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In the Matter of the Claim of v. Commissioner of Labor

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


May 19, 2011

IN THE MATTER OF THE CLAIM OF
MICHELLE WASHINGTON,
APPELLANT.
v.
COMMISSIONER OF LABOR,
RESPONDENT.

Appeal from a decision of the Unemployment Insurance Appeal Board, filed January 15, 2010, which ruled that claimant was disqualified from receiving unemployment insurance benefits because her employment was terminated due to misconduct.

MEMORANDUM AND ORDER

Calendar Date: April 6, 2011

Before: Mercure, J.P., Spain, Lahtinen, Kavanagh and McCarthy, JJ.

Claimant worked as a part-time cleaner for the employer for approximately three years, until her employment was terminated in April 2009 when her supervisor discovered her exiting the cafeteria with a drink in her hand during a non-break period. Claimant applied for unemployment insurance benefits and, ultimately, the Unemployment Insurance Appeal Board denied benefits on the ground that she lost her employment through misconduct. Claimant now appeals.

We affirm. A knowing violation of an employer's established policies and procedures has been held to constitute disqualifying misconduct (see Matter of Garrett [Commissioner of Labor], 67 AD3d 1160, 1161 [2009]; Matter of Kridel [Commissioner of Labor], 54 AD3d 465, 466 [2008]). Here, claimant admitted at the hearing that she was found in an unauthorized area when she was not on break, and the record demonstrated that claimant had received three prior written warnings regarding similar behavior. Accordingly, we decline to disturb the Board's decision, inasmuch as it is supported by substantial evidence.

Mercure, J.P., Spain, Lahtinen, Kavanagh and McCarthy, JJ., concur.

ORDERED that the decision is affirmed, without costs.

ENTER: Robert D. Mayberger Clerk of the Court

20110519

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