in the employer’s favor (see, Matter of Jonassen [Sweeney], 233 AD2d 738).

Mercure, J. P., Yesawich Jr., Spain, Carpinello and Graffeo, JJ., concur. Ordered that the decision is affirmed, without costs.

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Bluebook (online)

249 A.D.2d 867, 672 N.Y.S.2d 459, 1998 N.Y. App. Div. LEXIS 4842, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-claim-of-cumberland-nyappdiv-1998.

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