Wednesday, March 21, 2012

NEW YORK UNEMPLOYMENT INSURANCE HEARINGS - CREDIBILITY ISSUES

According to the Appellate Division, Third Department, issues of credibility are left to the Appeal Board as set forth in this recent case:

"2012 NY Slip Op 00694

IN THE MATTER OF THE CLAIM OF ALEASHA S. BARTON, Appellant. v. COMMISSIONER
OF LABOR, Respondent.

Appellate Division of the Supreme Court of New York, Third Department

Calendar Date December 12, 2011 Decided and Entered February 2, 2012

Aleasha S. Barton, New York City, appellant pro se.

Eric T. Schneiderman, Attorney General, New York City (Bessie Bazile of
counsel), for respondent.
Page 1

MEMORANDUM AND ORDER

Claimant worked for the employer as a correction officer for approximately
three years when she came under investigation in June 2010 for alleged
improprieties. Although claimant was told by the warden of the facility not
to discuss the investigation, she did so with fellow correction officers
and, when questioned about it, stated that she did not discuss the matter.
Claimant was thereafter discharged and her application for unemployment
insurance benefits was denied. The Unemployment Insurance Appeal Board
ultimately affirmed the denial of benefits and claimant now appeals.

We affirm. The dishonesty of an employee has been held to constitute
misconduct disqualifying him or her from receiving unemployment insurance
benefits, particularly where the employment at issue requires a high
standard of honesty and integrity (see Matter of Zaydman [Roman Roytberg,
Inc., P.C. — Commissioner of Labor], 87 AD3d 1192, 1193 [2011]; Matter of
Singleton [Commissioner of Labor], 60 AD3d 1230, 1231 [2009]). Here,
substantial evidence supports the Board's determination that, after being
instructed not to discuss the investigation with anyone, claimant indeed
discussed it with her fellow employees and then was dishonest with
investigators when questioned about whether she had done so. Claimant's
assertions that she did not understand that she was not to speak with other
officers and that she eventually admitted that she had spoken with them raised credibility questions for the Board to resolve (see Matter of Zaydman [Roman Roytberg, Inc., P.C. — Commissioner of Labor], 87 AD3d at 1193; Matter of Morar [JSB Props., LLC — Commissioner of Labor], 86 AD3d 887, 888 [2011]).

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

ORDERED that the decision is affirmed, without costs.

512555

Appeal from a decision of the Unemployment Insurance Appeal Board, filed
January 27, 2011, which ruled that claimant was disqualified from receiving
unemployment insurance benefits because her employment was terminated due to
misconduct.

Before: PETERS, J.P., LAHTINEN, KAVANAGH, McCARTHY and EGAN Jr., JJ.

Copyright © 2012 CCH Incorporated or its affiliates"

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