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Rivers v. Carbone Auto Group

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


October 7, 2010

IN THE MATTER OF THE CLAIM OF JAMES C. RIVERS, APPELLANT.
v.
CARBONE AUTO GROUP ET AL., RESPONDENTS.
COMMISSIONER OF LABOR, RESPONDENT.

MEMORANDUM AND ORDER

Calendar Date: August 2, 2010

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

Appeal from a decision of the Unemployment Insurance Appeal Board, filed June 17, 2009, which ruled that claimant was disqualified from receiving unemployment insurance benefits because his employment was terminated due to misconduct.

Claimant was employed as an automotive technician for 15 years. When claimant's son, who was in the armed services in Iraq, was scheduled to return home, claimant requested time off from the employer to spend with his son. The employer approved one day off, but denied claimant's request for additional time. Nevertheless, claimant failed to report for work or contact the employer about his absence for two additional days, after which his employment was terminated. Ultimately, the Unemployment Insurance Appeal Board ruled that claimant was disqualified from receiving unemployment insurance benefits because his employment was terminated due to misconduct. Claimant now appeals.

An unauthorized absence from work has been held to constitute misconduct which can disqualify a claimant from receiving unemployment insurance benefits (see Matter of Roe [Commissioner of Labor], 62 AD3d 1105, 1106 [2009]; Matter of Britter [Commissioner of Labor], 54 AD3d 461 [2008]). Inasmuch as claimant admitted that he had requested leave and been denied, however compelling his reason for the request, we are constrained to find that the Board's decision is supported by substantial evidence (see Matter of Roe [Commissioner of Labor], 62 AD3d at 1106). We have examined claimant's other contentions and find them to be unpersuasive.

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

ORDERED that the decision is affirmed, without costs.

20101007

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