In re the Claim of Kendrick

102 A.D.2d 931, 477 N.Y.S.2d 521, 1984 N.Y. App. Div. LEXIS 19180

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 14, 1984
• Status: Published

Opinion

— Appeal from a decision of the Unemployment Insurance Appeal Board, filed March 2, 1983, which ruled that claimant was entitled to receive benefits. H Claimant was discharged from his employment as a bottled gas serviceman for Glover Bottled Gas Corporation for his refusal to take a polygraph examination requested by officers of the Suffolk County Police Department who were investigating a recent theft at Glover. The police determined that claimant, along with four other persons, was a suspect in the theft. Claimant, after consulting with his union and on advice of his union, refused to take the test and'was discharged by his employer for the refusal. 1 The Unemployment Insurance Appeal Board held that such a refusal did not constitute misconduct within the meaning of subdivision 3 of section 593 of the Labor Law and found that claimant was not disqualified from receiving benefits because of misconduct in connection with his employment. The determination of the board is supported by substantial evidence and should be affirmed. The instant situation falls within the holding of Matter of Kubus (Ross) (62 AD2d 534). The employer’s reliance on Matter of Altieri (Roberts) (92 AD2d 1028) is misplaced. In Altieri, unlike the instant matter, any testimony given by Altieri in the disciplinary inquiry could not be used against him in a subsequent criminal proceeding. Claimant herein was clearly a suspect in a criminal investigation and any statements made by him could possibly be used against him in a criminal prosecution. 11 Decision affirmed, without costs. Main, J. P., Casey, Mikoll, Yesawich, Jr., and Harvey, JJ., concur.