IN RE: the Claim of Ryan VAN BEEK

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

IN RE: the Claim of Ryan VAN BEEK, Appellant. Commissioner of Labor, Respondent.

Decided: August 10, 2006

Before:  CARDONA, P.J., MERCURE, SPAIN, LAHTINEN and KANE, JJ. Ryan Van Beek, Cold Spring, appellant pro se. Eliot Spitzer, Attorney General, New York City (Dawn A. Foshee of counsel), for respondent.

Appeal from a decision of the Unemployment Insurance Appeal Board, filed December 14, 2005, which ruled that claimant was disqualified from receiving unemployment insurance benefits because his employment was terminated due to misconduct.

 Claimant was employed as a service and repair technician for a scientific equipment distributor until he was fired on May 11, 2004 for failing to report to work on time.   Substantial evidence supports the decision of the Unemployment Insurance Appeal Board ruling that claimant lost his job due to disqualifying misconduct.   The record establishes that claimant received verbal warnings regarding his tardiness and was aware that his employment could be terminated if he was not on time for work.   The employer testified that claimant was continually late for work and was ultimately discharged on May 11, 2004 for not arriving to work on time.   Inasmuch as “[c]ontinued lateness, despite prior warnings, can constitute disqualifying misconduct” (Matter of Rush [Commissioner of Labor], 10 A.D.3d 798, 799, 781 N.Y.S.2d 817 [2004];  see Matter of Dintino [Commissioner of Labor], 21 A.D.3d 1151, 1151-1152, 800 N.Y.S.2d 788 [2005];  Matter of Chrysler [Commissioner of Labor], 9 A.D.3d 728, 728, 779 N.Y.S.2d 832 [2004] ), we find no reason to disturb the Board's decision.   Although claimant denied being late for work on May 11, 2004, this created a credibility issue for the Board to resolve (see Matter of Mills [Commissioner of Labor], 7 A.D.3d 845, 776 N.Y.S.2d 916 [2004];  Matter of Wayne [Commissioner of Labor], 261 A.D.2d 768, 769, 689 N.Y.S.2d 780 [1999] ).   Claimant's remaining contentions have been reviewed and found to be without merit.

ORDERED that the decision is affirmed, without costs.

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