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Park v. Stanford New York

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


February 4, 2010

IN THE MATTER OF THE CLAIM OF JAY Y. PARK, APPELLANT.
v.
STANFORD NEW YORK, LLC, RESPONDENT.
COMMISSIONER OF LABOR, RESPONDENT.

Appeal from a decision of the Unemployment Insurance Appeal Board, filed March 13, 2009, which ruled that claimant was disqualified from receiving unemployment insurance benefits because his employment was terminated due to misconduct.

MEMORANDUM AND ORDER

Calendar Date: December 17, 2009

Before: Peters, J.P., Rose, Malone Jr., Stein and Garry, JJ.

Substantial evidence supports the decision of the Unemployment Insurance Appeal Board, which reversed a decision of an Administrative Law Judge and ruled that claimant was disqualified from receiving unemployment insurance benefits because he was terminated from his position as a hotel front-desk clerk for misconduct (see Matter of Carter [New York City Dept. of Citywide Admin. Servs. -- Commissioner of Labor], 65 AD3d 1441, 1441 [2009]; Matter of Goodridge [Commissioner of Labor], 65 AD3d 1415, 1416 [2009]). Claimant's manager testified that he informed all front-desk employees that Internet service installed at the front desk was for guest-related services only and not for the personal use of the employees, and posted a memo to that effect on the bulletin board. Following a complaint from a co-worker concerning claimant's Internet use, the manager conducted an investigation and determined that claimant was accessing pornographic Web sites during his shift and terminated his employment. Claimant denied being told about the employer's restrictions regarding Internet use, although he admitted to accessing the Web sites, claiming that he was only doing so to prepare himself in the event that a guest inquired about accessing pornography. It is noted that "it is within the exclusive province of the Board to resolve such 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 [2008]; accord Matter of Rogers [Beena 1 Corp. -- Commissioner of Labor], 47 AD3d 1178, 1178-1179 [2008]). Accordingly, the Board's determination will not be disturbed.

Peters, J.P., Rose, Malone Jr., Stein and Garry, JJ., concur.

ORDERED that the decision is affirmed, without costs.

20100204

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