In re the Claim of Lemons

Appellate Division of the Supreme Court of New York

In re the Claim of Lemons

270 A.D.2d 559, 703 N.Y.S.2d 757, 2000 N.Y. App. Div. LEXIS 2389

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

DecidedMarch 2, 2000

StatusPublished

This text of 270 A.D.2d 559 (In re the Claim of Lemons) 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 Lemons, 270 A.D.2d 559, 703 N.Y.S.2d 757, 2000 N.Y. App. Div. LEXIS 2389 (N.Y. Ct. App. 2000).

Pincite

Opinion

—Appeal from a decision of the Unemployment Insurance Appeal Board, filed July 16, 1999, which denied claimant’s application for reconsideration of a prior decision denying her application for unemployment insurance benefits.

Discharged from her position as a computer-assisted drafter [560]*560for a design company, claimant’s application for unemployment insurance benefits was denied by the Unemployment Insurance Appeal Board on the ground that she was terminated for misconduct following allegations that she made negative comments concerning her employer in the presence of co-workers. Notably, claimant previously had been warned regarding this allegedly improper behavior. We reject claimant’s contention that the Board should reconsider and reopen its previous decision denying her unemployment insurance benefits.

Whether to grant an application to reopen a decision is within the discretion of the Board and, absent an abuse of that discretion, the Board’s decision will not be disturbed (see, Matter of De Prima [Commissioner of Labor], 260 AD2d 715, appeal dismissed 93 NY2d 1040). Here, claimant has failed to demonstrate any abuse of discretion on the part of the Board in denying her application to reopen and reconsider its decision of July 16, 1999. In any event, were the matter properly before us we would find substantial evidence to support the Board’s conclusions denying claimant’s application for benefits. “It is well settled that employee behavior that is detrimental to an employer’s interest and persists despite * * * warnings can be construed as disqualifying misconduct” (Matter of Seely [Reconstruction Home — Commissioner of Labor], 263 AD2d 650 [citation omitted]). Furthermore, claimant’s contention that she was never warned to refrain from making negative comments about her employer merely presented a credibility issue for resolution by the Board (see, Matter of Prairie [Commissioner of Labor], 265 AD2d 794).

Cardona, P. J., Mercure, Peters, 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 July 16, 1999, which denied claimant’s application for reconsideration of a prior decision denying her application for unemployment insurance benefits.

Discharged from her position as a computer-assisted drafter [560]*560for a design company, claimant’s application for unemployment insurance benefits was denied by the Unemployment Insurance Appeal Board on the ground that she was terminated for misconduct following allegations that she made negative comments concerning her employer in the presence of co-workers. Notably, claimant previously had been warned regarding this allegedly improper behavior. We reject claimant’s contention that the Board should reconsider and reopen its previous decision denying her unemployment insurance benefits.

Whether to grant an application to reopen a decision is within the discretion of the Board and, absent an abuse of that discretion, the Board’s decision will not be disturbed (see, Matter of De Prima [Commissioner of Labor], 260 AD2d 715, appeal dismissed 93 NY2d 1040). Here, claimant has failed to demonstrate any abuse of discretion on the part of the Board in denying her application to reopen and reconsider its decision of July 16, 1999. In any event, were the matter properly before us we would find substantial evidence to support the Board’s conclusions denying claimant’s application for benefits. “It is well settled that employee behavior that is detrimental to an employer’s interest and persists despite * * * warnings can be construed as disqualifying misconduct” (Matter of Seely [Reconstruction Home — Commissioner of Labor], 263 AD2d 650 [citation omitted]). Furthermore, claimant’s contention that she was never warned to refrain from making negative comments about her employer merely presented a credibility issue for resolution by the Board (see, Matter of Prairie [Commissioner of Labor], 265 AD2d 794).

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

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Bluebook (online)

270 A.D.2d 559, 703 N.Y.S.2d 757, 2000 N.Y. App. Div. LEXIS 2389, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-claim-of-lemons-nyappdiv-2000.

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