IN RE: the Claim of Keith A. COHEN

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

IN RE: the Claim of Keith A. COHEN, Appellant. Commissioner of Labor, Respondent.

Decided: November 25, 1998

Before CARDONA, P.J., MERCURE, YESAWICH, SPAIN and CARPINELLO, JJ. Keith A. Cohen, New York City, appellant in person.

Appeal from a decision of the Unemployment Insurance Appeal Board, filed October 20, 1997, 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.

 Claimant was employed as a warehouse worker for a wine and spirits wholesaler when he was terminated for failing to perform a work assignment.   Claimant testified that he forgot about the assignment after he became involved in a lengthy conversation with a co-worker about video games.   Several weeks earlier, claimant had been fired for failing to carry out an assignment and walking away from his supervisor when questioned;  however, claimant pleaded for another chance that time and was reinstated.   Employee behavior that is detrimental to the employer's interest and persists despite repeated warnings may be construed as disqualifying misconduct (see, Matter of Depena [Commissioner of Labor], 249 A.D.2d 611, 670 N.Y.S.2d 630).   Upon review of the record, we find substantial evidence to support the Unemployment Insurance Appeal Board's ruling that claimant lost his employment under disqualifying circumstances.

ORDERED that the decision is affirmed, without costs.

MEMORANDUM DECISION.

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