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Khan v. Commissioner of Labor

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


July 22, 2010

IN THE MATTER OF THE CLAIM OF NAVEED A. KHAN, APPELLANT.
v.
COMMISSIONER OF LABOR, RESPONDENT.

MEMORANDUM AND ORDER

Calendar Date: June 9, 2010

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

Appeal from a decision of the Unemployment Insurance Appeal Board, filed August 3, 2009, which ruled that claimant was disqualified from receiving unemployment insurance benefits because he lost his employment due to misconduct.

Claimant was an appliance sales specialist for the employer for 51/2 years before he was discharged in October 2008 for failing to adhere to the work schedule. Ultimately, the Unemployment Insurance Appeal Board found that claimant was ineligible to receive unemployment insurance benefits because he lost his employment due to misconduct, prompting this appeal.

Whether a claimant has engaged in disqualifying misconduct is a question of fact to be determined by the Board and its decision will not be disturbed where it is supported by substantial evidence (see Matter of Heppehamer [Commissioner of Labor], 67 AD3d 1283 [2009]; Matter of Hilton [Commissioner of Labor], 67 AD3d 1220, 1220 [2009]). Here, the record demonstrates that, during the month of October 2008, claimant was late on 10 of the 13 days he was scheduled to work. Previously, claimant had been advised in writing at least four times that his deviation from the work schedule was problematic. He testified that he was, indeed, late on the days in question and attributed his tardiness to traffic. Inasmuch as continued tardiness following prior warnings may constitute misconduct resulting in disqualification from receiving unemployment insurance benefits, we find the Board's decision to be supported by substantial evidence (see Matter of Hilton [Commissioner of Labor], 67 AD3d at 1220; Matter of Bianco [Commissioner of Labor], 53 AD3d 1002, 1003 [2008], lv denied 11 NY3d 711 [2008]).

Claimant's procedural contentions have been examined and found to be unpreserved or lacking in merit.

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

ORDERED that the decision is affirmed, without costs.

20100722

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