In re the Claim of McCullough

Appellate Division of the Supreme Court of New York

In re the Claim of McCullough

307 A.D.2d 567, 762 N.Y.S.2d 161, 2003 N.Y. App. Div. LEXIS 8177

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

DecidedJuly 17, 2003

StatusPublished

Cited by4 cases

This text of 307 A.D.2d 567 (In re the Claim of McCullough) 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 McCullough, 307 A.D.2d 567, 762 N.Y.S.2d 161, 2003 N.Y. App. Div. LEXIS 8177 (N.Y. Ct. App. 2003).

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Opinion

Appeal from a decision of the Unemployment Insurance Appeal Board, filed November 8, 2002, which ruled that claimant was disqualified from receiving unemployment insurance benefits because her employment was terminated due to misconduct.

Claimant, an accounts clerk, was terminated from her posi[568]*568tion after she failed to return to work following a previously approved day off. The Unemployment Insurance Appeal Board ruled that claimant had lost her employment under disqualifying circumstances. We affirm. It is well settled that an employee’s failure to return to work after the expiration of an authorized leave of absence may constitute disqualifying misconduct (see Matter of Kanber [Commissioner of Labor], 288 AD2d 739 [2001]; Matter of Nikkhah [Commissioner of Labor], 264 AD2d 896, 897 [1999]). In this matter, substantial evidence in the form of the hearing testimony given by the witnesses for the employer supports the Board’s finding that claimant took an unauthorized vacation day, despite warnings that such conduct would not be tolerated, rendering her guilty of disqualifying misconduct. Claimant’s exculpatory testimony presented issues of credibility for resolution by the Board (see Matter of Mahon [Commissioner of Labor], 288 AD2d 740 [2001], lv denied 97 NY2d 612 [2002]).

Mercure, J.P., Crew III, Mugglin, Rose 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 November 8, 2002, which ruled that claimant was disqualified from receiving unemployment insurance benefits because her employment was terminated due to misconduct.

Claimant, an accounts clerk, was terminated from her posi[568]*568tion after she failed to return to work following a previously approved day off. The Unemployment Insurance Appeal Board ruled that claimant had lost her employment under disqualifying circumstances. We affirm. It is well settled that an employee’s failure to return to work after the expiration of an authorized leave of absence may constitute disqualifying misconduct (see Matter of Kanber [Commissioner of Labor], 288 AD2d 739 [2001]; Matter of Nikkhah [Commissioner of Labor], 264 AD2d 896, 897 [1999]). In this matter, substantial evidence in the form of the hearing testimony given by the witnesses for the employer supports the Board’s finding that claimant took an unauthorized vacation day, despite warnings that such conduct would not be tolerated, rendering her guilty of disqualifying misconduct. Claimant’s exculpatory testimony presented issues of credibility for resolution by the Board (see Matter of Mahon [Commissioner of Labor], 288 AD2d 740 [2001], lv denied 97 NY2d 612 [2002]).

Mercure, J.P., Crew III, Mugglin, Rose and Kane, JJ., concur. Ordered that the decision is affirmed, without costs.

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Bluebook (online)

307 A.D.2d 567, 762 N.Y.S.2d 161, 2003 N.Y. App. Div. LEXIS 8177, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-claim-of-mccullough-nyappdiv-2003.

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