IN RE: the Claim of Dorothy M. FOURBY

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

IN RE: the Claim of Dorothy M. FOURBY, Appellant. John E. Sweeney, as Commissioner of Labor, Respondent.

Decided: February 19, 1998

Before MIKOLL, J.P., and MERCURE, WHITE, YESAWICH and SPAIN, JJ. Dorothy Fourby, Buffalo, in person. Dennis C. Vacco, Attorney General (Norman Uris, of counsel), New York City, for respondent.

Appeal from a decision of the Unemployment Insurance Appeal Board, filed April 28, 1997, which, upon reconsideration, inter alia, adhered to its prior decision ruling that claimant was disqualified from receiving unemployment insurance benefits because her employment was terminated due to misconduct.

Claimant was discharged from her employment as an attendant at a retirement home after she served a resident a tray of food in a disrespectful and discourteous manner.   Claimant was disqualified from receiving unemployment insurance benefits because her employment was terminated due to misconduct.   Inasmuch as such conduct was adverse to the employer's interest (see, Matter of Mallard [Sweeney], 245 A.D.2d 932, 666 N.Y.S.2d 858) and was contrary to its rules (see, Matter of Blaine [Sweeney], 244 A.D.2d 753, 664 N.Y.S.2d 395), we conclude that substantial evidence supports the Unemployment Insurance Appeal Board's decision that claimant was guilty of disqualifying misconduct.   To the extent that claimant contends that she should not be assessed a recoverable overpayment, we note that any benefits received are recoverable under the circumstances presented here (see, Labor Law § 597[4] ), despite the employer's agreement not to contest claimant's receipt of such benefits (see, Matter of Caplan [Sweeney], 238 A.D.2d 660, 655 N.Y.S.2d 676).   In any event, in response to claimant's request, the Board has remitted for a hearing on the issue of whether claimant received an overpayment of benefits.

ORDERED that the decision is affirmed, without costs.

MEMORANDUM DECISION.

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