IN RE: the Claim of Nehemiah ROLLE

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

IN RE: the Claim of Nehemiah ROLLE, Appellant. Nassau County Civil Service Commission, Respondent. Commissioner of Labor, Respondent.

Decided: February 25, 1999

Before:  MIKOLL, J.P., CREW III, PETERS, CARPINELLO and GRAFFEO, JJ. Nehemiah Rolle, Freeport, appellant in person. Owen B. Walsh, County Attorney (Gerald R. Podlesak of counsel), Mineola, for Nassau County Civil Service Commission, respondent.

Appeal from a decision of the Unemployment Insurance Appeal Board, filed November 25, 1997, which ruled that claimant was disqualified from receiving unemployment insurance benefits because his employment was terminated due to misconduct.

After claimant's employment as a custodial worker was terminated, he was initially found to be eligible to receive unemployment insurance benefits by the local unemployment office and an Administrative Law Judge (hereinafter ALJ).   The employer appealed this decision to the Unemployment Insurance Appeal Board.   In the interim, however, an arbitration hearing was held which resulted in a finding that claimant engaged in misconduct warranting his discharge.   Accordingly, the Board rescinded the ALJ's decision and remitted the matter for a new hearing in light of the arbitrator's decision.   The ALJ ultimately gave collateral estoppel effect to the arbitrator's factual findings and found that claimant was disqualified from receiving unemployment insurance benefits, a decision upheld by the Board.

 We affirm.   Substantial evidence supports the Board's finding that claimant engaged in disqualifying misconduct.   The factual findings of the arbitrator were properly given collateral estoppel effect in view of the fact that claimant was given a full and fair opportunity to litigate the misconduct issue at the arbitration hearing (see, Matter of Harewood [Commissioner of Labor], 253 A.D.2d 934, 677 N.Y.S.2d 811).   Contrary to claimant's argument, his rights were not violated due to the fact that an earlier decision by an ALJ in his favor was rendered prior to the arbitrator's decision since “the final factfinder in the administrative process is the Board, not the ALJ” (Matter of Brauner [Patchogue Nursing Ctr.-Hartnett], 162 A.D.2d 838, 840-841, 557 N.Y.S.2d 741, lv. dismissed 76 N.Y.2d 1018, 565 N.Y.S.2d 767, 566 N.E.2d 1172;  see, Matter of Edie [New York City Tr. Auth.-Commissioner of Labor], 253 A.D.2d 952, 953, 677 N.Y.S.2d 821, 822).

ORDERED that the decision is affirmed, without costs.

MEMORANDUM DECISION.

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