IN RE: the Claim of Chafik HASSANE (1997)

Appeal from a decision of the Unemployment Insurance Appeal Board, filed December 19, 1995, which, upon reconsideration, adhered to its prior decision ruling that claimant was disqualified from receiving unemployment insurance benefits because his employment was terminated due to misconduct.

Upon reviewing the restaurant sales receipts for the evening of June 7, 1995, it was discovered that claimant, a waiter, had been double-tipped by four separate customers.   Claimant was discharged from his employment for failing to follow the employer's policy of informing customers that a gratuity had already been added to their bills and to bring it to their attention if they had left a double tip.   The evidence presented established that an incident of double tipping was highly unusual and that the gratuity added by the four customers was almost equal to the gratuity which had already been calculated into their bills.   Although primarily circumstantial, substantial evidence supports the Unemployment Insurance Appeal Board's assessment of the credibility of the witnesses and the inferences drawn from the evidence presented (see, Matter of Di Maria v. Ross, 52 N.Y.2d 771, 772, 436 N.Y.S.2d 616, 417 N.E.2d 1004;  Matter of Padilla [Sephardic Home for the Aged-Roberts], 113 A.D.2d 997, 493 N.Y.S.2d 671).

I respectfully dissent.   Although the employer testified that four incidents of double tipping in a single evening is highly unusual, there simply is no proof in the record that claimant indeed violated the employer's stated policy regarding gratuities.   No testimony was received from the affected customers, nor did the employer testify that he received any complaints from these individuals regarding the gratuities added to their respective bills.   While the Unemployment Insurance Appeal Board was free to reject claimant's testimony in this regard, the Board's conclusion that claimant failed to notify the customers in question that a gratuity already had been added to their bills is not, in my view, supported by the record.

ORDERED that the decision is affirmed, without costs.

MEMORANDUM DECISION.

MIKOLL, J.P., and MERCURE, WHITE and CASEY, JJ., concur.