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In re Claim of Rey-Calderon

NEW YORK SUPREME COURT, APPELLATE DIVISION, THIRD DEPARTMENT


March 5, 2009

IN THE MATTER OF THE CLAIM OF WANDA REY-CALDERON, APPELLANT.
BROOKSET BUS CORPORATION, RESPONDENT. AND COMMISSIONER OF LABOR, RESPONDENT.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Calendar Date: January 26, 2009

Before: Cardona, P.J., Mercure, Peters, Rose and Kane, JJ.

MEMORANDUM AND ORDER

Appeal from a decision of the Unemployment Insurance Appeal Board, filed August 20, 2007, which, upon reconsideration, adhered to its prior ruling that claimant was disqualified from receiving unemployment insurance benefits because her employment was terminated due to misconduct.

Claimant was a school bus dispatcher for the employer. On the day her employment ended, she had reported late to work and her supervisor gave her a verbal warning and a written acknowledgment of the verbal warning for her to sign. However, claimant refused to sign the written acknowledgment and she was discharged. After a hearing, an Administrative Law Judge determined that she had lost her employment due to misconduct and the Unemployment Insurance Appeal Board affirmed, prompting this appeal.

"The question of whether a claimant has engaged in disqualifying misconduct presents a factual issue for the Board to resolve and its decision will be upheld if supported by substantial evidence" (Matter of Williams [City of New York Commissioner of Labor], 47 AD3d 994, 994 [2008] [citation omitted]). We find that, based upon, among other things, the testimony of claimant that she had repeatedly refused to sign the warning and that a heated exchange had occurred regarding her refusal, substantial evidence supports the Board's determination (see Matter of Brown [Sweeney], 243 AD2d 808, 808 [1997]; Matter of Tietze [Hudacs], 193 AD2d 1000, 1000 [1993]). The differing accounts of what transpired on the morning in question presented a credibility issue for the Board to resolve (see Matter of Kretchmer [Commissioner of Labor], 8 AD3d 849, 850 [2004]).

Cardona, P.J., Mercure, Peters, Rose and Kane, JJ., concur.

ORDERED that the decision is affirmed, without costs.

20090305

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