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In the Matter of the Claim of Michael B. Diggle

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


December 13, 2012

IN THE MATTER OF THE CLAIM OF MICHAEL B. DIGGLE, RESPONDENT. TOWN OF BABYLON,
APPELLANT. COMMISSIONER OF LABOR, RESPONDENT.

Appeal from a decision of the Unemployment Insurance Appeal Board, filed July 11, 2011, which ruled that claimant was entitled to receive unemployment insurance benefits.

MEMORANDUM AND ORDER

Calendar Date: October 29, 2012

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

Claimant was suspended without pay for 30 days from his employment as a bay constable with the Town of Babylon. Upon claimant's application for unemployment insurance benefits, the Department of Labor repeatedly asked the employer to provide specific information regarding the reason for claimant's separation from employment. After the employer failed to provide the requested information, claimant was awarded benefits. The employer thereafter requested a hearing at which it sought to introduce testimony regarding the specific circumstances of claimant's separation from employment. Although the testimony was placed on the record, the Administrative Law Judge found that the employer did not establish good cause for its failure to respond to the Department's requests for information and, therefore, did not consider the proffered information in reaching his conclusion that claimant was entitled to benefits. The Unemployment Insurance Appeal Board affirmed, and the employer now appeals.

Initially, inasmuch as the employer did not establish good cause for its failure to respond to the Department's requests for information, we find that the Board did not err in failing to consider the employer's proffered evidence regarding the reason for claimant's separation from employment (see 12 NYCRR 461.1 [b]; 461.4 [d]; 472.12; Matter of American Home Improvement Prods. [Commissioner of Labor], 261 AD2d 760, 762 [1999]). Turning to the employer's argument that the determination was not supported by substantial evidence, the record reflects that claimant stated that he was suspended as the result of taking coffee and bathroom breaks that were permitted under his employment contract. The employer's response asserts simply that claimant was suspended for "disciplinary reasons." Thus, we find that the Board's conclusion that claimant's separation was based upon conduct that did not rise to the level of disqualifying misconduct is supported by substantial evidence (see Matter of Irons [TLC W., LLC-Commissioner of Labor], 79 AD3d 1511, 1512 [2010]; Matter of Kuryla [Finger Lakes Community Coll.-Commissioner of Labor], 45 AD3d 1129, 1130-1131 [2007]).

The employer's remaining contentions have been considered and found to be without merit.

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

ORDERED that the decision is affirmed, without costs.

ENTER:

Robert D. Mayberger Clerk of the Court

20121213

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