Appellate Division of the Supreme Court of New York, 2003

In re the Claim of McCullough

Appellate Division of the Supreme Court of New York · Decided July 17, 2003

307 A.D.2d 567; 762 N.Y.S.2d 161; 2003 N.Y. App. Div. LEXIS 8177

Cases that cite this one

4 later published cases cite this decision.

In re the Claim of Peters (Appellate Division of the Supreme Court of New York 2010)
In re the Claim of Paul-Marseille (Appellate Division of the Supreme Court of New York 2004)
In re the Claim of Chrysler (Appellate Division of the Supreme Court of New York 2004)
In re the Claim of Kurtz (Appellate Division of the Supreme Court of New York 2004)

This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.

Opinion of the Court

Appeal from a decision of the Unemployment Insurance Appeal Board, filed November 8, 2002, which ruled that claimant was disqualified from receiving unemployment insurance benefits because her employment was terminated due to misconduct.

Claimant, an accounts clerk, was terminated from her posi*568tion after she failed to return to work following a previously approved day off. The Unemployment Insurance Appeal Board ruled that claimant had lost her employment under disqualifying circumstances. We affirm. It is well settled that an employee’s failure to return to work after the expiration of an authorized leave of absence may constitute disqualifying misconduct (see Matter of Kanber [Commissioner of Labor], 288 AD2d 739 [2001]; Matter of Nikkhah [Commissioner of Labor], 264 AD2d 896, 897 [1999]). In this matter, substantial evidence in the form of the hearing testimony given by the witnesses for the employer supports the Board’s finding that claimant took an unauthorized vacation day, despite warnings that such conduct would not be tolerated, rendering her guilty of disqualifying misconduct. Claimant’s exculpatory testimony presented issues of credibility for resolution by the Board (see Matter of Mahon [Commissioner of Labor], 288 AD2d 740 [2001], lv denied 97 NY2d 612 [2002]).

Mercure, J.P., Crew III, Mugglin, Rose and Kane, JJ., concur. Ordered that the decision is affirmed, without costs.

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