Matter of Mykhaskiv (Commr. of Labor)

State of New York Supreme Court, Appellate Division Third Judicial Department Decided and Entered: June 30, 2016 521486 ________________________________

In the Matter of the Claim of OKSANA MYKHASKIV, Appellant.

WESTHAMPTON BEACH UNION FREE MEMORANDUM AND ORDER SCHOOL DISTRICT, Respondent.

COMMISSIONER OF LABOR, Respondent. ________________________________

Calendar Date: June 3, 2016 Before: Peters, P.J., Lahtinen, Egan Jr., Rose and Clark, JJ.

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Law Office of Steven Morelli, Garden City (Russell J. Platzek of counsel), for appellant.

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

__________ Clark, J.

Appeal from a decision of the Unemployment Insurance Appeal Board, filed October 10, 2014, which ruled that claimant was disqualified from receiving unemployment insurance benefits because her employment was terminated due to misconduct.

Claimant was employed as a custodian with a school district when several charges were preferred against her, including misconduct and neglect of duty stemming from, among other things, her failure to comply with her supervisor's directive to assist in cleaning an area assigned to another coworker who was absent

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from work. Following a disciplinary hearing held pursuant to Civil Service Law § 75, the Hearing Officer sustained, among other things, the charge that claimant engaged in misconduct upon a finding that claimant refused to comply with her supervisor's directive to clean a particular area. Based upon the Hearing Officer's findings of fact and recommendation, claimant was discharged from her employment for insubordinate behavior. Thereafter, the Unemployment Insurance Appeal Board denied claimant's subsequent application for unemployment insurance, finding that her employment was terminated due to disqualifying misconduct. Claimant appeals.

Contrary to claimant's contention, the record reflects that she had a full and fair opportunity to litigate the issue of her misconduct at the Civil Service Law § 75 hearing. Claimant was represented at the hearing by an attorney, had a representative from her union present and was afforded an opportunity to testify, present witnesses and cross-examine the employer's witnesses. Under these circumstances, we find that the Board properly gave collateral estoppel effect to the factual findings of the Hearing Officer (see Matter of Ranni [Ross], 58 NY2d 715, 717-718 [1982]; Matter of Intini [Commissioner of Labor], 123 AD3d 1347, 1348 [2014]; Matter of Guynup [County of Clinton–Commissioner of Labor], 106 AD3d 1357, 1358 [2013]). Furthermore, the record confirms that the Board made its own conclusions as to whether claimant's behavior constituted disqualifying misconduct for unemployment insurance purposes (see Matter of Guimarales [New York City Bd. of Educ.–Roberts], 68 NY2d 989, 991 [1986]; Matter of Hopton [Commissioner of Labor], 136 AD3d 1098, 1099 [2016]; Matter of Sona [Commissioner of Labor], 13 AD3d 799, 799 [2004]). To that end, given that insubordinate behavior has been held to constitute disqualifying misconduct, substantial evidence supports the Board's finding that claimant, who had previously been warned about complying with the employer's directives, was disqualified from receiving unemployment insurance benefits (see Matter of Morales [Commissioner of Labor], 70 AD3d 1271, 1272 [2010], lv denied 14 NY3d 711 [2010]; Matter of Agran [Commissioner of Labor], 54 AD3d 479, 480 [2008]; Matter of Sona [Commissioner of Labor], 13 AD3d at 800). Accordingly, the Board's decision will not be disturbed.

-3- 521486 Peters, P.J., Lahtinen, Egan Jr. and Rose, JJ., concur. ORDERED that the decision is affirmed, without costs.

ENTER:

Robert D. Mayberger Clerk of the Court