IN RE: the Claim of Gordon J. WALLACE (1997)

Appeal from a decision of the Unemployment Insurance Appeal Board, filed October 4, 1996, which ruled that claimant was entitled to receive unemployment insurance benefits.

Claimant worked for the employer as a vending service route worker from February 3, 1996 until May 6, 1996.   He was discharged from his position for poor work performance.   Claimant was initially disqualified from receiving unemployment insurance benefits on the basis that he was terminated for misconduct.   Following a hearing, an Administrative Law Judge overruled the initial determination and found that claimant was entitled to receive benefits.   This decision was affirmed by the Unemployment Insurance Appeal Board.   The employer appeals.

 We affirm.   The issue of “[w]hether a claimant's actions have risen to the level of disqualification is a factual question for resolution by the Board” (Matter of Santa [Eastman Kodak Co.-Sweeney], 236 A.D.2d 776, 654 N.Y.S.2d 52, 53;  see, Matter of Jones [White Arrow Serv. Stations-Sweeney], 232 A.D.2d 802, 649 N.Y.S.2d 344).   The employer's representatives testified that, despite numerous warnings, claimant repeatedly stocked the vending machines with expired products, allowed many of the machines to remain empty and failed to keep the machines and products clean, prompting the employer's customers to lodge complaints.   When claimant was confronted with these problems, claimant responded that he was doing the best job that he could.   Claimant testified that he was not provided the freshest products with which to stock the machines or with adequate support to service all of the machines for which he was responsible.   Inasmuch as claimant's testimony negates the inference of intentional or willful misconduct, we find that substantial evidence supports the Board's decision (see, e.g., Matter of Hook [Manson News Distrib.-Sweeney], 233 A.D.2d 731, 650 N.Y.S.2d 51;  Matter of Beer [Pisem-Sweeney], 233 A.D.2d 742, 650 N.Y.S.2d 357).

ORDERED that the decision is affirmed, without costs.

MEMORANDUM DECISION.