IN RE: the Claim of DANIEL G. SMITH

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

IN RE: the Claim of DANIEL G. SMITH, Appellant.  COMMISSIONER OF LABOR, Respondent.


Decided: April 21, 2016

Before:  Lahtinen, J.P., Garry, Rose and Clark, JJ. Daniel G. Smith, South Glens Falls, appellant pro se. Eric T. Schneiderman, Attorney General, New York City (Bessie Bazile of counsel), for respondent.


Calendar Date:  February 23, 2016

Appeal from a decision of the Unemployment Insurance Appeal Board, filed January 6, 2015, 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 finding that claimant, a technical support representative, was discharged from his employment due to disqualifying misconduct.  “It is well settled that failure to abide by a known policy of the employer can constitute disqualifying misconduct” (Matter of Wise [Commissioner of Labor], 19 AD3d 795, 795 [2005] [citations omitted];  see Matter of Intini [Commissioner of Labor], 123 AD3d 1347, 1349 [2014];  Matter of Brauneisen [GEICO Ins. Co.

–Commissioner of Labor], 72 AD3d 1381, 1382 [2010] ).  Claimant, who worked from home, admitted that he was aware of the employer's policy that he was not to use the employer-issued computer for personal reasons and that he was not to access the Internet for non-business purposes while speaking on the telephone with a customer.  He further admitted to accessing a pornographic website on the employer's computer while on a call with a customer.  Under these circumstances, we find no reason to disturb the Board's finding that claimant was not entitled to benefits.  Further, contrary to claimant's contention, the question as to whether or not his conduct constituted “gross misconduct” for the purposes of continued health coverage after termination pursuant to the Consolidated Omnibus Budget Reconciliation Act (29 USC §§ 1162[2][A][1];  1163[2] ) is not binding on the Board in determining disqualifying misconduct for unemployment insurance benefit purposes (see generally Matter of Local 54 United Paperworkers Intl. Union [Commissioner of Labor], 301 A.D.2d 922, 923 [2003];  Matter of Scott v. Manzi Taxi & Transp.  Co., 179 A.D.2d 949, 951 [1992], lv denied 80 N.Y.2d 752 [1992] ).

Lahtinen, J.P., Garry, Rose and Clark, JJ., concur.

ORDERED that the decision is affirmed, without costs.


Robert D. Mayberger

Clerk of the Court

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