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In re Claim of Syed

NEW YORK SUPREME COURT, APPELLATE DIVISION, THIRD DEPARTMENT


April 16, 2009

IN THE MATTER OF THE CLAIM OF FAZLUL H. SYED, APPELLANT.
IKEA NEW YORK, LLC, RESPONDENT.
v.
COMMISSIONER OF LABOR, RESPONDENT.

The opinion of the court was delivered by: Kane, J.

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: March 2, 2009

Before: Mercure, J.P., Spain, Kane, Kavanagh and McCarthy, JJ.

MEMORANDUM AND ORDER

Appeal from a decision of the Unemployment Insurance Appeal Board, filed September 19, 2007, which, among other things, ruled that claimant was disqualified from receiving unemployment insurance benefits because he lost his employment due to misconduct.

Substantial evidence supports the Unemployment Insurance Appeal Board's finding that claimant, a sales associate, was discharged from his employment due to misconduct. "It is well established that an employee's unauthorized absence from work may constitute disqualifying misconduct" (Matter of Tahat [Commissioner of Labor], 58 AD3d 921, 921 [2009] [citations omitted]; see Matter of Chiou [Commissioner of Labor], 22 AD3d 1024 [2005]). Here, the record reveals that claimant was absent from work for approximately five weeks, even though his employer had approved only a two-week vacation leave. To the extent that claimant disputes the employer's version of the underlying events and contends, among other things, that he was absent due to a previously authorized medical leave, this presented a credibility issue for the Board to resolve (see Matter of Ramirez [Commissioner of Labor], 49 AD3d 953, 954 [2008]).

Mercure, J.P., Spain, Kane, Kavanagh and McCarthy, JJ., concur.

ORDERED that the decision is affirmed, without costs.

20090416

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