Matter of Kelly

Appellate Division of the Supreme Court of New York, Third DepartmentJul 1, 1993
195 A.D.2d 674 (N.Y. App. Div. 1993)
195 A.D.2d 674599 N.Y.S.2d 339

July 1, 1993

Appeal from the Unemployment Insurance Appeal Board.


Claimant was discharged on December 17, 1990 due to the fact that he was late to work on December 14, 1990 after being warned on several occasions that he needed to report to work on time. The employer testified that claimant was constantly late for work and that he had had several discussions with claimant on this issue. Although he admitted that there was no set starting time when claimant was first employed, the employer testified that during one meeting in November 1990 claimant was specifically informed that he had to report to work by 8:00 A.M. The employer further testified that at that time claimant acknowledged this change in policy. Claimant denied that the employer had often warned him about his tardiness. To the extent the testimony was conflicting, a question of credibility was presented for resolution by the Unemployment Insurance Appeal Board; the Board was free to accept the employer's version and reject that offered by claimant (see, Matter of Nunes [Roberts], 98 A.D.2d 934). Under the circumstances, and in light of the fact that excessive tardiness can constitute misconduct warranting a disqualification from receiving unemployment insurance benefits, substantial evidence exists to support the decision of the Board (see, Matter of Dowling [Hartnett], 168 A.D.2d 727; Matter of Malliet [Levine], 52 A.D.2d 1026; Matter of Grosso [Levine], 52 A.D.2d 964). Claimant's remaining contentions have been considered and found to be lacking in merit.

Mikoll, J.P., Yesawich Jr., Levine and Crew III, JJ., concur. Ordered that the decision is affirmed, without costs.