In re the Claim of Piervencenti

Appellate Division of the Supreme Court of New York

In re the Claim of Piervencenti

39 A.D.3d 1108, 834 N.Y.S.2d 404

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

DecidedApril 26, 2007

StatusPublished

Cited by6 cases

This text of 39 A.D.3d 1108 (In re the Claim of Piervencenti) 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.

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In re the Claim of Piervencenti, 39 A.D.3d 1108, 834 N.Y.S.2d 404 (N.Y. Ct. App. 2007).

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Opinion

Appeal from a decision of the Unemployment Insurance Appeal Board, filed January 25, 2006, which ruled that claimant was disqualified from receiving unemployment insurance benefits because her employment was terminated due to misconduct.

Claimant worked for Crest/Good Manufacturing Company, Inc. as a sales representative. After her employment was terminated, she applied for unemployment insurance benefits and the Department of Labor issued an initial determination finding her eligible for such benefits. Crest/Good objected and requested a hearing, contending that claimant was dismissed because of misconduct. Following a hearing, the Administrative Law Judge overruled the initial determination and found claimant to be disqualified from receiving benefits. The Unemployment Insurance Appeal Board affirmed the Administrative Law Judge’s decision. Claimant appeals.

We affirm. “Whether a claimant is guilty of disqualifying misconduct, within the meaning of the Labor Law, presents a [1109]*1109factual issue for resolution by the Board and its decision, so long as it is supported by substantial evidence, will not be disturbed” (Matter of Pitts [Reeb Millwork Corp. of N.Y—Commissioner of Labor], 309 AD2d 1121, 1121 [2003] [citation omitted]; see Matter of Law [Software Workshop, Inc.—Commissioner of Labor], 20 AD3d 847, 848 [2005]. Furthermore, “[i]t is well settled that an employee’s insubordinate and disrespectful behavior toward a supervisor may constitute disqualifying misconduct” (Matter of Montanye [Commissioner of Labor], 10 AD3d 830, 831 [2004]). Here, the testimony of claimant’s supervisor established that claimant was late for work on multiple occasions and had to be reprimanded for several acts of unprofessional and/or insubordinate behavior prior to the conversation that resulted in her discharge (see Matter of Terry [Commissioner of Labor], 23 AD3d 727, 728 [2005]; Matter of Sona [Commissioner of Labor], 13 AD3d 799, 800 [2004]). To the extent that claimant’s testimony differed from that of her supervisor, it created a credibility issue for the Board to resolve (see Matter of Lambert [Commissioner of Labor], 34 AD3d 948 [2006]; Matter of Kretchmer [Commissioner of Labor], 8 AD3d 849, 850 [2004]).

Mercure, J.E, Crew III, Peters, Spain and Rose, 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 January 25, 2006, which ruled that claimant was disqualified from receiving unemployment insurance benefits because her employment was terminated due to misconduct.

Claimant worked for Crest/Good Manufacturing Company, Inc. as a sales representative. After her employment was terminated, she applied for unemployment insurance benefits and the Department of Labor issued an initial determination finding her eligible for such benefits. Crest/Good objected and requested a hearing, contending that claimant was dismissed because of misconduct. Following a hearing, the Administrative Law Judge overruled the initial determination and found claimant to be disqualified from receiving benefits. The Unemployment Insurance Appeal Board affirmed the Administrative Law Judge’s decision. Claimant appeals.

We affirm. “Whether a claimant is guilty of disqualifying misconduct, within the meaning of the Labor Law, presents a [1109]*1109factual issue for resolution by the Board and its decision, so long as it is supported by substantial evidence, will not be disturbed” (Matter of Pitts [Reeb Millwork Corp. of N.Y—Commissioner of Labor], 309 AD2d 1121, 1121 [2003] [citation omitted]; see Matter of Law [Software Workshop, Inc.—Commissioner of Labor], 20 AD3d 847, 848 [2005]. Furthermore, “[i]t is well settled that an employee’s insubordinate and disrespectful behavior toward a supervisor may constitute disqualifying misconduct” (Matter of Montanye [Commissioner of Labor], 10 AD3d 830, 831 [2004]). Here, the testimony of claimant’s supervisor established that claimant was late for work on multiple occasions and had to be reprimanded for several acts of unprofessional and/or insubordinate behavior prior to the conversation that resulted in her discharge (see Matter of Terry [Commissioner of Labor], 23 AD3d 727, 728 [2005]; Matter of Sona [Commissioner of Labor], 13 AD3d 799, 800 [2004]). To the extent that claimant’s testimony differed from that of her supervisor, it created a credibility issue for the Board to resolve (see Matter of Lambert [Commissioner of Labor], 34 AD3d 948 [2006]; Matter of Kretchmer [Commissioner of Labor], 8 AD3d 849, 850 [2004]).

Mercure, J.E, Crew III, Peters, Spain and Rose, JJ., concur. Ordered that the decision is affirmed, without costs.

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39 A.D.3d 1108, 834 N.Y.S.2d 404, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-claim-of-piervencenti-nyappdiv-2007.

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