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Horsford v. Commissioner of Labor

State of New York Supreme Court, Appellate Division Third Judicial Department


July 23, 2009

IN THE MATTER OF THE CLAIM OF SHEILA A. HORSFORD, APPELLANT.
v.
COMMISSIONER OF LABOR, RESPONDENT.

MEMORANDUM AND ORDER

Calendar Date: June 10, 2009

Before: Spain, J.P., Lahtinen, Malone Jr., Stein and Garry, JJ.

Appeal from a decision of the Unemployment Insurance Appeal Board, filed April 7, 2008, which ruled that claimant was disqualified from receiving unemployment insurance benefits because her employment was terminated due to misconduct.

Claimant worked as a caterer in a delicatessen for approximately eight months. She was discharged by her employer after allegedly directing profanity at him in the presence of other employees. Although her application for unemployment insurance benefits was initially denied, an Administrative Law Judge credited claimant's testimony over that of her employer and awarded her benefits following a hearing. Upon review, the Unemployment Insurance Appeal Board reversed and ruled that claimant was disqualified from receiving unemployment insurance benefits because she lost her employment due to misconduct. This appeal ensued.

We affirm. "[I]t is within the exclusive province of the Board to resolve... credibility issues and draw inferences from the evidence presented, even if its conclusions are contrary to those reached by the Administrative Law Judge" (Matter of Radu [Commissioner of Labor], 13 AD3d 701, 702 [2004]). Here, although claimant denied directing vulgar statements at her employer, both the employer and a former co-worker testified that she did so and then left the premises just prior to the end of her shift. Accordingly, inasmuch as the use of profanities and insubordinate behavior constitutes disqualifying misconduct, we find no basis upon which to disturb the Board's decision (see Matter of Kemp [Commissioner of Labor], 25 AD3d 1054, 1054 [2006]).

Spain, J.P., Lahtinen, Malone Jr., Stein and Garry, JJ., concur.

ORDERED that the decision is affirmed, without costs.

20090723

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