Matter of Frank W. Oku v Commissioner of Labor

Matter of Oku (Commissioner of Labor) 2003 NY Slip Op 18132 [1 AD3d 684] November 6, 2003 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 28, 2004

In the Matter of the Claim of Frank W. Oku, Appellant. Commissioner of Labor, Respondent.

— Appeal from a decision of the Unemployment Insurance Appeal Board, filed May 1, 2002, which ruled that claimant was disqualified from receiving unemployment insurance benefits because he voluntarily left his employment without good cause.

Claimant, a security guard, was to be reassigned after the client requested that he be removed. Claimant was given a counseling memorandum regarding allegations that he was sleeping on the job. Although he was told to wait to speak to the scheduling manager for a new assignment, claimant left after a period of time and did not return. Significantly, claimant had already applied for unemployment insurance benefits. The employer's subsequent attempts to contact claimant in order to reassign him to a new location went unanswered. Inasmuch as the record establishes that continuing work was available, substantial evidence supports the decision of the Unemployment Insurance Appeal Board that claimant left his employment without good cause (see Matter of Hayes [Commissioner of Labor], 296 AD2d 762 [2002]; Matter of Corns [Commissioner of Labor], 272 AD2d 711 [2000]). Any conflict in the hearing testimony presented a credibility issue for the Board to resolve (see Matter of Cranston [Commissioner of Labor], 294 AD2d 694 [2002]).

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