IN RE: the Claim of Sophie ACKERMANN

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Supreme Court, Appellate Division, Third Department, New York.

IN RE: the Claim of Sophie ACKERMANN, Appellant. New York City Department of Citywide Administrative Services, Respondent. Commissioner of Labor, Respondent.

-- July 20, 2006

Before:  MERCURE, J.P., CREW III, PETERS, SPAIN and ROSE, JJ. Sophie Ackermann, New York City, appellant pro se. Michael A. Cardozo, Corporation Counsel, New York City (Ellen Ravitch of counsel), for New York City Department of Citywide Administrative Services, respondent. Eliot Spitzer, Attorney General, New York City (Dawn A. Foshee of counsel), for Commissioner of Labor, respondent.

Appeal from a decision of the Unemployment Insurance Appeal Board, filed March 21, 2005, which ruled that claimant was disqualified from receiving unemployment insurance benefits because her employment was terminated due to misconduct.

Claimant, a software support specialist in the information technology department of the Kings County District Attorney's office, was terminated after it was discovered that she had logged on to the e-mail accounts of three of her supervisors without their authorization.   Claimant denied ever accessing the e-mail accounts except when requested to do so.   Following several hearings, an Administrative Law Judge ultimately found that claimant's separation from employment was due to misconduct and denied her application for unemployment insurance benefits.   The Unemployment Insurance Appeal Board affirmed and claimant now appeals.

 An employee's apparent dishonesty or violation of the employer's policies which is counter to the employer's interests can constitute disqualifying misconduct (see Matter of Smith [Commissioner of Labor], 23 A.D.3d 973, 974, 804 N.Y.S.2d 462 [2005];  Matter of Pearlstein [Engstrand-Commissioner of Labor], 16 A.D.3d 947, 947-948, 792 N.Y.S.2d 226 [2005];  Matter of Alexander [Commissioner of Labor], 3 A.D.3d 827, 827, 771 N.Y.S.2d 259 [2004];  Matter of Burgess [Rapid Response Monitoring Servs.-Commissioner of Labor], 307 A.D.2d 581, 582, 762 N.Y.S.2d 310 [2003] ).   Our review of the record confirms that the Board's determination is supported by substantial evidence in the form of claimant's subsequent apology to her supervisor, printed screen shots admitted into evidence reflecting that claimant-identified by her user name-had logged on to her supervisors' e-mail accounts and testimony from her supervisors that they had not authorized her to access their accounts.   Claimant's testimony denying any wrongdoing presented a credibility issue for the Board to resolve (see Matter of Pearlstein [Engstrand-Commissioner of Labor], supra at 947-948, 792 N.Y.S.2d 226;  Matter of Alexander [Commissioner of Labor], supra at 827, 771 N.Y.S.2d 259).   Accordingly, we will not disturb the Board's determination.

ORDERED that the decision is affirmed, without costs.

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