In re the Claim of Prairie

Appellate Division of the Supreme Court of New York

In re the Claim of Prairie

265 A.D.2d 794, 696 N.Y.S.2d 316, 1999 N.Y. App. Div. LEXIS 11039

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

DecidedOctober 28, 1999

StatusPublished

Cited by4 cases

This text of 265 A.D.2d 794 (In re the Claim of Prairie) 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 Prairie, 265 A.D.2d 794, 696 N.Y.S.2d 316, 1999 N.Y. App. Div. LEXIS 11039 (N.Y. Ct. App. 1999).

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Opinion

—Appeal from a decision of the Unemployment Insurance Appeal Board, filed July 23, 1998, which ruled that claimant was disqualified from receiving unemployment insurance benefits because her employment was terminated due to misconduct.

Discharged from her position as a certified nurse’s aide for a health care facility, claimant’s application for unemployment

[795]*795insurance benefits was denied by the Unemployment Insurance Appeal Board on the ground that she was terminated for misconduct following allegations that she yelled at an elderly resident. Notably, claimant previously had been warned and suspended as a result of complaints by residents regarding allegedly improper behavior. We reject claimant’s contention that the Board’s decision is not supported by substantial evidence. “It is well settled that employee behavior that is detrimental to an employer’s interest and persists despite * * * warnings can be construed as disqualifying misconduct” (Matter of Seely [Reconstruction Home—Commissioner of Labor], 263 AD2d 650 [citation omitted]; see, Matter of Creary [Commissioner of Labor], 254 AD2d 644). Although claimant denied mistreating the resident, her testimony merely presented a credibility issue, which the Board was free to resolve against her (see generally, Matter of Dennis [Westgate Nursing Home—Sweeney], 233 AD2d 730, lv denied 89 NY2d 811). Finally, we are unpersuaded by claimant’s argument that the Board was without authority to reopen a prior decision on its own motion and remit for a further hearing (see, Labor Law § 534).

Cardona, P. J., Crew III, Yesawich Jr., Carpinello and Mugglin, 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 July 23, 1998, which ruled that claimant was disqualified from receiving unemployment insurance benefits because her employment was terminated due to misconduct.

Discharged from her position as a certified nurse’s aide for a health care facility, claimant’s application for unemployment

[795]*795insurance benefits was denied by the Unemployment Insurance Appeal Board on the ground that she was terminated for misconduct following allegations that she yelled at an elderly resident. Notably, claimant previously had been warned and suspended as a result of complaints by residents regarding allegedly improper behavior. We reject claimant’s contention that the Board’s decision is not supported by substantial evidence. “It is well settled that employee behavior that is detrimental to an employer’s interest and persists despite * * * warnings can be construed as disqualifying misconduct” (Matter of Seely [Reconstruction Home—Commissioner of Labor], 263 AD2d 650 [citation omitted]; see, Matter of Creary [Commissioner of Labor], 254 AD2d 644). Although claimant denied mistreating the resident, her testimony merely presented a credibility issue, which the Board was free to resolve against her (see generally, Matter of Dennis [Westgate Nursing Home—Sweeney], 233 AD2d 730, lv denied 89 NY2d 811). Finally, we are unpersuaded by claimant’s argument that the Board was without authority to reopen a prior decision on its own motion and remit for a further hearing (see, Labor Law § 534).

Cardona, P. J., Crew III, Yesawich Jr., Carpinello and Mugglin, JJ., concur. Ordered that the decision is affirmed, without costs.

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Bluebook (online)

265 A.D.2d 794, 696 N.Y.S.2d 316, 1999 N.Y. App. Div. LEXIS 11039, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-claim-of-prairie-nyappdiv-1999.

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