In re the Claim of Holder

Appellate Division of the Supreme Court of New York

In re the Claim of Holder

49 A.D.3d 1131, 853 N.Y.2d 717

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

DecidedMarch 27, 2008

StatusPublished

This text of 49 A.D.3d 1131 (In re the Claim of Holder) 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 Holder, 49 A.D.3d 1131, 853 N.Y.2d 717 (N.Y. Ct. App. 2008).

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Opinion

The credible evidence establishes that claimant, an unarmed security guard, was discharged from his employment after he reported to work under the influence of alcohol. “It is well settled that absent a showing that an employee is suffering from alcoholism, reporting to work under the influence of alcohol may constitute disqualifying misconduct” (Matter of Kiteta [Commissioner of Labor], 4 AD3d 712, 713 [2004] [citations omitted]; see Matter of Stuber [Commissioner of Labor], 32 AD3d 1063, 1063-1064 [2006]; Matter of Kryszak [Commissioner of Labor], 308 AD2d 645, 646 [2003]). No such showing was made here. Although claimant contended that his slurred speech on the night in question was the product of medication he was taking, he conceded at the hearing that he provided no such explanation to the employer prior to his discharge and, further, failed to deny the employer’s repeated allegations of intoxication. Moreover, his belated explanations or denials presented a credibility issue for the Unemployment Insurance Appeal Board to resolve (see Matter of Kiteta [Commissioner of Labor], 4 AD3d at 713).

Mercure, J.P., Feters, Carpinello, Rose and Malone Jr., JJ., concur. Ordered that the decision is affirmed, without costs.

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The credible evidence establishes that claimant, an unarmed security guard, was discharged from his employment after he reported to work under the influence of alcohol. “It is well settled that absent a showing that an employee is suffering from alcoholism, reporting to work under the influence of alcohol may constitute disqualifying misconduct” (Matter of Kiteta [Commissioner of Labor], 4 AD3d 712, 713 [2004] [citations omitted]; see Matter of Stuber [Commissioner of Labor], 32 AD3d 1063, 1063-1064 [2006]; Matter of Kryszak [Commissioner of Labor], 308 AD2d 645, 646 [2003]). No such showing was made here. Although claimant contended that his slurred speech on the night in question was the product of medication he was taking, he conceded at the hearing that he provided no such explanation to the employer prior to his discharge and, further, failed to deny the employer’s repeated allegations of intoxication. Moreover, his belated explanations or denials presented a credibility issue for the Unemployment Insurance Appeal Board to resolve (see Matter of Kiteta [Commissioner of Labor], 4 AD3d at 713).

Mercure, J.P., Feters, Carpinello, Rose and Malone Jr., JJ., concur. Ordered that the decision is affirmed, without costs.

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Bluebook (online)

49 A.D.3d 1131, 853 N.Y.2d 717, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-claim-of-holder-nyappdiv-2008.

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