In re the Claim of Gonzales

Appellate Division of the Supreme Court of New York

In re the Claim of Gonzales

202 A.D.2d 812, 609 N.Y.S.2d 391, 1994 N.Y. App. Div. LEXIS 2497

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

DecidedMarch 17, 1994

StatusPublished

Cited by3 cases

This text of 202 A.D.2d 812 (In re the Claim of Gonzales) 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.

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In re the Claim of Gonzales, 202 A.D.2d 812, 609 N.Y.S.2d 391, 1994 N.Y. App. Div. LEXIS 2497 (N.Y. Ct. App. 1994).

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Opinion

—Casey, J.

Appeal from a decision of the Unemployment Insurance Appeal Board, filed May 22, 1992, which ruled that claimant was disqualified from receiving unemployment insurance benefits because his employment was terminated due to misconduct.

Claimant, a building superintendent in New York City, commenced a vacation to the Philippine Islands in August 1990. Claimant failed to return to his employment on his scheduled return date and sent a mailgram to his supervisor advising that he was too ill to return on the scheduled date and would present a medical certificate upon his return several days later. When claimant returned, he was given a termination letter which mentions that claimant took the same unauthorized extension of his vacation during the preceding year and claimed illness as an excuse. Despite considerable effort to check the authenticity of the medical certificate submitted by claimant from a doctor in Manila, the validity of the certificate was not satisfactorily established. There was evidence contained in a note in claimant’s handwriting in his desk calendar that indicated he had no intention of returning to work on schedule.

Substantial evidence supports the decision of the Unemployment Insurance Appeal Board that claimant was guilty of misconduct by extending his vacation without permission. Misconduct in connection with employment is a question of fact for the Board (Matter of Beykirch [Roberts], 125 AD2d 857, lv denied 73 NY2d 704) and it has been held that extension of a vacation without permission constitutes misconduct (Matter of Chapman [Hudacs], 190 AD2d 941). The Board rejected claimant’s excuse of illness and the record supports this rejection by the Board. The decision should therefore be affirmed.

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

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—Casey, J.

Appeal from a decision of the Unemployment Insurance Appeal Board, filed May 22, 1992, which ruled that claimant was disqualified from receiving unemployment insurance benefits because his employment was terminated due to misconduct.

Claimant, a building superintendent in New York City, commenced a vacation to the Philippine Islands in August 1990. Claimant failed to return to his employment on his scheduled return date and sent a mailgram to his supervisor advising that he was too ill to return on the scheduled date and would present a medical certificate upon his return several days later. When claimant returned, he was given a termination letter which mentions that claimant took the same unauthorized extension of his vacation during the preceding year and claimed illness as an excuse. Despite considerable effort to check the authenticity of the medical certificate submitted by claimant from a doctor in Manila, the validity of the certificate was not satisfactorily established. There was evidence contained in a note in claimant’s handwriting in his desk calendar that indicated he had no intention of returning to work on schedule.

Substantial evidence supports the decision of the Unemployment Insurance Appeal Board that claimant was guilty of misconduct by extending his vacation without permission. Misconduct in connection with employment is a question of fact for the Board (Matter of Beykirch [Roberts], 125 AD2d 857, lv denied 73 NY2d 704) and it has been held that extension of a vacation without permission constitutes misconduct (Matter of Chapman [Hudacs], 190 AD2d 941). The Board rejected claimant’s excuse of illness and the record supports this rejection by the Board. The decision should therefore be affirmed.

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

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Bluebook (online)

202 A.D.2d 812, 609 N.Y.S.2d 391, 1994 N.Y. App. Div. LEXIS 2497, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-claim-of-gonzales-nyappdiv-1994.

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