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In the Matter of the Claim of v. Knickerbocker Club

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


February 3, 2011

IN THE MATTER OF THE CLAIM OF JOSE L. JIMENEZ, RESPONDENT.
v.
KNICKERBOCKER CLUB, INC.,
APPELLANT. COMMISSIONER OF LABOR, RESPONDENT.

Appeal from a decision of the Unemployment Insurance Appeal Board, filed February 18, 2010, which ruled that claimant was entitled to receive unemployment insurance benefits.

Decided and Entered: February 3, 2011

MEMORANDUM AND ORDER

Calendar Date: December 16, 2010

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

Claimant, a dishwasher, was discharged after allegedly being disrespectful toward the employer's general manager. An Administrative Law Judge denied claimant's subsequent application for unemployment insurance benefits on the ground that he had lost his employment due to misconduct. The Unemployment Insurance Appeal Board reversed and found that claimant's actions did not constitute misconduct, and the employer now appeals.

Whether a claimant lost his or her employment through disqualifying misconduct presents a factual issue for the Board, and its resolution thereof will not be disturbed if supported by substantial evidence (see Matter of Ponce [Commissioner of Labor], 75 AD3d 1041, 1041 [2010]; Matter of Kuryla [Finger Lakes Community Coll.-Commissioner of Labor], 45 AD3d 1129, 1130 [2007]). Here, claimant sought to speak to the general manager after learning that his brother, who also worked for the employer, had been recently laid off. Claimant testified that the incident consisted of his asking to speak with the general manager, who responded by telling claimant that he did not want to talk and leaving the area. While the general manager's account of the incident differed, the Board was free to credit claimant's testimony, even if its decision to do so ran contrary to the Administrative Law Judge's conclusions (see Matter of Park [Stanford New York, LLC-Commissioner of Labor], 70 AD3d 1097, 1098 [2010]). As such, substantial evidence supports the Board's determination that claimant's behavior fell short of disqualifying misconduct (see Matter of Kuryla [Finger Lakes Community Coll.-Commissioner of Labor], 45 AD3d at 1130; Matter of Nunziata [Putnam County Natl. Bank of Carmel-Commissioner of Labor], 295 AD2d 667, 668 [2002]).

We have considered the employer's remaining argument and find it to be without merit.

Cardona, P.J., Peters, Rose, Stein and Garry, JJ., concur.

ORDERED that the decision is affirmed, without costs.

ENTER:

Robert D. Mayberger Clerk of the Court

20110203

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