State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: December 8, 2016 522002 

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In the Matter of the Claim of 

JORDAN E. TRACY, 

Appellant.

MEMORANDUM AND ORDER

COMMISSIONER OF LABOR, 

Respondent.

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Calendar Date: October 25, 2016

Before: Peters, P.J., Garry, Egan Jr., Rose and Devine, JJ.

__________

Christopher Smith, Legal Services of Central New York,

Inc., Binghamton, for appellant.

Eric T. Schneiderman, Attorney General, New York City

(Linda D. Joseph of counsel), for respondent.

__________

Appeal from a decision of the Unemployment Insurance Appeal

Board, filed January 16, 2015, as superceded by decision filed

September 20, 2016, which ruled that claimant was disqualified

from receiving unemployment insurance benefits because her

employment was terminated due to misconduct.

Claimant, an operations supervisor at an electronics store,

was discharged from her employment after she consumed a soda from

the employer's cooler – on two separate occasions – without

paying for either. The Unemployment Insurance Appeal Board,

reversing a decision of an Administrative Law Judge, denied her

application for unemployment insurance benefits on the basis that

she engaged in disqualifying misconduct. Claimant appealed from

that decision. 
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Claimant contends that the Board improperly deemed her

statement submitted on administrative appeal as untimely. We

find that the issue is moot given that the Board subsequently

reopened the January 16, 2015 decision for reconsideration –

permitting claimant to submit the statement for the Board's

consideration – and issued a new decision, dated September 20,

2016, which, among other things, again sustained the initial

determination denying claimant's application for unemployment

insurance benefits.1 

Turning to the merits, "an employee's dishonesty or failure

to comply with an employer's policy and procedures constitutes

disqualifying misconduct" (Matter of Cappello [ELRAC

LLC–Commissioner of Labor], 113 AD3d 952, 953 [2014]; see Matter

of Bender [Olums of Binghamton, Inc.–Commissioner of Labor], 36

AD3d 1041, 1042 [2007]). Claimant was observed by other

employees consuming the sodas, which did not have the employer's

color-coded stickers indicating that claimant had paid for the

items and did not appear in the employer's computer system as

having been purchased. Claimant's assertion that she does not

remember whether she took sodas without paying for them and, in

any event, lacked any intention not to pay for them created a

credibility issue for the Board to resolve. Given that

substantial evidence supports the Board's decision, it will not

be disturbed (see Matter of Briskie [Commissioner of Labor], 98

AD3d 786, 787 [2012]). 

We have reviewed claimant's remaining contentions,

including her argument regarding the employer's failure to

1 We note that the merits of the Board's September 20, 2016

decision are reviewable by this Court on the pending appeal, "as

claimant is aggrieved by [that] decision 'in essentially the same

manner' as she was by the appealed-from decision" (Matter of

McCauley [Commissioner of Labor], 104 AD3d 973, 973 [2013],

quoting Matter of Ford [Commissioner of Labor], 12 AD3d 955, 955

[2004]; see Matter of Hotaling [Commissioner of Labor], 8 AD3d

766, 766 [2004]; Matter of Mauskoff [Commissioner of Labor], 79

AD2d 790, 791 [1980]; Matter of Olan [Ross], 60 AD2d 113, 115-116

[1977]).
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produce the video surveillance tape, and find them to be without

merit. 

Peters, P.J., Garry, Egan Jr., Rose and Devine, JJ.,

concur.

ORDERED that the decision is affirmed, without costs.

ENTER:

Robert D. Mayberger

Clerk of the Court