IN RE: the Claim of Michael G. BOX

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

IN RE: the Claim of Michael G. BOX, Appellant. Commissioner of Labor, Respondent.

Decided: April 24, 2008

Before:  MERCURE, J.P., SPAIN, ROSE, KANE and STEIN, JJ. Michael G. Box, New York City, appellant pro se.

Appeal from a decision of the Unemployment Insurance Appeal Board, filed May 2, 2007, 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.

 Substantial evidence supports the decision of the Unemployment Insurance Appeal Board ruling that claimant, a flat bed tow truck driver, was discharged from his employment due to disqualifying misconduct.  “An employee's failure to comply with an employer's reasonable request may constitute insubordination rising to the level of disqualifying misconduct” (Matter of Guagliardo [Commissioner of Labor], 27 A.D.3d 866, 867, 810 N.Y.S.2d 557 [2006] [citations omitted];  see Matter of Peterson [Commissioner of Labor], 32 A.D.3d 610, 819 N.Y.S.2d 353 [2006] ).   There is no dispute that claimant refused the employer's request to respond to a service call.   To the extent that claimant contends that responding to the call would have required him to exceed legal limits regulating the number of hours a commercial motor vehicle driver may be on duty, claimant could not estimate how long that particular tow would have taken him, and the employer's representative testified that responding to the call would not have put claimant in jeopardy of exceeding the relevant limits.   Inasmuch as the employer's request was reasonable under the circumstances and claimant failed to demonstrate a compelling reason for refusing to comply, we discern no basis upon which to disturb the Board's decision (see Matter of Guagliardo [Commissioner of Labor], 27 A.D.3d at 867, 810 N.Y.S.2d 557).

ORDERED that the decision is affirmed, without costs.

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