In re the Claim of O'Connell

Appellate Division of the Supreme Court of New York

In re the Claim of O'Connell

308 A.D.2d 622, 764 N.Y.S.2d 148, 2003 N.Y. App. Div. LEXIS 9310

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

DecidedSeptember 11, 2003

StatusPublished

Cited by2 cases

This text of 308 A.D.2d 622 (In re the Claim of O'Connell) 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 O'Connell, 308 A.D.2d 622, 764 N.Y.S.2d 148, 2003 N.Y. App. Div. LEXIS 9310 (N.Y. Ct. App. 2003).

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Opinion

—Appeal from a decision of the Unemployment Insurance Appeal Board, filed April’22, 2002, which ruled that claimant was disqualified from receiving unemployment insurance benefits because his employment was terminated due to misconduct.

[623]*623Claimant was discharged from his employment as a service technician repairing printers for a computer supply and service company after the employer discovered that he was also working for his brother-in-law’s computer supply business repairing printers. Substantial evidence supports the decision of the Unemployment Insurance Appeal Board that claimant engaged in disqualifying misconduct. We reject claimant’s assertion that the Board incorrectly relied on hearsay evidence over sworn testimony to conclude that he was performing services for a competitor. Although claimant did not consider the two companies to be competitors, his testimony that both companies supplied computer equipment and service in the same geographic area provides sufficient evidence to support the finding by the Board that the companies were competitors.

In any event, the employee manual directed that any secondary employment should have been discussed with a manager to determine if there was any conflict of interest. Given claimant’s admission that he considered his brother-in-law to be a “knuckle head” for disclosing claimant’s employment situation to his employer, the Board rejected claimant’s assertion that he was unaware that he was required to disclose his secondary job to the employer. Inasmuch as “acts of an employee that have a detrimental impact upon the employer’s interests have been found to constitute disqualifying misconduct especially when they run counter to the employer’s established policies” (Matter of Knight [Commissioner of Labor], 300 AD2d 727, 727 [2002]; see Matter of Colombo [Commissioner of Labor], 283 AD2d 752, 753 [2001]; Matter of Naymark, 232 AD2d 804, 804 [1996]), we find no reason to disturb the Board’s decision.

Mercure, J.P., Peters, Rose, Lahtinen 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 April’22, 2002, which ruled that claimant was disqualified from receiving unemployment insurance benefits because his employment was terminated due to misconduct.

[623]*623Claimant was discharged from his employment as a service technician repairing printers for a computer supply and service company after the employer discovered that he was also working for his brother-in-law’s computer supply business repairing printers. Substantial evidence supports the decision of the Unemployment Insurance Appeal Board that claimant engaged in disqualifying misconduct. We reject claimant’s assertion that the Board incorrectly relied on hearsay evidence over sworn testimony to conclude that he was performing services for a competitor. Although claimant did not consider the two companies to be competitors, his testimony that both companies supplied computer equipment and service in the same geographic area provides sufficient evidence to support the finding by the Board that the companies were competitors.

In any event, the employee manual directed that any secondary employment should have been discussed with a manager to determine if there was any conflict of interest. Given claimant’s admission that he considered his brother-in-law to be a “knuckle head” for disclosing claimant’s employment situation to his employer, the Board rejected claimant’s assertion that he was unaware that he was required to disclose his secondary job to the employer. Inasmuch as “acts of an employee that have a detrimental impact upon the employer’s interests have been found to constitute disqualifying misconduct especially when they run counter to the employer’s established policies” (Matter of Knight [Commissioner of Labor], 300 AD2d 727, 727 [2002]; see Matter of Colombo [Commissioner of Labor], 283 AD2d 752, 753 [2001]; Matter of Naymark, 232 AD2d 804, 804 [1996]), we find no reason to disturb the Board’s decision.

Mercure, J.P., Peters, Rose, Lahtinen and Kane, JJ., concur. Ordered that the decision is affirmed, without costs.

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Bluebook (online)

308 A.D.2d 622, 764 N.Y.S.2d 148, 2003 N.Y. App. Div. LEXIS 9310, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-claim-of-oconnell-nyappdiv-2003.

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