In re the Claim of La Rocca

90 A.D.2d 947, 457 N.Y.S.2d 901, 1982 N.Y. App. Div. LEXIS 19224

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 24, 1982
• Status: Published

Opinion

Appeal from a decision of the Unemployment Insurance Appeal Board, filed June 24, 1981, which ruled that claimant was entitled to receive benefits. Claimant has been employed by the New York City Department of Transportation as a motor vehicle operator since 1963. It was his job to make deliveries in a particular motor vehicle and, as part of his duties, claimant was to keep a daily record of the mileage he put on the vehicle each day. On October 27, 1980, claimant was served with charges of violating his employer’s rules. Thereafter, on November 18, 1980, an informal conference was held concerning, inter alia, the charges as they related to the fact that claimant’s mileage records did not match the odometer reading upon his vehicle. On December 1,1980, the conference leader rendered a written decision in which he found that certain charges, as they pertained to claimant’s falsification of records, were warranted, and recommended that claimant be suspended for 30 days. After receiving advice from his union, claimant accepted the 30-day suspension rather than pursue a grievance hearing. Under these circumstances, we agree with the employer that Matter of Cahill (Ross) (77 AD2d 734) is controlling. It is uncontradicted that claimant had the right to receive a grievance hearing; he chose not to request a hearing, instead deciding to accept the 30-day suspension. Accordingly, as in Cahill, claimant voluntarily left his employment and should therefore be disqualified from receiving benefits. Decision reversed, without costs, and matter remitted to the Unemployment Insurance Appeal Board for further proceedings not inconsistent herewith. Mahoney, P. J., Sweeney, Kane, Mikoll and Yesawich, Jr., JJ., concur.