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

IN RE: the Claim of ARNALDO RIVERA, Respondent.  BYRNE DAIRY, INC., Appellant. COMMISSIONER OF LABOR, Respondent.


Decided: April 24, 2014

Before:  Peters, P.J., Stein, McCarthy and Rose, JJ. Hancock & Estabrook, LLP, Syracuse (John T. McCann of counsel), for appellant. Cynthia Feathers, Glens Falls, for Arnaldo Rivera, respondent.


Calendar Date:  February 25, 2014

Appeal from a decision of the Unemployment Insurance Appeal Board, filed November 2, 2012, which ruled that claimant was entitled to receive unemployment insurance benefits.

After the employer received complaints from certain customers regarding stores not being merchandised properly, claimant, who was the merchandiser assigned to these stores and had been previously warned regarding his job performance, was terminated.   The Unemployment Insurance Appeal Board ultimately ruled that claimant's unsatisfactory job performance did not constitute disqualifying misconduct and found him eligible for benefits.   The employer appeals.

We affirm.  “Not every discharge for cause rises to the level of misconduct disqualifying a claimant from receiving unemployment insurance benefits” (Matter of Donovan [Bay Orthopedic & Rehabilitation Supply Co.—Commissioner of Labor],

96 AD3d 1312, 1312 [2012] [citations omitted] ).   Here, the Board chose to credit claimant's explanations regarding his job performance that support a conclusion that he was not “deliberately failing to carry out his job duties.”   Inasmuch as “[t]he Board is the final arbiter of factual matters involving questions of credibility ․, we cannot conclude that the Board abused its discretion in finding claimant to be eligible for benefits” (Matter of Poladian [Smithmyer—Commissioner of Labor], 87 AD3d 1196, 1197 [2011] [internal citations omitted];  see Matter of Garcia [BS & F Auto Parts, Inc.—Commissioner of Labor], 104 AD3d 985, 986 [2013] ).

Peters, P.J., Stein, McCarthy and Rose, JJ., concur.

ORDERED that the decision is affirmed, without costs.


Robert D. Mayberger

Clerk of the Court

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