Thursday, March 22, 2012

NEW YORK UNEMPLOYMENT INSURANCE HEARINGS - CREDIBILITY ISSUES

Here is a recent interesting case - illustrating the issues confronting claimants and the credibility of evidence:

"IN THE MATTER OF THE CLAIM OF BRIMAGE v. COMMISSIONER OF LABOR, 512718 (3d Dept 3-15-2012)
2012 NY Slip Op 01851
In the Matter of the Claim of NICOLE BRIMAGE, Appellant. v. COMMISSIONER OF
LABOR, Respondent.
512718
Appellate Division of the Supreme Court of New York, Third Department

Calendar Date: January 23, 2012 Decided on March 15, 2012

Appeal from a Decision of the Unemployment Insurance Appeal Board, Filed
October 25, 2010, which, Upon Reconsideration, Ruled, Among Other Things,
that Claimant was Disqualified from Receiving Unemployment Insurance
Benefits because she lost her Employment due to Misconduct.

Karen Cacace, The Legal Aid Society, New York City, for appellant.

Eric T. Schneiderman, Attorney General, New York City (Gary Leibowitz of
counsel), for respondent.

Before: PETERS, J.P., LAHTINEN, MALONE Jr., STEIN and GARRY, JJ.
Page 1

MEMORANDUM AND ORDER

Claimant was discharged from her employment at a nursing home for
allegedly falsely representing on her employment application that she had
never been convicted of a crime. Specifically, a fingerprint background
check by the employer with the Department of Health indicated that claimant
had previously been convicted of a misdemeanor in California in 1992. At the
ensuing hearing, claimant denied ever being charged or arrested while she
lived in California and asserted that she was not the person named in the
background check. Thereafter, the Unemployment Insurance Appeal Board
disqualified claimant from receiving unemployment insurance benefits on the
ground that she lost her employment due to misconduct; however, the Board
later remitted the matter so that further proof could be taken regarding
claimant's allegation of mistaken identity, as well as the issue of whether
the alleged charge against her was considered a crime or infraction in
California. Following the remittal, the Board, among other things, rescinded
its prior decision but nonetheless concluded that claimant lost her
employment due to disqualifying misconduct. This appeal ensued.

Substantial evidence supports the Board's determination that claimant is
disqualified from receiving unemployment insurance benefits because she lost
her job for entering false information on her employment application (see
Matter of Miller [Albany Hous. Auth. — Commissioner of Labor], 50 AD3d 1432,
1433 [2008]). Claimant's assertion that she was never charged or convicted of anything in California created a credibility issue that the Board had the authority to resolve against her (see Matter of Zaydman [Roman Roytberg, Inc., P.C. —
Commissioner of Labor], 87 AD3d 1192, 1193 [2011]). As for the issue
concerning the nature of the 1992 conviction, evidence exists to support the
Board's ruling that the conviction was for a crime. The fact that there may
also be proof that could support a contrary result is not dispositive (see
Matter of Johnson [Commissioner of Labor], 83 AD3d 1314, 1314 [2011]).

Peters, J.P., Lahtinen, Malone Jr., Stein and Garry, JJ., concur.

ORDERED that the decision is affirmed, without costs."

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