In re the Claim of Kemp

Appellate Division of the Supreme Court of New York

In re the Claim of Kemp

10 A.D.3d 793, 781 N.Y.S.2d 807, 2004 N.Y. App. Div. LEXIS 10958

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

DecidedSeptember 23, 2004

StatusPublished

Cited by3 cases

This text of 10 A.D.3d 793 (In re the Claim of Kemp) 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 Kemp, 10 A.D.3d 793, 781 N.Y.S.2d 807, 2004 N.Y. App. Div. LEXIS 10958 (N.Y. Ct. App. 2004).

Pincite

Opinion

Appeal from a decision of the Unemployment Insurance Appeal Board, filed June 2, 2003, which ruled that claimant was disqualified from receiving unemployment insurance benefits because he lost his employment due to misconduct.

Claimant was discharged from his employment after he used his office computer to view Web sites which violated the employer’s policy governing use of the Internet. The Unemployment Insurance Appeal Board disqualified him from receiving unemployment insurance benefits on the basis that he lost his employment due to misconduct. Claimant appeals. Based upon our review of the record, we find that substantial evidence supports the Board’s decision. The manager who investigated the matter testified that numerous hits were made from petitioner’s office computer to three Web sites, which were considered by management to be pornographic. Although petitioner maintained that someone else could have used his computer to access such Web sites and that two of the identified Web sites were not pornographic, this presented a credibility issue for the Board to

[794]*794resolve (see Matter of Manno [Commissioner of Labor], 8 AD3d 869 [2004]; Matter of Barcene [Commissioner of Labor], 6 AD3d 855 [2004]). Therefore, we decline to disturb the Board’s decision.

Crew III, J.P., Peters, Spain, Carpinello and Mugglin, 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 June 2, 2003, which ruled that claimant was disqualified from receiving unemployment insurance benefits because he lost his employment due to misconduct.

Claimant was discharged from his employment after he used his office computer to view Web sites which violated the employer’s policy governing use of the Internet. The Unemployment Insurance Appeal Board disqualified him from receiving unemployment insurance benefits on the basis that he lost his employment due to misconduct. Claimant appeals. Based upon our review of the record, we find that substantial evidence supports the Board’s decision. The manager who investigated the matter testified that numerous hits were made from petitioner’s office computer to three Web sites, which were considered by management to be pornographic. Although petitioner maintained that someone else could have used his computer to access such Web sites and that two of the identified Web sites were not pornographic, this presented a credibility issue for the Board to

[794]*794resolve (see Matter of Manno [Commissioner of Labor], 8 AD3d 869 [2004]; Matter of Barcene [Commissioner of Labor], 6 AD3d 855 [2004]). Therefore, we decline to disturb the Board’s decision.

Crew III, J.P., Peters, Spain, Carpinello and Mugglin, JJ., concur. Ordered that the decision is affirmed, without costs.

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Bluebook (online)

10 A.D.3d 793, 781 N.Y.S.2d 807, 2004 N.Y. App. Div. LEXIS 10958, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-claim-of-kemp-nyappdiv-2004.

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