State of New York Supreme Court, Appellate Division Third Judicial Department
February 2, 2012
IN THE MATTER OF THE CLAIM OF DANIEL R. PENCOLA, APPELLANT. COMMISSIONER OF LABOR,
Appeal from a decision of the Unemployment Insurance Appeal Board, filed January 25, 2011, which ruled that claimant was disqualified from receiving unemployment insurance benefits because he voluntarily left his employment without good cause.
MEMORANDUM AND ORDER
Calendar Date: December 12, 2011
Before: Lahtinen, J.P., Spain, Kavanagh, McCarthy and
Egan Jr., JJ.
Claimant was a truck driver for the employer for approximately eight months when he failed to report for an assignment and, thereafter, failed to respond to telephone calls from the employer. The Unemployment Insurance Appeal Board ruled that claimant was disqualified from receiving unemployment insurance benefits because he voluntarily left his employment without good cause. Claimant appeals.
We affirm. Whether a claimant had good cause to leave employment is a factual determination within the province of the Board and its decision will not be disturbed when supported by substantial evidence (see Matter of Mkhitaryan [Commissioner of Labor], 86 AD3d 888, 888 ; Matter of Heller [Paragon Motors of Woodside, Inc.-Commissioner of Labor], 83 AD3d 1229, 1229 ). Here, the employer testified that claimant called in several hours before his scheduled shift and, upon reporting that he had transportation problems, claimant was offered a ride to the job site, but declined. Thereafter, claimant did not report to work and failed to return calls that evening or in the days to follow. Claimant's contentions that he was never offered a ride and that he was told that if he did not show for work he would be fired raised credibility questions to be resolved by the Board (see Matter of Zaydman [Roman Roytberg, Inc., P.C.--Commissioner of Labor], 87 AD3d 1192, 1193 ; Matter of Morar [JSB Props., LLC-Commissioner of Labor], 86 AD3d 887, 888 ). Under these circumstances, substantial evidence supports the Board's determination that claimant voluntarily left his employment without good cause (see Matter of Cruse [Commissioner of Labor], 20 AD3d 841, 842 ; Matter of Richards [Commissioner of Labor], 303 AD2d 821, 822 ).
Lahtinen, J.P., Spain, Kavanagh, McCarthy and Egan Jr., JJ., concur.
ORDERED that the decision is affirmed, without costs.
Robert D. Mayberger
Clerk of the Court
© 1992-2012 VersusLaw Inc.