In re the Claim of Joyner

Appellate Division of the Supreme Court of New York

In re the Claim of Joyner

232 A.D.2d 804, 649 N.Y.S.2d 346, 1996 N.Y. App. Div. LEXIS 10254

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

DecidedOctober 17, 1996

StatusPublished

Cited by1 cases

This text of 232 A.D.2d 804 (In re the Claim of Joyner) 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 Joyner, 232 A.D.2d 804, 649 N.Y.S.2d 346, 1996 N.Y. App. Div. LEXIS 10254 (N.Y. Ct. App. 1996).

Pincite

Opinion

Appeal from a decision of the Unemployment Insurance Appeal Board, filed August 25, 1995, which ruled that claimant was disqualified from receiving unemployment insurance benefits because her employment was terminated due to misconduct.

Claimant was employed as a theater staff supervisor by the Brooklyn Academy of Music from October 1987 to December 1994. One of her duties was overseeing the scheduling and assignment of ushers employed at various performances, including selecting the ushers to work at the concession stand for extra pay during intermissions. Claimant routinely accepted $2 per assignment from every usher she selected for this extra work. In November 1994, in response to complaints from several ushers, claimant’s supervisor ordered her to stop the practice. When an usher advised the employer’s security director in December 1994 that claimant had continued to collect payments from ushers, she was discharged.

The Board ruled that claimant was disqualified from receiving unemployment insurance benefits because she had been discharged due to misconduct. Upon reviewing the record, we find that the Board’s decision is supported by substantial evidence. Adduced in evidence against claimant were the statements of four ushers attesting that claimant had demanded a share of their concession earnings and that she had done so in at least one instance after she had been directed to stop. Also in evidence were the statements of three supervisors averring that ushers had complained to them about this practice. Claimant admitted her guilt, denying only that she had continued the practice after her supervisor had warned her to discontinue it. While an issue of credibility was raised by these contrary statements, such issue was within the province of the Board to resolve (see, Matter of Velazquez [Hudacs], 204 AD2d 928; Matter of Ciallela [Our Lady of Victory Hosp.—Hartnett], 172 AD2d 888).

Mikoll, J. P., Mercure, Yesawich Jr., Peters and Carpinello, 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 August 25, 1995, which ruled that claimant was disqualified from receiving unemployment insurance benefits because her employment was terminated due to misconduct.

Claimant was employed as a theater staff supervisor by the Brooklyn Academy of Music from October 1987 to December 1994. One of her duties was overseeing the scheduling and assignment of ushers employed at various performances, including selecting the ushers to work at the concession stand for extra pay during intermissions. Claimant routinely accepted $2 per assignment from every usher she selected for this extra work. In November 1994, in response to complaints from several ushers, claimant’s supervisor ordered her to stop the practice. When an usher advised the employer’s security director in December 1994 that claimant had continued to collect payments from ushers, she was discharged.

The Board ruled that claimant was disqualified from receiving unemployment insurance benefits because she had been discharged due to misconduct. Upon reviewing the record, we find that the Board’s decision is supported by substantial evidence. Adduced in evidence against claimant were the statements of four ushers attesting that claimant had demanded a share of their concession earnings and that she had done so in at least one instance after she had been directed to stop. Also in evidence were the statements of three supervisors averring that ushers had complained to them about this practice. Claimant admitted her guilt, denying only that she had continued the practice after her supervisor had warned her to discontinue it. While an issue of credibility was raised by these contrary statements, such issue was within the province of the Board to resolve (see, Matter of Velazquez [Hudacs], 204 AD2d 928; Matter of Ciallela [Our Lady of Victory Hosp.—Hartnett], 172 AD2d 888).

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

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Bluebook (online)

232 A.D.2d 804, 649 N.Y.S.2d 346, 1996 N.Y. App. Div. LEXIS 10254, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-claim-of-joyner-nyappdiv-1996.

Opinion

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