In re the Claim of Martinez

Appellate Division of the Supreme Court of New York

In re the Claim of Martinez

288 A.D.2d 684, 732 N.Y.S.2d 684, 2001 N.Y. App. Div. LEXIS 10908

Appellate Division of the Supreme Court of the State of New York·Decided November 15, 2001·Published·Cited by 4 cases

Opinion

—Appeal from a decision of the Unemployment Insurance Appeal Board, filed August 4, 2000, which denied claimant’s application for reconsideration of a prior decision ruling, inter alia, that claimant was disqualified from receiving unemployment insurance benefits because his employment was terminated due to misconduct.

[685] Claimant was employed as a delivery truck driver when his employment was terminated in February 1999 based on his supervisor’s allegations that he had overreported the number of stops that he had made on his delivery route. The Unemployment Insurance Appeal Board subsequently ruled that claimant was disqualified from receiving unemployment insurance benefits because he lost his employment under disqualifying circumstances. Upon reconsideration, the Board adhered to so much of its previous decision as had found claimant guilty of disqualifying misconduct; however, it rescinded a prior assessment of a recoverable overpayment, finding that claimant did not make a false statement in order to obtain benefits. Claimant then filed this application to reopen the matter, contending that substantial evidence does not support the Board’s finding of disqualifying misconduct.

Whether to grant an application to reopen lies within the discretion of the Board and, absent a showing that its discretion has been abused, the Board’s decision will not be disturbed (see, Matter of Gbolo [Commissioner of Labor], 272 AD2d 775; Matter ofAures [Buffalo Bd. of Educ. — Commissioner of Labor], 272 AD2d 664, 665). We find no abuse of discretion here. Substantial evidence in the form of the testimony given on behalf of the employer supports the Board’s ruling that claimant’s failure to comply with the employer’s record-keeping procedures and policies rose to the level of disqualifying misconduct (see, Matter of Jones [Commissioner of Labor], 285 AD2d 801). While claimant presented evidence to the contrary, we defer to the Board’s resolution of this credibility issue (see, Matter of Marshall [Commissioner of Labor], 284 AD2d 775, lv denied 97 NY2d 602).

Cardona, P. J., Mercure, Peters, Spain and Carpinello, 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 August 4, 2000, which denied claimant’s application for reconsideration of a prior decision ruling, inter alia, that claimant was disqualified from receiving unemployment insurance benefits because his employment was terminated due to misconduct.

[685] Claimant was employed as a delivery truck driver when his employment was terminated in February 1999 based on his supervisor’s allegations that he had overreported the number of stops that he had made on his delivery route. The Unemployment Insurance Appeal Board subsequently ruled that claimant was disqualified from receiving unemployment insurance benefits because he lost his employment under disqualifying circumstances. Upon reconsideration, the Board adhered to so much of its previous decision as had found claimant guilty of disqualifying misconduct; however, it rescinded a prior assessment of a recoverable overpayment, finding that claimant did not make a false statement in order to obtain benefits. Claimant then filed this application to reopen the matter, contending that substantial evidence does not support the Board’s finding of disqualifying misconduct.

Whether to grant an application to reopen lies within the discretion of the Board and, absent a showing that its discretion has been abused, the Board’s decision will not be disturbed (see, Matter of Gbolo [Commissioner of Labor], 272 AD2d 775; Matter ofAures [Buffalo Bd. of Educ. — Commissioner of Labor], 272 AD2d 664, 665). We find no abuse of discretion here. Substantial evidence in the form of the testimony given on behalf of the employer supports the Board’s ruling that claimant’s failure to comply with the employer’s record-keeping procedures and policies rose to the level of disqualifying misconduct (see, Matter of Jones [Commissioner of Labor], 285 AD2d 801). While claimant presented evidence to the contrary, we defer to the Board’s resolution of this credibility issue (see, Matter of Marshall [Commissioner of Labor], 284 AD2d 775, lv denied 97 NY2d 602).

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

In re the Claim of Martinez, 288 A.D.2d 684, 732 N.Y.S.2d 684, 2001 N.Y. App. Div. LEXIS 10908 (N.Y. Ct. App. 2001).

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