In re the Claim of Mitchell

Appellate Division of the Supreme Court of New York

In re the Claim of Mitchell

61 A.D.2d 1080, 403 N.Y.S.2d 133, 1978 N.Y. App. Div. LEXIS 10765

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

DecidedMarch 9, 1978

StatusPublished

This text of 61 A.D.2d 1080 (In re the Claim of Mitchell) 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 Mitchell, 61 A.D.2d 1080, 403 N.Y.S.2d 133, 1978 N.Y. App. Div. LEXIS 10765 (N.Y. Ct. App. 1978).

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Opinion

Appeal from a decision of the Unemployment Insurance Appeal Board, filed November 18, 1976, which reversed a referee’s decision and held that the claimant was disqualified from benefits because she lost her employment through misconduct. The board on "credible” evidence found: "that the claimant lost her employment as a result of using foul language in a customer’s presence. In light of her prior warnings this constituted misconduct in connection with her employment”. The record does not contain substantial evidence to support the finding that the claimant used "foul” language (the word at issue is "damn”) or that such language would be a violation of company rules. Further, the "prior warnings” given this claimant were unrelated to the use of the word involved in this case and, lastly, the record does not establish that the conduct was offensive to the customer. Decision reversed, with costs, and matter remitted to the Unemployment Insurance Appeal Board for further proceedings not inconsistent herewith. Mahoney, P. J., Greenblott, Sweeney, Kane and Herlihy, JJ., concur.

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Appeal from a decision of the Unemployment Insurance Appeal Board, filed November 18, 1976, which reversed a referee’s decision and held that the claimant was disqualified from benefits because she lost her employment through misconduct. The board on "credible” evidence found: "that the claimant lost her employment as a result of using foul language in a customer’s presence. In light of her prior warnings this constituted misconduct in connection with her employment”. The record does not contain substantial evidence to support the finding that the claimant used "foul” language (the word at issue is "damn”) or that such language would be a violation of company rules. Further, the "prior warnings” given this claimant were unrelated to the use of the word involved in this case and, lastly, the record does not establish that the conduct was offensive to the customer. Decision reversed, with costs, and matter remitted to the Unemployment Insurance Appeal Board for further proceedings not inconsistent herewith. Mahoney, P. J., Greenblott, Sweeney, Kane and Herlihy, JJ., concur.

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Bluebook (online)

61 A.D.2d 1080, 403 N.Y.S.2d 133, 1978 N.Y. App. Div. LEXIS 10765, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-claim-of-mitchell-nyappdiv-1978.