IN RE: the Claim of Alberto MARTINEZ (2001)

Appeal from a decision of the Unemployment Insurance Appeal Board, filed August 4, 2000, which denied claimant's application for reconsideration of a prior decision ruling, inter alia, that claimant was disqualified from receiving unemployment insurance benefits because his employment was terminated due to misconduct.

Claimant was employed as a delivery truck driver when his employment was terminated in February 1999 based on his supervisor's allegations that he had overreported the number of stops that he had made on his delivery route.   The Unemployment Insurance Appeal Board subsequently ruled that claimant was disqualified from receiving unemployment insurance benefits because he lost his employment under disqualifying circumstances.   Upon reconsideration, the Board adhered to so much of its previous decision as had found claimant guilty of disqualifying misconduct;  however, it rescinded a prior assessment of a recoverable overpayment, finding that claimant did not make a false statement in order to obtain benefits.   Claimant then filed this application to reopen the matter, contending that substantial evidence does not support the Board's finding of disqualifying misconduct.

 Whether to grant an application to reopen lies within the discretion of the Board and, absent a showing that its discretion has been abused, the Board's decision will not be disturbed (see, Matter of Gbolo [Commissioner of Labor], 272 A.D.2d 775, 708 N.Y.S.2d 649;  Matter of Aures [Buffalo Bd. of Educ.-Commissioner of Labor], 272 A.D.2d 664, 665, 708 N.Y.S.2d 347).   We find no abuse of discretion here.   Substantial evidence in the form of the testimony given on behalf of the employer supports the Board's ruling that claimant's failure to comply with the employer's record-keeping procedures and policies rose to the level of disqualifying misconduct (see, Matter of Jones [Commissioner of Labor], 285 A.D.2d 801, 728 N.Y.S.2d 272).   While claimant presented evidence to the contrary, we defer to the Board's resolution of this credibility issue (see, Matter of Marshall [Commissioner of Labor], 284 A.D.2d 775, 726 N.Y.S.2d 879, lv. denied 97 N.Y.2d 602, 735 N.Y.S.2d 491, 760 N.E.2d 1287).

ORDERED that the decision is affirmed, without costs.