In re the Claim of Russolello

Appellate Division of the Supreme Court of New York

In re the Claim of Russolello

196 A.D.2d 929, 602 N.Y.S.2d 235, 1993 N.Y. App. Div. LEXIS 8709

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

DecidedSeptember 23, 1993

StatusPublished

This text of 196 A.D.2d 929 (In re the Claim of Russolello) 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 Russolello, 196 A.D.2d 929, 602 N.Y.S.2d 235, 1993 N.Y. App. Div. LEXIS 8709 (N.Y. Ct. App. 1993).

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Opinion

Appeal from a decision of the Unemployment Insurance Appeal Board, filed April 20, 1992, which ruled that claimant was disqualified from receiving unemployment insurance benefits because her employment was terminated due to misconduct.

Claimant admitted that she was absent from work from May 6, 1991 to May 9, 1991 and that she did not call in to report her absence until May 10, 1991. Her only reason was that she had a stomach virus and that after seeing a doctor on May 10, 1991 she called "[a]s soon as I got home * * * and I apologized for not calling in sooner”. According to the employer’s representatives, all employees were told at the beginning of their employment that they were required to notify the employer prior to being absent. In addition, claimant had on two previous occasions been warned concerning her failure to call in prior to taking time off. Under these circumstances, the conclusion by the Unemployment Insurance Appeal Board that claimant’s actions rose to the level of misconduct is supported by substantial evidence and must be upheld (see, Matter of Helwig [Hartnett], 170 AD2d 730; Matter of Rossano [Levine], 52 AD2d 1006). Although claimant’s testimony conflicted with that of the employer’s representatives, this merely raised questions of fact and credibility for the Board to resolve (see, Matter of Woods [Ross], 54 AD2d 515; Matter of Brewer [Levine], 53 AD2d 751). Claimant’s remaining contentions have been reviewed and rejected as unpersuasive.

Weiss, P. J., Mercure, Cardona, Mahoney and Casey, 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 20, 1992, which ruled that claimant was disqualified from receiving unemployment insurance benefits because her employment was terminated due to misconduct.

Claimant admitted that she was absent from work from May 6, 1991 to May 9, 1991 and that she did not call in to report her absence until May 10, 1991. Her only reason was that she had a stomach virus and that after seeing a doctor on May 10, 1991 she called "[a]s soon as I got home * * * and I apologized for not calling in sooner”. According to the employer’s representatives, all employees were told at the beginning of their employment that they were required to notify the employer prior to being absent. In addition, claimant had on two previous occasions been warned concerning her failure to call in prior to taking time off. Under these circumstances, the conclusion by the Unemployment Insurance Appeal Board that claimant’s actions rose to the level of misconduct is supported by substantial evidence and must be upheld (see, Matter of Helwig [Hartnett], 170 AD2d 730; Matter of Rossano [Levine], 52 AD2d 1006). Although claimant’s testimony conflicted with that of the employer’s representatives, this merely raised questions of fact and credibility for the Board to resolve (see, Matter of Woods [Ross], 54 AD2d 515; Matter of Brewer [Levine], 53 AD2d 751). Claimant’s remaining contentions have been reviewed and rejected as unpersuasive.

Weiss, P. J., Mercure, Cardona, Mahoney and Casey, JJ., concur. Ordered that the decision is affirmed, without costs.

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Bluebook (online)

196 A.D.2d 929, 602 N.Y.S.2d 235, 1993 N.Y. App. Div. LEXIS 8709, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-claim-of-russolello-nyappdiv-1993.

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