In re the Claim of Garcia-Primer

Appellate Division of the Supreme Court of New York

In re the Claim of Garcia-Primer

9 A.D.3d 730, 779 N.Y.S.2d 838, 2004 N.Y. App. Div. LEXIS 9767

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

DecidedJuly 15, 2004

StatusPublished

Cited by1 cases

This text of 9 A.D.3d 730 (In re the Claim of Garcia-Primer) 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 Garcia-Primer, 9 A.D.3d 730, 779 N.Y.S.2d 838, 2004 N.Y. App. Div. LEXIS 9767 (N.Y. Ct. App. 2004).

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Opinion

Appeal from a decision of the Unemployment Insurance Appeal Board, filed May 23, 2003, which ruled that claimant was disqualified from receiving unemployment insurance benefits because her employment was terminated due to misconduct.

Claimant worked as a rehabilitation assistant for the employer, which provides services to children and adults with disabilities. The employer had previously warned claimant about her poor attendance record and had notified her in writing that she would be terminated if her attendance did not improve. Claimant left work on unpaid medical leave in June 2002, and was scheduled to return to work on Friday, September 6, 2002. Claimant contacted the employer on September 3, 2002 and told the employer that her doctor did not authorize her return to [731]*731work until after her weekend off, on September 9, 2002. The employer never got back to her, however, and claimant assumed she was to report to work on September 6, 2002 as scheduled. On the morning of September 6, 2002, claimant called and said that she could not come in to work because her daughter was sick, and the employer discharged her.

A claimant’s continued absenteeism after numerous warnings may constitute disqualifying misconduct (see Matter of Kryszak [Commissioner of Labor], 308 AD2d 645, 646 [2003]; Matter of Schnabel [Commissioner of Labor], 307 AD2d 572, 572-573 [2003]). Under the facts of this case, and noting that a doctor’s note states that claimant’s daughter could return to school on September 6, 2002, substantial evidence supports the Unemployment Insurance Appeal Board’s decision that claimant’s employment was terminated under disqualifying circumstances (see Matter of Schnabel [Commissioner of Labor], supra at 572-573). We have examined claimant’s remaining contentions and find them to be without merit.

Cardona, EJ., Mercure, Spain, Lahtinen and Kane, 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 May 23, 2003, which ruled that claimant was disqualified from receiving unemployment insurance benefits because her employment was terminated due to misconduct.

Claimant worked as a rehabilitation assistant for the employer, which provides services to children and adults with disabilities. The employer had previously warned claimant about her poor attendance record and had notified her in writing that she would be terminated if her attendance did not improve. Claimant left work on unpaid medical leave in June 2002, and was scheduled to return to work on Friday, September 6, 2002. Claimant contacted the employer on September 3, 2002 and told the employer that her doctor did not authorize her return to [731]*731work until after her weekend off, on September 9, 2002. The employer never got back to her, however, and claimant assumed she was to report to work on September 6, 2002 as scheduled. On the morning of September 6, 2002, claimant called and said that she could not come in to work because her daughter was sick, and the employer discharged her.

A claimant’s continued absenteeism after numerous warnings may constitute disqualifying misconduct (see Matter of Kryszak [Commissioner of Labor], 308 AD2d 645, 646 [2003]; Matter of Schnabel [Commissioner of Labor], 307 AD2d 572, 572-573 [2003]). Under the facts of this case, and noting that a doctor’s note states that claimant’s daughter could return to school on September 6, 2002, substantial evidence supports the Unemployment Insurance Appeal Board’s decision that claimant’s employment was terminated under disqualifying circumstances (see Matter of Schnabel [Commissioner of Labor], supra at 572-573). We have examined claimant’s remaining contentions and find them to be without merit.

Cardona, EJ., Mercure, Spain, Lahtinen and Kane, JJ., concur. Ordered that the decision is affirmed, without costs.

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Bluebook (online)

9 A.D.3d 730, 779 N.Y.S.2d 838, 2004 N.Y. App. Div. LEXIS 9767, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-claim-of-garcia-primer-nyappdiv-2004.

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