Matter of Smith (Commr. of Labor) , 31 N.Y.S.3d 245 ( 2016 )

State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: April 21, 2016 521824
________________________________
In the Matter of the Claim of
DANIEL G. SMITH,
Appellant.
MEMORANDUM AND ORDER
COMMISSIONER OF LABOR,
Respondent.
________________________________
Calendar Date: February 23, 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.
__________
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
-2- 521824
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 AD2d 922, 923 [2003]; Matter of Scott v Manzi Taxi & Transp.
Co., 179 AD2d 949, 951 [1992], lv denied 80 NY2d 752 [1992]).
Lahtinen, J.P., Garry, Rose and Clark, JJ., concur.
ORDERED that the decision is affirmed, without costs.
ENTER:
Robert D. Mayberger
Clerk of the Court