IN RE: the Claim of Carmen J. DAVILA

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

IN RE: the Claim of Carmen J. DAVILA, Appellant. Commissioner of Labor, Respondent.

Decided: December 30, 2004

Before:  MERCURE, J.P., CREW III, PETERS, SPAIN and ROSE, JJ. Carmen J. Davila, New York City, appellant pro se.

Appeal from a decision of the Unemployment Insurance Appeal Board, filed April 30, 2004, which ruled that claimant was disqualified from receiving unemployment insurance benefits because her employment was terminated due to misconduct.

On May 22, 2000, claimant was hired as the manager of a retail clothing store.   On October 16, 2003, after she failed to deposit receipts from the store in the bank over a four-day period, she was terminated from her position.   Claimant had been previously counseled about her performance, including the necessity of complying with the employer's policy regarding making bank deposits on a daily basis, and was warned that her discharge could result if her performance did not improve.   Following her discharge, she applied for unemployment insurance benefits.   Her application was eventually denied by the Unemployment Insurance Appeal Board on the ground that she was disqualified from receiving benefits because her employment was terminated due to misconduct.   She now appeals.

 We affirm.   An employee's failure to comply with an employer's reasonable and established policies and procedures concerning the handling of cash and related matters may constitute disqualifying misconduct (see Matter of Larsen [Commissioner of Labor], 288 A.D.2d 544, 544, 731 N.Y.S.2d 800 [2001];  Matter of Rooney [Sweeney], 236 A.D.2d 775, 654 N.Y.S.2d 51 [1997] ), especially if such conduct continues despite prior warnings (see Matter of Rivera [Commissioner of Labor], 262 A.D.2d 696, 690 N.Y.S.2d 780 [1999], lv. dismissed 94 N.Y.2d 939, 708 N.Y.S.2d 354, 729 N.E.2d 1153 [2000] ).   Here, claimant admitted that although she repeatedly instructed an assistant manager to make the bank deposits over the course of several days, she permitted the deposits to accumulate until they were discovered by the employer's loss prevention manager during an audit.   Claimant's assertion that she did not know that the store policy required bank deposits to be made on a daily basis presented an issue of credibility for the Board to resolve (see Matter of Messer [Key Bank Natl. Assn.-Commissioner of Labor], 1 A.D.3d 840, 841, 767 N.Y.S.2d 296 [2003];  Matter of Naraine [Sweeney], 245 A.D.2d 932, 933, 666 N.Y.S.2d 844 [1997] ).

ORDERED that the decision is affirmed, without costs.

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