IN RE: the Claim of Daniela JAVIER (2008)

Appeal from a decision of the Unemployment Insurance Appeal Board, filed September 12, 2006, which ruled that claimant was disqualified from receiving unemployment insurance benefits because her employment was terminated due to misconduct.

Claimant was discharged from her employment as a home healthcare worker after she tested positive for the use of cocaine following a drug test as part of her annual physical required by the employer.   Claimant was initially disqualified by the Department of Labor from receiving unemployment insurance benefits as a result of being terminated for misconduct.   An Administrative Law Judge subsequently overruled this determination and awarded claimant benefits.   Following a hearing after the employer applied to have the matter reopened, the Administrative Law Judge granted the application and sustained the original determination denying benefits.   This determination was affirmed on appeal by the Unemployment Insurance Appeal Board, prompting this appeal.

 We affirm.  “An employee's use of controlled substances which produces a positive result following a drug test has been held to constitute disqualifying misconduct” (Matter of Young [Commissioner of Labor], 28 A.D.3d 989, 989, 812 N.Y.S.2d 719 [2006] [citations omitted];  accord Matter of Yott [Commissioner of Labor], 44 A.D.3d 1211, 1211-1212, 844 N.Y.S.2d 160 [2007] ).   Here, contrary to claimant's contention, testimony of two representatives from the testing laboratory established that there was a proper chain of custody of her urine sample, which, along with the positive test result, provide substantial evidence to support the Board's decision (see Matter of Langley [Commissioner of Labor], 12 A.D.3d 753, 753, 783 N.Y.S.2d 730 [2004];  Matter of Rizza [Commissioner of Labor], 288 A.D.2d 795, 795, 733 N.Y.S.2d 308 [2001] ).   Moreover, claimant's conflicting version of the testing procedures, including contentions that the technician who testified at the hearing was not the technician who took her sample and the sample container was not sealed and labeled properly, presented a credibility issue for the Board to resolve (see Matter of Casey [Commissioner of Labor], 37 A.D.3d 964, 964-965, 829 N.Y.S.2d 750 [2007];  Matter of Torres [Commissioner of Labor], 32 A.D.3d 1093, 1093, 821 N.Y.S.2d 670 [2006], lv. denied 8 N.Y.3d 811, 834 N.Y.S.2d 720, 866 N.E.2d 1049 [2007] ).

ORDERED that the decision is affirmed, without costs.

CARPINELLO, J.

CARDONA, P.J., LAHTINEN, MALONE and KAVANAGH, JJ., concur.