In re the Claim of Lyubinskaya

Appellate Division of the Supreme Court of New York

In re the Claim of Lyubinskaya

288 A.D.2d 551, 731 N.Y.S.2d 820, 2001 N.Y. App. Div. LEXIS 10020

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

DecidedNovember 1, 2001

StatusPublished

Cited by2 cases

This text of 288 A.D.2d 551 (In re the Claim of Lyubinskaya) 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 Lyubinskaya, 288 A.D.2d 551, 731 N.Y.S.2d 820, 2001 N.Y. App. Div. LEXIS 10020 (N.Y. Ct. App. 2001).

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Opinion

—Appeal from a decision of the Unemployment Insurance Appeal Board, filed October 10, 2000, which, inter alia, ruled that claimant was disqualified from receiving unemployment insurance benefits because her employment was terminated due to misconduct.

Claimant was terminated from her employment as an auditor at the employer’s retail store after she violated the written policy requiring employees to notify a store manager by telephone prior to anticipated absences. Claimant subsequently filed an application for unemployment insurance benefits stating that “lack of work” was the reason her employment had ended. The Unemployment Insurance Appeal Board ruled that claimant had lost her employment due to disqualifying misconduct and charged her with a recoverable overpayment [552]*552and the loss of eight benefit days. Substantial evidence supports the Board’s decision. An employee’s unauthorized absence from work has been held to constitute disqualifying misconduct as has the failure to comply with the employer’s established policies and procedures regarding notification of absences (see, Matter of Greene [Commissioner of Labor], 252 AD2d 622, 623; Matter of Boyle [Sweeney], 247 AD2d 809). While claimant testified that the manager had hung up on her before she could explain that she would be absent for the next “few days” rather than just on the day of the call, the manager testified to the contrary, thereby presenting an issue of credibility that was appropriately resolved by the Board (see, Matter of Jacque [Commissioner of Labor], 270 AD2d 541). Claimant’s remaining contentions have been examined and found to be lacking in merit.

Cardona, P. J., Crew III, Carpinello, Mugglin and Lahtinen, 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 October 10, 2000, which, inter alia, ruled that claimant was disqualified from receiving unemployment insurance benefits because her employment was terminated due to misconduct.

Claimant was terminated from her employment as an auditor at the employer’s retail store after she violated the written policy requiring employees to notify a store manager by telephone prior to anticipated absences. Claimant subsequently filed an application for unemployment insurance benefits stating that “lack of work” was the reason her employment had ended. The Unemployment Insurance Appeal Board ruled that claimant had lost her employment due to disqualifying misconduct and charged her with a recoverable overpayment [552]*552and the loss of eight benefit days. Substantial evidence supports the Board’s decision. An employee’s unauthorized absence from work has been held to constitute disqualifying misconduct as has the failure to comply with the employer’s established policies and procedures regarding notification of absences (see, Matter of Greene [Commissioner of Labor], 252 AD2d 622, 623; Matter of Boyle [Sweeney], 247 AD2d 809). While claimant testified that the manager had hung up on her before she could explain that she would be absent for the next “few days” rather than just on the day of the call, the manager testified to the contrary, thereby presenting an issue of credibility that was appropriately resolved by the Board (see, Matter of Jacque [Commissioner of Labor], 270 AD2d 541). Claimant’s remaining contentions have been examined and found to be lacking in merit.

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

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Bluebook (online)

288 A.D.2d 551, 731 N.Y.S.2d 820, 2001 N.Y. App. Div. LEXIS 10020, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-claim-of-lyubinskaya-nyappdiv-2001.

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