Matter of Argueta (Commissioner of Labor)

Matter of Argueta (Commissioner of Labor) 2015 NY Slip Op 08224 Decided on November 12, 2015 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: November 12, 2015
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[*1] AARON D. ARGUETA, Appellant. BARNEY'S NEW YORK, INC., Respondent.

and

COMMISSIONER OF LABOR, Respondent.

Calendar Date: September 22, 2015
Before: Garry, J.P., Rose, Devine and Clark, JJ.

DeLince Law, PLLC, New York City (J. Patrick DeLince of counsel), for appellant.

Proskauer Rose, LLP, New York City (Howard Z. Robbins of counsel), for Barney's New York, Inc., respondent.

Eric T. Schneiderman, Attorney General, New York City (Gary Leibowitz of counsel), for Commissioner of Labor, respondent.

MEMORANDUM AND ORDER

Appeal from a decision of the Unemployment Insurance Appeal Board, filed April 18, 2014, which ruled that claimant was disqualified from receiving unemployment insurance benefits because his employment was terminated due to misconduct.

Claimant was discharged from his employment as a store detective in the loss prevention department of a retail clothing store for taking unauthorized breaks and sleeping during his shift. The Unemployment Insurance Appeal Board found that claimant was disqualified from receiving unemployment insurance

benefits because he lost his employment due to disqualifying misconduct. Contrary to claimant's contention, the testimony at the hearing and the inferences to be drawn from the videotape evidence provide substantial evidence to support the Board's finding that claimant slept during his shift, which claimant was aware violated the employer's established policy (see Matter of Beydoun [Trump World Tower Condominium-Commissioner of Labor], 308 AD2d 625, 625 [2003]; Matter of De Maria [Commissioner of Labor], 276 AD2d 1010, 1010-1011 [2000]). Although claimant denied that he was sleeping, this presented a credibility issue for the Board to resolve (see Matter of Sanders [Rescue Mission Alliance Inc.-Commissioner of Labor], 106 AD3d 1311, 1312 [2013]; Matter of Jordan [Moschitto Trim & Jewelry Corp.-Commissioner of Labor], 296 AD2d 734, 734-735 [2002]). Claimant's remaining contentions have been reviewed [*2]and found to be unpersuasive.

Garry, J.P., Rose, Devine and Clark, JJ., concur.

ORDERED that the decision is affirmed, without costs.