IN RE: the Claim of Jennifer D. MARIONE

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

IN RE: the Claim of Jennifer D. MARIONE, Appellant. Commissioner of Labor, Respondent.

Decided: January 26, 2006

Before:  PETERS, J.P., SPAIN, CARPINELLO, MUGGLIN and ROSE, JJ. Conway & Conway, New York City (Kevin P. Conway of counsel), for appellant. Eliot Spitzer, Attorney General, New York City (Linda D. Joseph of counsel), for respondent.

Appeal from a decision of the Unemployment Insurance Appeal Board, filed May 19, 2005, which ruled that claimant was disqualified from receiving unemployment insurance benefits because her employment was terminated due to misconduct.

Claimant worked as a reinsurance supervisor from September 2001 until July 2004 and was responsible for maintaining the time records of employees within her department.   She was terminated after her employer discovered an inaccuracy on her time sheet which indicated that she was present at work during a five-day period when she was in fact on vacation.   The Unemployment Insurance Appeal Board denied her claim for unemployment insurance benefits on the ground that she was terminated for misconduct.   This appeal ensued.

 We affirm.   It is well settled that an employee's falsification of time records may constitute disqualifying misconduct (see Matter of Thomas [Commissioner of Labor], 12 A.D.3d 810, 810-811, 784 N.Y.S.2d 250 [2004];  Matter of Cole [Cornell Coop. Ext. of Erie County-Commissioner of Labor], 2 A.D.3d 1242, 1243, 770 N.Y.S.2d 450 [2003] ).   In the present case, it is undisputed that claimant provided the employer with a time sheet which falsely represented that she was present at work during a time when she was on vacation.   Claimant's assertion that the mistake was a mere clerical error she made without any intention of deceiving the employer presented a credibility issue for the Board to resolve (see Matter of Newkirk [Commissioner of Labor], 15 A.D.3d 827, 790 N.Y.S.2d 260 [2005] ).

ORDERED that the decision is affirmed, without costs.

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