In re the Claim of Tallarico

Appellate Division of the Supreme Court of New York

In re the Claim of Tallarico

183 A.D.2d 1025, 583 N.Y.S.2d 618, 1992 N.Y. App. Div. LEXIS 7135

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

DecidedMay 14, 1992

StatusPublished

This text of 183 A.D.2d 1025 (In re the Claim of Tallarico) 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 Tallarico, 183 A.D.2d 1025, 583 N.Y.S.2d 618, 1992 N.Y. App. Div. LEXIS 7135 (N.Y. Ct. App. 1992).

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Opinion

—Appeal from a decision of the Unemployment Insurance Appeal Board, filed August 5, 1991, which ruled that claimant was disqualified from receiving unemployment insurance benefits because his employment was terminated due to misconduct.

Claimant testified that upon an initial inquiry he was mistakenly told that he had two days of leave still available to him. Claimant admitted, however, that he was later told by the employer that he could not have the two days off for [1026]*1026vacation that he had requested because he had no such leave time left. He took the days off anyway because he had already made his travel arrangements. Given these facts, there was substantial evidence to support the conclusion by the Unemployment Insurance Appeal Board that claimant’s unauthorized absence constituted misconduct and its determination disqualifying him from benefits must therefore be upheld (see, Matter of Goldfarb [Levine], 52 AD2d 965; Matter of Cicci [Levine], 52 AD2d 705). Although claimant argued, contrary to the employer’s contention, that he had not been warned that he could be discharged if he failed to report to work on those days, this merely raised a question of credibility for the Board to resolve (see, Matter of Padilla [Sephardic Home for the Aged — Roberts], 113 AD2d 997).

Weiss, P. J., Yesawich Jr., Crew III, Casey and Harvey, 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 5, 1991, which ruled that claimant was disqualified from receiving unemployment insurance benefits because his employment was terminated due to misconduct.

Claimant testified that upon an initial inquiry he was mistakenly told that he had two days of leave still available to him. Claimant admitted, however, that he was later told by the employer that he could not have the two days off for [1026]*1026vacation that he had requested because he had no such leave time left. He took the days off anyway because he had already made his travel arrangements. Given these facts, there was substantial evidence to support the conclusion by the Unemployment Insurance Appeal Board that claimant’s unauthorized absence constituted misconduct and its determination disqualifying him from benefits must therefore be upheld (see, Matter of Goldfarb [Levine], 52 AD2d 965; Matter of Cicci [Levine], 52 AD2d 705). Although claimant argued, contrary to the employer’s contention, that he had not been warned that he could be discharged if he failed to report to work on those days, this merely raised a question of credibility for the Board to resolve (see, Matter of Padilla [Sephardic Home for the Aged — Roberts], 113 AD2d 997).

Weiss, P. J., Yesawich Jr., Crew III, Casey and Harvey, JJ., concur. Ordered that the decision is affirmed, without costs.

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183 A.D.2d 1025, 583 N.Y.S.2d 618, 1992 N.Y. App. Div. LEXIS 7135, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-claim-of-tallarico-nyappdiv-1992.

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