In re the Claim of Young

50 A.D.2d 959, 375 N.Y.S.2d 692, 1975 N.Y. App. Div. LEXIS 11912

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 4, 1975
• Status: Published

Opinion

— Appeal from a decision of the Unemployment Insurance Appeal Board, filed March 4, 1975, which affirmed the decision of a referee sustaining the initial determination of the Industrial Commissioner disqualifying claimant from receiving benefits on the ground that claimant lost his employment through misconduct. Evidence adduced at the hearing established that the claimant was discharged for drinking intoxicating beverages while on the job and being away from his post without authorization. On this appeal, claimant contends that he was denied his constitutional right of due process under the Fourteenth Amendment of the United States Constitution because he was not afforded the opportunity of cross-examination of his employer (Matter of Harper [Levine], 41 AD2d 975). In the instant case, unlike Harper (supra), the employer appeared and testified at a scheduled hearing at which the claimant failed to appear. Claimant’s application to reopen was granted. After claimant again failed to appear at the new hearing, at which the employer’s representative was present, the hearing was closed. When claimant finally arrived, after the case was closed and after the employer had gone, the case was reopened for the purpose of taking the claimant’s testimony. By his failure to appear at the time and place of the hearing, claimant waived his constitutional right to crpss-examine the employer. Decision affirmed, without costs. Herlihy, P. J., Sweeney, Koreman, Larkin and Reynolds, JJ., concur.