IN RE: the Claim of Raymond GONZALEZ

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

IN RE: the Claim of Raymond GONZALEZ, Appellant. John E. Sweeney, as Commissioner of Labor, Respondent.

Decided: February 19, 1998

Before CARDONA, P.J., and YESAWICH, PETERS, SPAIN and CARPINELLO, JJ. Raymond Gonzalez, Jamaica, appellant in person. Dennis C. Vacco, Attorney General (Bessie Bazile, of counsel), New York City, for respondent.

Appeal from a decision of the Unemployment Insurance Appeal Board, filed June 24, 1996, which ruled that claimant was disqualified from receiving unemployment insurance benefits because his employment was terminated due to misconduct.

Claimant was employed as a lavatory attendant for a race track until he was discharged after two supervisors observed him sleeping during work hours.   The Unemployment Insurance Appeal Board ruled that claimant was disqualified from receiving benefits because he was terminated due to misconduct.   Upon our review of the record, we find substantial evidence exists to support the Board's decision and, accordingly, affirm.   Although claimant stated that he was aware of the employer's policy prohibiting employees from sleeping during work hours, he vehemently denied that he had been sleeping.   Claimant's testimony, which conflicted with that of one of the supervisors who had observed him, presented a credibility issue for the Board to resolve (see, Matter of Andrews [Hartnett], 176 A.D.2d 429, 574 N.Y.S.2d 421).   A violation of an employer's policy of which the employee is aware has been held to constitute misconduct (see, Matter of Dimassimo [Eastman Kodak Co.-Sweeney], 231 A.D.2d 777, 646 N.Y.S.2d 731;  Matter of Andrews [Hartnett], supra ).   Claimant's remaining arguments have been examined and found to be without merit.

ORDERED that the decision is affirmed, without costs.


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