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In the Matter of the Claim of

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


November 29, 2012

IN THE MATTER OF THE CLAIM OF DONNA J. CULVER, RESPONDENT. JEFFREY FEINBERG ET AL.,
APPELLANTS. COMMISSIONER OF LABOR, RESPONDENT.

Appeal from a decision of the Unemployment Insurance Appeal Board, filed August 31, 2011, which ruled that claimant was entitled to receive unemployment insurance benefits.

MEMORANDUM AND ORDER

Calendar Date: October 29, 2012

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

Claimant worked as a housekeeper at a residential apartment complex for nine years. After receiving information from two maintenance workers that claimant was using her computer to play video games during working hours, her supervisor terminated her employment. Claimant's application for unemployment insurance benefits was initially denied on the ground that she was terminated for misconduct. Following a hearing, an Administrative Law Judge upheld this determination. The Unemployment Insurance Appeal Board, however, reversed and ruled that claimant was entitled to receive benefits. The employer appeals.

We affirm. The question of whether a claimant has engaged in disqualifying misconduct is a factual one for the Board to resolve and not every discharge for cause rises to the necessary level of misconduct (see Matter of Samuels [Rubin--Commissioner of Labor], 95 AD3d 1566, 1566-1567 [2012]; Matter of Reilly [Transitional Servs. for N.Y. Inc.--Commissioner of Labor], 76 AD3d 738, 739 [2010]). Here, the Board chose to credit the testimony of claimant that she was not playing video games during non-break working hours over the contrary and in-part equivocal testimony of the employer's witnesses. As it is the exclusive province of the Board to decide credibility issues of this nature, substantial evidence supports the decision of the Board, which was not bound by the contrary conclusion reached by the Administrative Law Judge (see Matter of Samuels [Rubin--Commissioner of Labor], 95 AD3d at 1567; Matter of Zaydman [Roman Roytberg, Inc., P.C.--Commissioner of Labor], 87 AD3d 1192, 1193 [2011]; Matter of David [Commissioner of Labor], 193 AD2d 995, 996 [1993], lv denied 82 NY2d 663 [1994], cert denied 513 US 1117 [1995]). We have considered the employer's remaining contentions and find them either unpreserved for our review or lacking in merit.

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

ORDERED that the decision is affirmed, without costs.

ENTER:

Robert D. Mayberger Clerk of the Court

20121129

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