IN RE: the Claim of Antonio BRUNO

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

IN RE: the Claim of Antonio BRUNO, Appellant. John E. Sweeney, as Commissioner of Labor, Respondent.

Decided: February 20, 1997

Before CARDONA, P.J., and MIKOLL, CREW, WHITE and PETERS, JJ. Antonio Bruno, New York City, appellant in person. Dennis C. Vacco, Attorney General (Steven S. Park, of counsel), New York City, for respondent.

Appeal from a decision of the Unemployment Insurance Appeal Board, filed June 10, 1996, which ruled that claimant was disqualified from receiving unemployment insurance benefits because his employment was terminated due to misconduct.

 Claimant was employed as a bus driver by the New York City Transit Authority.   He was discharged from his employment in December 1991, after his annual physical examination yielded test results that were positive for the presence of cocaine.   Claimant had previously tested positive for the presence of cocaine in April 1990.   Pursuant to the terms of a collective bargaining agreement between claimant's union and the Transit Authority, a hearing was held before an impartial arbitrator who ultimately found against claimant, upholding the penalty of dismissal.   The Unemployment Insurance Appeal Board thereafter ruled that claimant was disqualified from receiving benefits on the ground that he lost his employment due to misconduct.   We affirm.   An employee's use of cocaine represents a willful disregard of the standards of conduct an employer has the right to expect (see, Matter of Punter [Ross], 43 N.Y.2d 743, 744, 401 N.Y.S.2d 789, 372 N.E.2d 576) and may constitute disqualifying misconduct (see, Matter of Atkinson [B.C.C. Assocs.-Hudacs], 185 A.D.2d 415, 416, 586 N.Y.S.2d 319).   Substantial evidence supports the Board's decision.

ORDERED that the decision is affirmed, without costs.

MEMORANDUM DECISION.

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