In re the Claim of Simpson

Appellate Division of the Supreme Court of New York

In re the Claim of Simpson

301 A.D.2d 1005, 753 N.Y.S.2d 756, 2003 N.Y. App. Div. LEXIS 665

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

DecidedJanuary 30, 2003

StatusPublished

Cited by2 cases

This text of 301 A.D.2d 1005 (In re the Claim of Simpson) 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 Simpson, 301 A.D.2d 1005, 753 N.Y.S.2d 756, 2003 N.Y. App. Div. LEXIS 665 (N.Y. Ct. App. 2003).

Pincite

Opinion

—Appeal from a decision of the Unemployment Insurance Appeal Board, filed May 3, 2002, 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 dish washer/bus boy after he failed to report to work as scheduled despite having been warned that he was close to exceeding the number of absences permitted by the employer’s absentee policy. The Unemployment Insurance Appeal Board, reversing the decision of the Administrative Law Judge, ruled that claimant lost his employment under disqualifying circumstances. We affirm. Claimant testified that he called his manager and told him he would be late because he had missed his regular bus. Although the manager told claimant to try to get to work, claimant returned home when he realized that he would not be able to get to work until the last two hours of his shift. Although the Board assessed claimant’s credibility differently than the two Administrative Law Judges who previously granted claimant’s request for unemployment insurance benefits, it is within the exclusive province of the Board to resolve any credibility issues (see Matter of Lionetti [Newsday, Inc.—Commissioner of Labor], 261 AD2d 753; Matter of Elewa [Commissioner of Labor], 249 AD2d 618). Under these circumstances, there is substantial evidence to support the Board’s [1006]*1006decision that claimant lost his employment due to disqualifying misconduct (see Matter of Foster [South Nassau Communities Hosp.—Hudacs], 192 AD2d 1010).

Peters, J.P., Spain, Carpinello, Rose 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 May 3, 2002, 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 dish washer/bus boy after he failed to report to work as scheduled despite having been warned that he was close to exceeding the number of absences permitted by the employer’s absentee policy. The Unemployment Insurance Appeal Board, reversing the decision of the Administrative Law Judge, ruled that claimant lost his employment under disqualifying circumstances. We affirm. Claimant testified that he called his manager and told him he would be late because he had missed his regular bus. Although the manager told claimant to try to get to work, claimant returned home when he realized that he would not be able to get to work until the last two hours of his shift. Although the Board assessed claimant’s credibility differently than the two Administrative Law Judges who previously granted claimant’s request for unemployment insurance benefits, it is within the exclusive province of the Board to resolve any credibility issues (see Matter of Lionetti [Newsday, Inc.—Commissioner of Labor], 261 AD2d 753; Matter of Elewa [Commissioner of Labor], 249 AD2d 618). Under these circumstances, there is substantial evidence to support the Board’s [1006]*1006decision that claimant lost his employment due to disqualifying misconduct (see Matter of Foster [South Nassau Communities Hosp.—Hudacs], 192 AD2d 1010).

Peters, J.P., Spain, Carpinello, Rose and Lahtinen, JJ., concur. Ordered that the decision is affirmed, without costs.

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Bluebook (online)

301 A.D.2d 1005, 753 N.Y.S.2d 756, 2003 N.Y. App. Div. LEXIS 665, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-claim-of-simpson-nyappdiv-2003.

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