Sunday, February 7, 2010


It is important to note that making a proper record for an appeal of an adverse determination is of the utmost importance. Normally, the process is this: Claimant is denied benefits from the Department of Labor, Claimant requests a hearing before an administrative law judge and is still denied, Claimant then appeals to the Appeals Board and is still denied and then finally appeals to the Appellate Division, 3rd. Department. Most recently the standard of review was highlighted in MATTER CLAIM OF HEPPEHAMER v. COMMI. OF LABOR, [3d Dept 11-25-2009], 2009 NY Slip Op 08733, where the court noted that "(w)hether a claimant has lost employment through disqualifying misconduct is a factual determination to be made by the Unemployment Insurance Appeal Board and its decision will not be disturbed if supported by substantial evidence (see Matter of Rey-Calderon [Commissioner of Labor],60 AD3d 1124, 1124 [2009]; Matter of Piervencenti [Crest/Good Mfg. Co., Inc. — Commissioner of Labor],39 AD3d 1108, 1108-1109 [2007])" and that "issue(s) of credibility are for the Board to resolve (see Matter of Auguste [Commissioner of Labor], 61 AD3d at 1243; Matter of Musac [Commissioner of Labor], 50 AD3d at 1428).

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