IN RE: the Claim of Steven GEWIRTZ

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

IN RE: the Claim of Steven GEWIRTZ, Appellant. Commissioner of Labor, Respondent.

Decided: October 26, 2000

Before:  CREW III, J.P., PETERS, CARPINELLO, GRAFFEO and MUGGLIN, JJ. Steven Gewirtz, New York City, appellant in person. Eliot Spitzer, Attorney-General (Marjorie S. Leff of counsel), New York City, for respondent.

Appeal from a decision of the Unemployment Insurance Appeal Board, filed December 16, 1999, which ruled that claimant was disqualified from receiving unemployment insurance benefits because his employment was terminated due to misconduct.

 Claimant was discharged from his employment as a drug store pharmacist after an investigation revealed that he filled several hundred dollars worth of prescriptions for a store security guard without ringing them through the cash register, charging the co-payment or billing the security guard's insurance company.   Although claimant testified that he was unable to properly process the prescriptions because the insurance company's computer was not functioning, the employer's written procedures for dispensing prescriptions during computer downtime required that the pharmacist collect the customer's co-payment, process the transaction through the cash register and document the prescription for future billing of the customer's insurance company.   Substantial evidence supports the Unemployment Insurance Appeal Board's decision that claimant was disqualified from receiving unemployment insurance benefits because his employment was terminated due to misconduct.   An employee's repeated violation of the employer's established procedures may rise to the level of disqualifying misconduct (see, Matter of Hawkins [Commissioner of Labor], 254 A.D.2d 558, 559, 678 N.Y.S.2d 703;  Matter of Blaine [Sweeney], 244 A.D.2d 753, 664 N.Y.S.2d 395), especially where, as here, such conduct is detrimental to the employer's financial interest (see, Matter of Bilka [Hematology-Oncology Assocs. of Long Is.-Commissioner of Labor], 257 A.D.2d 880, 881, 684 N.Y.S.2d 74;  Matter of Sterling [Commissioner of Labor], 249 A.D.2d 674, 671 N.Y.S.2d 172).   Claimant's exculpatory explanation for his conduct created a credibility issue which the Board was free to resolve against him (see, Matter of Naraine [Sweeney], 245 A.D.2d 932, 933, 666 N.Y.S.2d 844;  Matter of Perkov [Sweeney], 231 A.D.2d 780, 647 N.Y.S.2d 48).

The remainder of claimant's contentions are either not preserved for appellate review or are lacking in merit.

ORDERED that the decision is affirmed, without costs.

MEMORANDUM DECISION.

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