In re the Claim of Smalling

Appellate Division of the Supreme Court of New York

In re the Claim of Smalling

173 A.D.2d 1035, 570 N.Y.S.2d 372, 1991 N.Y. App. Div. LEXIS 7569

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

DecidedMay 16, 1991

StatusPublished

Cited by1 cases

This text of 173 A.D.2d 1035 (In re the Claim of Smalling) 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 Smalling, 173 A.D.2d 1035, 570 N.Y.S.2d 372, 1991 N.Y. App. Div. LEXIS 7569 (N.Y. Ct. App. 1991).

Pincite

Opinion

Appeal from a decision of the Unemployment Insurance Appeal Board, filed February 15, 1990, which ruled that claimant was disqualified from receiving unemployment insurance benefits because her employment was terminated due to misconduct.

The evidence establishes that claimant crumpled up a page of a file that had been requested by her supervisor and left it on his desk. She had previously been warned as to her attitude. The record also supports the conclusion that her behavior was disruptive; her action was seen by other employees who also witnessed her utterance of a profanity when asked the reasons for her behavior. To the extent that the testimony was conflicting, this presented a question of credibility which was within the exclusive province of the Unemployment Insurance Appeal Board to resolve (see, Matter of Padilla [Sephardic Home for the Aged—Roberts], 113 AD2d 997). Under the circumstances, the decision that claimant’s actions constituted misconduct is supported by substantial evidence [1036]*1036and should be upheld (see, Matter of Valentin [American Museum of Natural History—Roberts], 103 AD2d 919).

Decision affirmed, without costs. Casey, J. P., Weiss, Mikoll, Levine and Crew III, JJ., concur.

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Appeal from a decision of the Unemployment Insurance Appeal Board, filed February 15, 1990, which ruled that claimant was disqualified from receiving unemployment insurance benefits because her employment was terminated due to misconduct.

The evidence establishes that claimant crumpled up a page of a file that had been requested by her supervisor and left it on his desk. She had previously been warned as to her attitude. The record also supports the conclusion that her behavior was disruptive; her action was seen by other employees who also witnessed her utterance of a profanity when asked the reasons for her behavior. To the extent that the testimony was conflicting, this presented a question of credibility which was within the exclusive province of the Unemployment Insurance Appeal Board to resolve (see, Matter of Padilla [Sephardic Home for the Aged—Roberts], 113 AD2d 997). Under the circumstances, the decision that claimant’s actions constituted misconduct is supported by substantial evidence [1036]*1036and should be upheld (see, Matter of Valentin [American Museum of Natural History—Roberts], 103 AD2d 919).

Decision affirmed, without costs. Casey, J. P., Weiss, Mikoll, Levine and Crew III, JJ., concur.

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Bluebook (online)

173 A.D.2d 1035, 570 N.Y.S.2d 372, 1991 N.Y. App. Div. LEXIS 7569, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-claim-of-smalling-nyappdiv-1991.

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