In re the Claim of Rizza

Appellate Division of the Supreme Court of New York

In re the Claim of Rizza

288 A.D.2d 795, 733 N.Y.S.2d 308, 2001 N.Y. App. Div. LEXIS 11499

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

DecidedNovember 29, 2001

StatusPublished

Cited by3 cases

This text of 288 A.D.2d 795 (In re the Claim of Rizza) 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 Rizza, 288 A.D.2d 795, 733 N.Y.S.2d 308, 2001 N.Y. App. Div. LEXIS 11499 (N.Y. Ct. App. 2001).

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Opinion

—Appeal from a decision of the Unemployment Insurance Appeal Board, filed August 29, 2000, which ruled that claimant was disqualified from receiving unemployment insurance benefits because his employment was terminated due to misconduct.

Claimant was discharged from his employment as a truck driver for a dairy products company after he tested positive for the use of marihuana following a random drug test. We find no error in the Unemployment Insurance Appeal Board remanding the matter for further development of the record concerning the testing procedures and chain of custody of the urine specimen (see, Labor Law § 621 [3]; see also, Matter of Cumberland [Commissioner of Labor], 249 AD2d 867; Matter of Gilbert [United States Custom Serv. — Sweeney], 232 AD2d 709) or to eradicate any procedural or recording deficiencies resulting from the initial remand hearing (see, Matter of Foster, 262 AD2d 899, lov denied 94 NY2d 760).

Furthermore, given the evidence establishing a proper chain of custody, the positive results of the drug test, and other testimony received at the hearings, substantial evidence supports the Board’s decision that claimant lost his employment due to disqualifying misconduct (see, Matter of Cumberland [Commissioner of Labor], supra). Finally, we reject claimant’s assertion of unfair or biased treatment.

Mercure, J. P., Crew III, Peters, Spain and Lahtinen, 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 August 29, 2000, which ruled that claimant was disqualified from receiving unemployment insurance benefits because his employment was terminated due to misconduct.

Claimant was discharged from his employment as a truck driver for a dairy products company after he tested positive for the use of marihuana following a random drug test. We find no error in the Unemployment Insurance Appeal Board remanding the matter for further development of the record concerning the testing procedures and chain of custody of the urine specimen (see, Labor Law § 621 [3]; see also, Matter of Cumberland [Commissioner of Labor], 249 AD2d 867; Matter of Gilbert [United States Custom Serv. — Sweeney], 232 AD2d 709) or to eradicate any procedural or recording deficiencies resulting from the initial remand hearing (see, Matter of Foster, 262 AD2d 899, lov denied 94 NY2d 760).

Furthermore, given the evidence establishing a proper chain of custody, the positive results of the drug test, and other testimony received at the hearings, substantial evidence supports the Board’s decision that claimant lost his employment due to disqualifying misconduct (see, Matter of Cumberland [Commissioner of Labor], supra). Finally, we reject claimant’s assertion of unfair or biased treatment.

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

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Bluebook (online)

288 A.D.2d 795, 733 N.Y.S.2d 308, 2001 N.Y. App. Div. LEXIS 11499, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-claim-of-rizza-nyappdiv-2001.

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