In re the Claim of Lugo

251 A.D.2d 742, 673 N.Y.S.2d 772, 1998 N.Y. App. Div. LEXIS 6489

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 4, 1998
• Status: Published

Opinion

—Appeal from a decision of the Unemployment Insurance Appeal Board, filed February 28, 1997, which ruled that claimant was disqualified from receiving unemployment insurance benefits because his employment was terminated due to misconduct.

Claimant was discharged from his employment as a security guard for consuming alcohol during his lunch hour, having received prior warnings to refrain from such conduct. The Unemployment Insurance Appeal Board, reversing the decision of the Administrative Law Judge (hereinafter ALJ), ruled that claimant was disqualified from receiving benefits on the basis that he lost his employment due to misconduct. We affirm. Consuming alcohol while on the job has been held to constitute disqualifying misconduct (see, Matter of Daly [Sweeney], 244 AD2d 614, 615). Given claimant’s admission that he consumed alcohol during lunch on the day in question and the testimony of co-workers that after lunch claimant’s words were slurred, he could not keep his balance and he was talking loudly, we conclude that substantial evidence supports the Board’s decision. While considerable weight is accorded to the credibility determinations of the ALJ, the Board is not bound thereby and is entitled to resolve issues of credibility differently than the ALJ (see, Matter of Di Donato [Hartnett], 176 AD2d 1102, 1103). Claimant’s remaining contentions have been reviewed and found to be without merit.

Cardona, P. J., Mikoll, Mercure, Crew III and Carpinello, JJ., concur. Ordered that the decision is affirmed, without costs.