IN RE: the Claim of Kim I. MANLEY

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

IN RE: the Claim of Kim I. MANLEY, Appellant. Commissioner of Labor, Respondent.

Decided: September 23, 2004

Before:  CARDONA, P.J., MERCURE, CARPINELLO, LAHTINEN and KANE, JJ. Kim I. Manley, Highland Falls, appellant pro se. Eliot Spitzer, Attorney General, New York City (Bessie Bazile of counsel), for respondent.

Appeal from a decision of the Unemployment Insurance Appeal Board, filed April 18, 2003, which ruled that claimant was disqualified from receiving unemployment insurance benefits because his employment was terminated due to misconduct.

Substantial evidence supports the decision of the Unemployment Insurance Appeal Board which ruled that claimant, an assembly line repair mechanic, was disqualified from receiving unemployment insurance benefits because he lost his employment due to misconduct.   The record establishes that claimant was discharged from his employment after he failed to timely return from his break because he lost track of time while working on his car.   Although claimant had no prior warnings regarding such conduct, the record establishes that he was a probationary employee and was aware of the time that he received for his breaks.   Under the circumstances presented here, and inasmuch as claimant failed to comply with the employer's workplace policy regarding breaks, we find no reason to disturb the Board's decision (see Matter of Soto [Commissioner of Labor], 262 A.D.2d 693, 690 N.Y.S.2d 789 [1999];  Matter of Tucek [Commissioner of Labor], 254 A.D.2d 667, 679 N.Y.S.2d 195 [1998];  see also Matter of Yager [Commissioner of Labor], 304 A.D.2d 970, 757 N.Y.S.2d 634 [2003];  Matter of Heath [Commissioner of Labor], 304 A.D.2d 944, 757 N.Y.S.2d 154 [2003] ).

ORDERED that the decision is affirmed, without costs.

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