In re the Claim of Lapham

Appellate Division of the Supreme Court of New York

In re the Claim of Lapham

7 A.D.3d 862, 776 N.Y.S.2d 916, 2004 N.Y. App. Div. LEXIS 6512

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

DecidedMay 6, 2004

StatusPublished

Cited by1 cases

This text of 7 A.D.3d 862 (In re the Claim of Lapham) 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 Lapham, 7 A.D.3d 862, 776 N.Y.S.2d 916, 2004 N.Y. App. Div. LEXIS 6512 (N.Y. Ct. App. 2004).

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Opinion

Appeal from a decision of the Unemployment Insurance Appeal Board, filed September 12, 2003, which ruled that claimant was disqualified from receiving unemployment insurance benefits because his employment was terminated due to misconduct.

Substantial evidences supports the decision of the Unemployment Insurance Appeal Board finding that claimant lost his employment as a driver for a warehouse due to disqualifying misconduct when he refused to work mandatory overtime. The employer testified that claimant was aware at the time he was hired that overtime, including Saturday, was a condition of [863]*863employment. Inasmuch as claimant refused, the employer’s reasonable overtime work assignment and he was aware that it could lead to his termination, we find no reason to disturb the Board’s decision (see Matter of Legault [Commissioner of Labor], 286 AD2d 795 [2001]; Matter of Velez [Sweeney], 243 AD2d 939 [1997], lv denied 91 NY2d 805 [1998]; Matter of Lander [Sweeney], 242 AD2d 821 [1997]). To the extent that claimant’s testimony differed from that presented by the employer with regard to the agreed-upon overtime, this created a credibility issue for the Board to resolve (see Matter of Mack [Commissioner of Labor], 257 AD2d 828 [1999]).

Cardona, P.J., Mercure, Carpinello, Lahtinen and Kane, 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 September 12, 2003, which ruled that claimant was disqualified from receiving unemployment insurance benefits because his employment was terminated due to misconduct.

Substantial evidences supports the decision of the Unemployment Insurance Appeal Board finding that claimant lost his employment as a driver for a warehouse due to disqualifying misconduct when he refused to work mandatory overtime. The employer testified that claimant was aware at the time he was hired that overtime, including Saturday, was a condition of [863]*863employment. Inasmuch as claimant refused, the employer’s reasonable overtime work assignment and he was aware that it could lead to his termination, we find no reason to disturb the Board’s decision (see Matter of Legault [Commissioner of Labor], 286 AD2d 795 [2001]; Matter of Velez [Sweeney], 243 AD2d 939 [1997], lv denied 91 NY2d 805 [1998]; Matter of Lander [Sweeney], 242 AD2d 821 [1997]). To the extent that claimant’s testimony differed from that presented by the employer with regard to the agreed-upon overtime, this created a credibility issue for the Board to resolve (see Matter of Mack [Commissioner of Labor], 257 AD2d 828 [1999]).

Cardona, P.J., Mercure, Carpinello, Lahtinen and Kane, JJ., concur. Ordered that the decision is affirmed, without costs.

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Bluebook (online)

7 A.D.3d 862, 776 N.Y.S.2d 916, 2004 N.Y. App. Div. LEXIS 6512, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-claim-of-lapham-nyappdiv-2004.

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