In re the Claim of Dowd

Appellate Division of the Supreme Court of New York

In re the Claim of Dowd

169 A.D.2d 867, 564 N.Y.S.2d 599, 1991 N.Y. App. Div. LEXIS 28

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

DecidedJanuary 3, 1991

StatusPublished

Cited by1 cases

This text of 169 A.D.2d 867 (In re the Claim of Dowd) 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 Dowd, 169 A.D.2d 867, 564 N.Y.S.2d 599, 1991 N.Y. App. Div. LEXIS 28 (N.Y. Ct. App. 1991).

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Opinion

Appeal from a decision of the Unemployment Insurance Appeal Board, filed March 27, 1990, which, upon reconsideration, adhered to its prior decision ruling that claimant was disqualified from receiving unemployment insurance benefits because his employment was terminated due to misconduct.

On the day in question, one of claimant’s supervisors could not find him and claimant failed to punch out. Even if it is true that claimant was helping a co-worker and therefore had not left work early, the record is clear that claimant could not leave his work area without permission. Claimant admitted that he neither told anyone he was going to help someone nor asked permission to do so. Claimant also admitted that he had been warned about punching out and that his failure to follow [868]*868instructions would lead to his discharge. To the extent the testimony was conflicting, this created only a question of credibility which is within the exclusive province of the Unemployment Insurance Appeal Board (see, Matter of Padilla [Sephardic Home for the Aged—Roberts], 113 AD2d 997). Under all of these circumstances, the Board’s determination that claimant’s employment was terminated due to misconduct is supported by substantial evidence (see, Matter of Taylor [New York Tel. Co.—Levine], 53 AD2d 772; Matter of McGlynn [Levine], 52 AD2d 709).

Decision affirmed, without costs. Mahoney, P. J., Casey, Weiss, Mercure and Harvey, JJ., concur.

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Appeal from a decision of the Unemployment Insurance Appeal Board, filed March 27, 1990, which, upon reconsideration, adhered to its prior decision ruling that claimant was disqualified from receiving unemployment insurance benefits because his employment was terminated due to misconduct.

On the day in question, one of claimant’s supervisors could not find him and claimant failed to punch out. Even if it is true that claimant was helping a co-worker and therefore had not left work early, the record is clear that claimant could not leave his work area without permission. Claimant admitted that he neither told anyone he was going to help someone nor asked permission to do so. Claimant also admitted that he had been warned about punching out and that his failure to follow [868]*868instructions would lead to his discharge. To the extent the testimony was conflicting, this created only a question of credibility which is within the exclusive province of the Unemployment Insurance Appeal Board (see, Matter of Padilla [Sephardic Home for the Aged—Roberts], 113 AD2d 997). Under all of these circumstances, the Board’s determination that claimant’s employment was terminated due to misconduct is supported by substantial evidence (see, Matter of Taylor [New York Tel. Co.—Levine], 53 AD2d 772; Matter of McGlynn [Levine], 52 AD2d 709).

Decision affirmed, without costs. Mahoney, P. J., Casey, Weiss, Mercure and Harvey, JJ., concur.

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Bluebook (online)

169 A.D.2d 867, 564 N.Y.S.2d 599, 1991 N.Y. App. Div. LEXIS 28, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-claim-of-dowd-nyappdiv-1991.

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