IN RE: the Claim of Erika SANTA

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

IN RE: the Claim of Erika SANTA, Respondent. Eastman Kodak Company, Appellant. John E. Sweeney, as Commissioner of Labor, Respondent.

Decided: February 27, 1997

Before MIKOLL, J.P., and MERCURE, CASEY, SPAIN and CARPINELLO, JJ. Dale E. Skivington,Eastman Kodak Company, Rochester, for appellant. McNamee, Lochner, Titus & Williams (Francis J. Smith, of counsel), Albany, for Erika Santa, respondent.

Appeal from a decision of the Unemployment Insurance Appeal Board, filed March 29, 1996, which ruled that claimant was entitled to receive unemployment insurance benefits.

Claimant was discharged from her position with the Eastman Kodak Company when she failed to report for work without giving 24 hours' notice.   The employer required such advance notice from all employees who, like claimant, had been placed on final warning status due to previous unexcused absences.   The Unemployment Insurance Appeal Board ruled that while claimant had been fired for cause, she had not been proven guilty of disqualifying misconduct.   We affirm.   Testimony adduced at the hearing disclosed that claimant did not report for work for the night shift in question because she had become emotionally overwrought after being falsely informed by a co-worker that she had been fired.   Claimant's ensuing distress caused her to lose sleep and to take various medications to alleviate her anxiety and required her to stay home because she felt that she would not be able to adequately perform her job duties.

 An employee's violation of an employer's rule may bring about his or her discharge while falling short of constituting disqualifying misconduct (see, Matter of Hulse [Levine], 41 N.Y.2d 813, 814, 393 N.Y.S.2d 386, 361 N.E.2d 1034).   Whether a claimant's actions have risen to the level of disqualification is a factual question for resolution by the Board (see, Matter of Mayrant [New York City Dept. of Sanitation-Hudacs], 190 A.D.2d 920, 593 N.Y.S.2d 598;  Matter of Warnock [St. Bernard's School-Hudacs], 183 A.D.2d 1036, 1037, 583 N.Y.S.2d 614).   We conclude that the Board's ruling that claimant was not disqualified from receiving unemployment insurance benefits was supported by substantial evidence.

ORDERED that the decision is affirmed, without costs.

MEMORANDUM DECISION.

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