In re the Claim of Mills

May 6, 2004
Versions:7 A.D.3d 845
776 N.Y.S.2d 916
2004 N.Y. App. Div. LEXIS 6531

Appeal from a decision of the Unemployment Insurance Appeal Board, filed December 24, 2002, which ruled that claimant was disqualified from receiving unemployment insurance benefits because his employment was terminated due to misconduct.

Claimant was discharged from his employment as a truck driver after it was discovered that, despite being advised that such conduct was not acceptable, he routinely took extended breaks. Inasmuch as “[r]efusal to obey an employer’s reasonable rules and continued lateness after sufficient warnings can constitute misconduct barring receipt of unemployment insurance benefits” (Matter of Reichert /Losco Group—Commissioner of Labor], 256 AD2d 709, 710 [1998]; see Matter ofTucek [Commissioner of Labor], 254 AD2d 667, 668 [1998]), substantial evidence supports the decision of the Unemployment Insurance Appeal Board ruling that claimant’s employment was terminated due to disqualifying misconduct. Claimant’s assertion that his extended breaks were “reluctantly acceptable” to the employer presented a credibility issue for the Board to resolve (see Matter of Boyle [Sweeney], 247 AD2d 809, 809 [1998]; Matter of Perkov [Sweeney], 231 AD2d 780, 780 [1996]). Claimant’s remaining contentions have been reviewed and found to be without merit.

Mercure, J.P., Peters, Rose, Lahtinen and Kane, JJ., concur. Ordered that the decision is affirmed, without costs.