IN RE: the Claim of Linda K. PRAIRIE

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

IN RE: the Claim of Linda K. PRAIRIE, Appellant. Commissioner of Labor, Respondent.

Decided: October 28, 1999

Before:  CARDONA, P.J., CREW III, YESAWICH JR., CARPINELLO and MUGGLIN, JJ. Diane Webster-Brady, Plattsburgh, for appellant. Eliot Spitzer, Attorney-General (Bessie Bazile of counsel), New York City, for respondent.

Appeal from a decision of the Unemployment Insurance Appeal Board, filed July 23, 1998, which ruled that claimant was disqualified from receiving unemployment insurance benefits because her employment was terminated due to misconduct.

Discharged from her position as a certified nurse's aide for a health care facility, claimant's application for unemployment insurance benefits was denied by the Unemployment Insurance Appeal Board on the ground that she was terminated for misconduct following allegations that she yelled at an elderly resident.   Notably, claimant previously had been warned and suspended as a result of complaints by residents regarding allegedly improper behavior.   We reject claimant's contention that the Board's decision is not supported by substantial evidence.  “It is well settled that employee behavior that is detrimental to an employer's interest and persists despite * * * warnings can be construed as disqualifying misconduct * * * ” (Matter of Seely [Reconstruction Home-Commissioner of Labor], --- A.D.2d ----, ----, 692 N.Y.S.2d 828, 829 [citation omitted];  see, Matter of Creary [Commissioner of Labor], 254 A.D.2d 644, 679 N.Y.S.2d 187).   Although claimant denied mistreating the resident, her testimony merely presented a credibility issue, which the Board was free to resolve against her (see generally, Matter of Dennis [Westgate Nursing Home-Sweeney], 233 A.D.2d 730, 650 N.Y.S.2d 1009, lv. denied 89 N.Y.2d 811, 657 N.Y.S.2d 403, 679 N.E.2d 642).   Finally, we are unpersuaded by claimant's argument that the Board was without authority to reopen a prior decision on its own motion and remit for a further hearing (see, Labor Law § 534).

ORDERED that the decision is affirmed, without costs.


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