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In the Matter of the Claim of Tsilya Zaydman v. Roman Roytberg

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


September 15, 2011

IN THE MATTER OF THE CLAIM OF TSILYA ZAYDMAN, APPELLANT.
v.
ROMAN ROYTBERG, INC., P.C.,
RESPONDENT.
COMMISSIONER OF LABOR, RESPONDENT.

Appeal from a decision of the Unemployment Insurance Appeal Board, filed April 7, 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: July 27, 2011

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

Claimant worked as a receptionist in the employer's dental office for approximately 31/2 months. She was discharged from her position when the employer's business advisor discovered that she had removed $500 in petty cash from the office without permission. She was initially denied unemployment insurance benefits but, following a hearing, an Administrative Law Judge later determined that she was entitled to receive benefits. The Unemployment Insurance Appeal Board, however, reversed this decision and concluded that claimant was disqualified from receiving benefits because she was terminated for misconduct. Claimant appeals.

We affirm. An employee's apparent dishonesty, including the theft of property, has been held to constitute misconduct disqualifying him or her from receiving unemployment insurance benefits (see Matter of Johnson [Commissioner of Labor], 83 AD3d 1314, 1314-1315 [2011]; Matter of Lumbrazo [Environmental Remediation Servs., Inc.--Commissioner of Labor], 79 AD3d 1500, 1500 [2010]). Here, substantial evidence, consisting of testimony of the employer's witnesses, including two patients who had appointments and were present at the time the business advisor confronted claimant about the missing cash, supports the Board's finding that claimant engaged in disqualifying misconduct by taking money from the employer without authorization. Claimant's denial of any wrongdoing and claim that she was terminated because she had knowledge of alleged improper conduct by the employer presented a credibility issue for the Board to resolve (see Matter of Andreani [HPP Rinx, Inc.--Commissioner of Labor], 44 AD3d 1210, 1211 [2007]). The fact that the Board reached a different conclusion than the Administrative Law Judge does not compel a contrary result as the Board is the ultimate arbiter of factual issues and credibility (see Matter of Park [Stanford New York, LLC--Commissioner of Labor], 70 AD3d 1097, 1098 [2010]; Matter of Horsford [Commissioner of Labor], 64 AD3d 1062, 1063 [2009]). Therefore, we find no reason to disturb the Board's decision.

Spain, J.P., Lahtinen, Kavanagh, McCarthy and Egan Jr., JJ., concur.

ORDERED that the decision is affirmed, without costs.

ENTER: Robert D. Mayberger Clerk of the Court

20110915

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