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Young v. Commissioner of Labor

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


May 13, 2010

IN THE MATTER OF THE CLAIM OF HEATHER L. YOUNG, APPELLANT.
v.
COMMISSIONER OF LABOR, RESPONDENT.

MEMORANDUM AND ORDER

Calendar Date: April 7, 2010

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

Appeal from a decision of the Unemployment Insurance Appeal Board, filed December 24, 2008, which ruled that claimant was disqualified from receiving unemployment insurance benefits because her employment was terminated due to misconduct.

Substantial evidence supports the Unemployment Insurance Appeal Board's determination that claimant, a certified nurse's aide, was discharged from her employment due to misconduct. An employee's unauthorized departure from work can constitute disqualifying misconduct, particularly where it comes in the wake of prior warnings about that behavior (see Matter of Pedigo [Townhouse Apts. at Lido Beach -- Commissioner of Labor], 57 AD3d 1188 [2008]; Matter of White [Commissioner of Labor], 48 AD3d 854, 855 [2008]). Here, the employer produced evidence that claimant had left work without approval on several occasions, resulting in prior discipline, and did so again for a substantial period of time on the date in question. Claimant's conflicting testimony presented a credibility issue for the Board to resolve (see Matter of White [Commissioner of Labor], 48 AD3d at 855).

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

ORDERED that the decision is affirmed, without costs.

20100513

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