Berkeley v. Comm'r of Labor

• Decision Date: 19 April 2012
• Citation: 2012 N.Y. Slip Op. 02942,94 A.D.3d 1328,942 N.Y.S.2d 294
• Parties: In the Matter of Roberta A. BERKELEY, Appellant. v. COMMISSIONER OF LABOR, Respondent.
• Court: New York Supreme Court — Appellate Division

2012 N.Y. Slip Op. 02942
94 A.D.3d 1328
942 N.Y.S.2d 294

In the Matter of Roberta A. BERKELEY, Appellant.
v.
COMMISSIONER OF LABOR, Respondent.

Supreme Court, Appellate Division, Third Department, New York.

April 19, 2012.

[942 N.Y.S.2d 294]

Roberta A. Berkeley, New York City, appellant pro se.

Eric T. Schneiderman, Attorney General, New York City (Linda D. Joseph of counsel), for respondent.

Before: PETERS, P.J., SPAIN, KAVANAGH, McCARTHY and EGAN JR., JJ.

[94 A.D.3d 1328] Appeal from a decision of the Unemployment Insurance Appeal Board, filed August 5, 2011, which ruled, among other things, that claimant was disqualified from receiving unemployment insurance benefits because her employment was terminated due to misconduct.

Claimant worked as a housekeeper for a department store for approximately 3 1/2 years. She received a number of warnings concerning her frequent absences. After claimant failed to report to work for three consecutive days in July 2010 without authorization, her employment was terminated for excessive absenteeism. The Unemployment Insurance Appeal Board ruled that claimant was disqualified from receiving unemployment insurance benefits because her employment was terminated due to misconduct. She now appeals.

We affirm. We note that continued absenteeism, despite prior warnings, has been held to constitute misconduct disqualifying a claimant from receiving unemployment insurance benefits [94 A.D.3d 1329] ( see

[942 N.Y.S.2d 295]

Matter of Goodridge [Commissioner of Labor], 65 A.D.3d 1415, 1416, 885 N.Y.S.2d 544 [2009]; Matter of Cuillo [Commissioner of Labor], 37 A.D.3d 896, 897, 830 N.Y.S.2d 367 [2007] ). It is undisputed that claimant was absent without authorization numerous times prior to her discharge and was repeatedly warned about her continued absences. Claimant offered many different excuses for her failure to report to work during the time period in question but did not produce any medical proof at the hearing that she was unable to report due to health problems, which presented a credibility issue for the Board to resolve ( see Matter of Miller [Commissioner of Labor], 9 A.D.3d 567, 568, 779 N.Y.S.2d 284 [2004] ). In view of the foregoing, we find that substantial evidence supports the Board's decision and we decline to disturb it.

ORDERED that the decision is affirmed, without costs.