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Marcus v. Commissioner of Labor

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


July 30, 2009

IN THE MATTER OF THE CLAIM OF DAVID E. MARCUS, APPELLANT,
v.
COMMISSIONER OF LABOR, RESPONDENT.

MEMORANDUM AND ORDER

Calendar Date: June 10, 2009

Before: Mercure, J.P., Rose, Lahtinen, Malone Jr. and McCarthy, JJ.

Appeal from a decision of the Unemployment Insurance Appeal Board, filed March 18, 2008, which ruled that claimant was disqualified from receiving unemployment insurance benefits because his employment was terminated due to misconduct.

Inasmuch as an employee's falsification of documents and/or business records has been held to constitute disqualifying misconduct, substantial evidence supports the Unemployment Insurance Appeal Board's finding that claimant, a restaurant manager, was discharged from his employment due to misconduct (see Matter of McFarlane [Commissioner of Labor], 51 AD3d 1317, 1318 [2008], lv denied 11 NY3d 710 [2008]; Matter of Rosa [Commissioner of Labor], 45 AD3d 952, 952 [2007]). The record reflects that claimant was discharged for, among other things, forging the initials of a colleague on a money deposit slip so as to indicate the colleague's review of, and implicit agreement with, the amount of funds deposited at the close of the business day. The testimony offered by the employer's representatives, including the statement of claimant's colleague, is sufficient to sustain the Board's finding that claimant improperly signed his colleague's name. To the extent that claimant disputes the employer's version of the incident leading to his discharge and testified that his colleague was aware of the forgery and consented to it, this presented a credibility issue for the Board to resolve (see Matter of Roe [Commissioner of Labor], 62 AD3d 1105, 1106 [2009]; Matter of Auguste [Commissioner of Labor], 61 AD3d 1242, 1243 [2009]).

Mercure, J.P., Rose, Lahtinen, Malone Jr. and McCarthy, JJ., concur.

ORDERED that the decision is affirmed, without costs.

20090730

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