Matter of Solomon (Bremner Food Group--Commissioner of Labor)

Matter of Solomon (Bremner Food Group\MCommissioner of Labor) 2010 NY Slip Op 08426 [78 AD3d 1415] November 18, 2010 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 19, 2011

In the Matter of the Claim of Mario A. Solomon, Respondent. Bremner Food Group, Appellant; Commissioner of Labor, Respondent.

—[*1] Harter, Secrest & Emery, L.L.P., Rochester (Sara H. Marangola of counsel), for appellant.

James W. Cooper, Warrensburg, for Mario A. Solomon, respondent.

Appeal from a decision of the Unemployment Insurance Appeal Board, filed July 24, 2009, which ruled that claimant was entitled to receive unemployment insurance benefits.

Claimant was terminated from his employment as a dough mixer after approximately 4½ years, when it was alleged that he falsified personnel records by having listed children on his medical benefit forms for whom he had no legal responsibility. Following a hearing, an administrative law judge upheld the initial determination finding that claimant was ineligible to receive unemployment insurance benefits because he had lost his employment through misconduct. However, the Unemployment Insurance Appeal Board reversed that decision and determined that claimant's actions did not rise to the level of misconduct. The employer appeals and we now affirm.

Whether an employee has engaged in misconduct is a factual determination to be made by the Board, and its decision will not be disturbed where supported by substantial evidence (see Matter of Bush [St. Luke's Cornwall Hosp.—Commissioner of Labor], 60 AD3d 1179, 1179 [2009]; Matter of Kuryla [Finger Lakes Community Coll.—Commissioner of Labor], 45 AD3d 1129, 1130 [2007]). Here, the Board credited claimant's testimony that a member of the employer's human resources department assisted him with filling out the benefit forms and that [*2]he had disclosed that two of the children listed on the forms were not legally his, but he had been raising them. Notably, representatives of the employer testified that the handwriting on the form was not claimant's and that he had never been provided with a definition of eligible dependents. As it is the province of the Board to resolve credibility issues, we find that substantial evidence supports its determination and we decline to disturb it (see Matter of Reilly [Transitional Servs. for N.Y., Inc.—Commissioner of Labor], 76 AD3d 738, 739 [2010]; Matter of Bush [St. Luke's Cornwall Hosp.—Commissioner of Labor], 60 AD3d at 1180).

Mercure, J.P., Lahtinen, Kavanagh, McCarthy and Egan Jr., JJ., concur. Ordered that the decision is affirmed, without costs.