IN RE: the Claim of Brian C. EUSTACE

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

IN RE: the Claim of Brian C. EUSTACE, Respondent. Suffolk County Sheriff's Office, Appellant. Commissioner of Labor, Respondent.

Decided: June 26, 2008

Before:  MERCURE, J.P., SPAIN, LAHTINEN, MALONE JR. and STEIN, JJ. Mark S. Swartz, New City, for appellant. Leeds, Morelli & Brown, P.C., Carle Place (Gregory A. Tsonis of counsel), for Brian C. Eustace, respondent.

Appeal from a decision of the Unemployment Insurance Appeal Board, filed April 10, 2007, which ruled that claimant was eligible to receive unemployment insurance benefits.

The sole issue presented on this appeal by the employer is whether the Unemployment Insurance Appeal Board, in determining that claimant had not lost his employment due to misconduct, improperly issued a decision contrary to prior arbitration findings.   We conclude that it did not.   Although the Board was “bound by the arbitrator's factual findings regarding claimant's conduct ․, [it was] free to make ․ independent additional factual findings and form [its] own independent conclusion as to whether such conduct constituted ‘misconduct’ for purposes of unemployment insurance” (Matter of Guimarales [New York City Bd. of Educ.-Commissioner of Labor], 68 N.Y.2d 989, 991, 510 N.Y.S.2d 558, 503 N.E.2d 113 [1986] ).   That being the case, we find that the Board's decision was rationally based (see id.) and, as such, decline to disturb it.

ORDERED that the decision is affirmed, without costs.

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