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Almanzar v. Commissioner of Labor

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


September 17, 2009

IN THE MATTER OF THE CLAIM OF PEDRO ALMANZAR, APPELLANT.
v.
COMMISSIONER OF LABOR, RESPONDENT.

MEMORANDUM AND ORDER

Calendar Date: August 3, 2009

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

Appeal from a decision of the Unemployment Insurance Appeal Board, filed December 15, 2008, which ruled that claimant was disqualified from receiving unemployment insurance benefits because his employment was terminated due to misconduct.

Claimant worked as an apartment building superintendent for a realty management company for a little over one year. He was terminated from his position after he left the building without explanation for an extended period of time and did not notify the management company. Claimant had been warned about such conduct on two previous occasions. The Unemployment Insurance Appeal Board ruled that he was disqualified from receiving unemployment insurance benefits because his employment was terminated due to misconduct. Claimant now appeals.

We affirm. "It is well established that a claimant's unauthorized absence from work, especially after repeated warnings, may constitute disqualifying misconduct" (Matter of Kryszak [Commissioner of Labor], 308 AD2d 645, 646 [2003] [citations omitted]; see Matter of Jones [Commissioner of Labor], 307 AD2d 582 [2003]). Here, the president of the management company stated that claimant left the premises for an entire day without informing him of his absence and that he learned of the situation from complaining tenants. In addition, he stated that claimant had engaged in the same conduct on two prior occasions at which time he was admonished that he was not to leave the building without notifying the management company. Although claimant denied leaving and maintained that he was in the building during the time period in question, this presented a credibility issue for the Board to resolve (see Matter of Conforti [Commssioner of Labor], 268 AD2d 663 [2000]). Given that substantial evidence supports the Board's decision, we decline to disturb it.

Mercure, J.P., Spain, Lahtinen, Stein and Garry, JJ., concur.

ORDERED that the decision is affirmed, without costs.

20090917

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