In re the Claim of Simmons

Appellate Division of the Supreme Court of New York

In re the Claim of Simmons

59 A.D.2d 640, 398 N.Y.S.2d 193, 1977 N.Y. App. Div. LEXIS 13503

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

DecidedSeptember 29, 1977

StatusPublished

This text of 59 A.D.2d 640 (In re the Claim of Simmons) 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 Simmons, 59 A.D.2d 640, 398 N.Y.S.2d 193, 1977 N.Y. App. Div. LEXIS 13503 (N.Y. Ct. App. 1977).

Pincite

Opinion

Appeal from a decision of the Unemployment Insurance Appeal Board, filed June 30, 1976, which denied benefits to the claimant upon the ground that he lost his employment through his misconduct. The hearing before the referee presented issues of credibility for the referee which he determined in favor of claimant; however, the board has exercised its powers to reverse the finding of the referee as to an alleged threat made by claimant to his supervisor. The employer’s application to the board was for permission to reopen the proceedings for the purpose of introducing additional testimony which would have a bearing on credibility. Attached to the employer’s papers was an affidavit by a proposed eyewitness to the claimant’s misconduct which recited that she had not previously testified because of unavailability. The board treated the application for reopening as an appeal from the referee’s decision and the record contains a notice of appeal sent to the claimant and his counsel. The present record presents a [641]*641situation where without the affidavit, there was substantial evidence to support the finding that a threat was made by claimant to his supervisor and that such was misconduct barring the payment of benefits. The board’s decision does not indicate that it in any ■ way accepted the additional evidence offered by the employer and unlike the situation in Matter of Ferrara (Levine) (48 AD2d 750) this was not new evidence offered in support of a claim for benefits. In this case the documentary evidence went only to the question of a reopening and it does not appear that the board’s decision fails to ensure that the substantial rights of the claimant were protected (Labor Law, § 622, subd 2; see Matter of Walker [Levine], 51 AD2d 1079). Decision affirmed, without costs. Koreman, P. J., Kane, Mahoney, Mikoll and Herlihy, JJ., concur.

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Appeal from a decision of the Unemployment Insurance Appeal Board, filed June 30, 1976, which denied benefits to the claimant upon the ground that he lost his employment through his misconduct. The hearing before the referee presented issues of credibility for the referee which he determined in favor of claimant; however, the board has exercised its powers to reverse the finding of the referee as to an alleged threat made by claimant to his supervisor. The employer’s application to the board was for permission to reopen the proceedings for the purpose of introducing additional testimony which would have a bearing on credibility. Attached to the employer’s papers was an affidavit by a proposed eyewitness to the claimant’s misconduct which recited that she had not previously testified because of unavailability. The board treated the application for reopening as an appeal from the referee’s decision and the record contains a notice of appeal sent to the claimant and his counsel. The present record presents a [641]*641situation where without the affidavit, there was substantial evidence to support the finding that a threat was made by claimant to his supervisor and that such was misconduct barring the payment of benefits. The board’s decision does not indicate that it in any ■ way accepted the additional evidence offered by the employer and unlike the situation in Matter of Ferrara (Levine) (48 AD2d 750) this was not new evidence offered in support of a claim for benefits. In this case the documentary evidence went only to the question of a reopening and it does not appear that the board’s decision fails to ensure that the substantial rights of the claimant were protected (Labor Law, § 622, subd 2; see Matter of Walker [Levine], 51 AD2d 1079). Decision affirmed, without costs. Koreman, P. J., Kane, Mahoney, Mikoll and Herlihy, JJ., concur.

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Bluebook (online)

59 A.D.2d 640, 398 N.Y.S.2d 193, 1977 N.Y. App. Div. LEXIS 13503, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-claim-of-simmons-nyappdiv-1977.

Opinion

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