In re the Claim of Tocantins

Appellate Division of the Supreme Court of New York

In re the Claim of Tocantins

186 A.D.2d 332, 588 N.Y.S.2d 205, 1992 N.Y. App. Div. LEXIS 10777

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

DecidedSeptember 24, 1992

StatusPublished

This text of 186 A.D.2d 332 (In re the Claim of Tocantins) 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 Tocantins, 186 A.D.2d 332, 588 N.Y.S.2d 205, 1992 N.Y. App. Div. LEXIS 10777 (N.Y. Ct. App. 1992).

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Opinion

— Appeal from a decision of the Unemployment Insurance Appeal Board, filed May 20, 1991, which ruled that claimant was disqualified from receiving unemployment insurance benefits because her employment was terminated due to misconduct.

Claimant admitted that on Thursday, March 22, 1990, she [333]*333called the employer’s vice-president to inform him that she was going back to her original four-day work schedule instead of the five-day schedule she had been working, and that he asked her to wait until the following Wednesday when he would be in the office to discuss her request for a pay raise. She also admitted that she then told her immediate supervisor that she would not be in the next day (Fridays had originally been the days she did not work) and that he had recommended against her giving such an ultimatum. She further testified that while she had written a letter to the vice-president dated February 28, 1990 asking for a raise, she had never spoken directly to him about it prior to the March telephone call.

Under these circumstances, the conclusion by the Unemployment Insurance Appeal Board that claimant realized or should have realized that her refusal to work that Friday was placing her job in jeopardy, and that her deliberate refusal to work that day constituted misconduct, is supported by substantial evidence and must be upheld (see, Matter of Valentin [American Museum of Natural History — Roberts], 103 AD2d 919; Matter of Bois [Levine], 53 AD2d 731). We also note that unauthorized absences from work have been held to constitute misconduct (see, Matter of Michelfelder [Ross], 80 AD2d 969; Matter of Goldfarb [Levine], 52 AD2d 965). To the extent that claimant’s arguments establish the existence of substantial evidence to support a decision in her favor, this fails to provide a reason to disturb a contrary decision which is also supported by substantial evidence (see, Matter of Baker [Hart-nett], 147 AD2d 790, appeal dismissed 74 NY2d 714).

Levine, J. P., Mercure, Mahoney, 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 May 20, 1991, which ruled that claimant was disqualified from receiving unemployment insurance benefits because her employment was terminated due to misconduct.

Claimant admitted that on Thursday, March 22, 1990, she [333]*333called the employer’s vice-president to inform him that she was going back to her original four-day work schedule instead of the five-day schedule she had been working, and that he asked her to wait until the following Wednesday when he would be in the office to discuss her request for a pay raise. She also admitted that she then told her immediate supervisor that she would not be in the next day (Fridays had originally been the days she did not work) and that he had recommended against her giving such an ultimatum. She further testified that while she had written a letter to the vice-president dated February 28, 1990 asking for a raise, she had never spoken directly to him about it prior to the March telephone call.

Under these circumstances, the conclusion by the Unemployment Insurance Appeal Board that claimant realized or should have realized that her refusal to work that Friday was placing her job in jeopardy, and that her deliberate refusal to work that day constituted misconduct, is supported by substantial evidence and must be upheld (see, Matter of Valentin [American Museum of Natural History — Roberts], 103 AD2d 919; Matter of Bois [Levine], 53 AD2d 731). We also note that unauthorized absences from work have been held to constitute misconduct (see, Matter of Michelfelder [Ross], 80 AD2d 969; Matter of Goldfarb [Levine], 52 AD2d 965). To the extent that claimant’s arguments establish the existence of substantial evidence to support a decision in her favor, this fails to provide a reason to disturb a contrary decision which is also supported by substantial evidence (see, Matter of Baker [Hart-nett], 147 AD2d 790, appeal dismissed 74 NY2d 714).

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

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186 A.D.2d 332, 588 N.Y.S.2d 205, 1992 N.Y. App. Div. LEXIS 10777, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-claim-of-tocantins-nyappdiv-1992.

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