                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: June 16, 2016                     521411
________________________________

In the Matter of the Claim of
   JUAN A. MUNIZ,
                    Respondent.

MITAROTONDA SERVICES, INC.,
   Doing Business as CHIEF                  MEMORANDUM AND ORDER
   FIRE PREVENTION,
                    Appellant.

COMMISSIONER OF LABOR,
                    Respondent.
________________________________


Calendar Date:   May 3, 2016

Before:   Lahtinen, J.P., Garry, Rose, Clark and Aarons, JJ.

                               __________


      Vigorito, Barker, Porter & Patterson, LLP, Valhalla (Kyle
J. Zrenda of counsel), for appellant.

      Legal Services NYC – Bronx (Anne Nacinovich of counsel),
for Juan A. Muniz, respondent.

                               __________


      Appeal from a decision of the Unemployment Insurance Appeal
Board, filed January 30, 2015, which ruled that claimant was
entitled to receive unemployment insurance benefits.

      Claimant worked for the employer for 10 years, most
recently as a supervisor of three workers responsible for
cleaning commercial kitchen exhaust systems. Claimant was
responsible for correctly documenting on the employer's work
orders the crew's arrival and departure times and the work
performed. On his June 4, 2014 overnight shift, claimant worked
as scheduled from 10:00 p.m. to 5:15 a.m., but incorrectly
                              -2-                521411

documented the crew's actual arrival and departure times for one
of the jobs, using the time scheduled for the work for that
client rather than the actual time of arrival and departure.
When the employer learned of this from the client, claimant's
employment was terminated for falsifying the work order. While
claimant's initial application for unemployment insurance
benefits was denied on the ground that he lost his employment
though misconduct, following a hearing, an Administrative Law
Judge reversed, finding that while claimant had been previously
warned about recording the actual times on the work orders, he
was not adequately advised that his employment would be
terminated if he made this mistake again. The Unemployment
Insurance Appeal Board affirmed, and the employer appeals.

      We affirm. "Whether a claimant's actions rise to the level
of disqualifying misconduct is a factual issue for the Board to
resolve, and not every mistake, exercise of poor judgment or
discharge for cause will rise to the level of misconduct" (Matter
of Jensen [Victory State Bank–Commissioner of Labor], 126 AD3d
1207, 1207-1208 [2015] [internal quotation marks and citations
omitted]). Here, claimant testified that when he completed the
work order, he did not check the time on the clock and instead
recorded the work time that had been scheduled for the job in
question rather than documenting the actual arrival and departure
times, which he knew was required. He acknowledged that he had
been warned once in 2010 to use the actual times and of the
consequences of failing to do so, including a reduction in
salary, suspension or termination, but testified that he did not
expect to be terminated for the next violation. Rather, claimant
believed that the next violation would result in a suspension or
a reduction in his salary, in accordance with his understanding
of the employer's policy of progressive discipline. The employer
testified that claimant was verbally warned several times;
however, the timing of those warnings was not established. While
the record could also support a contrary conclusion, we find,
under the circumstances herein, that substantial evidence
supports the Board's decision that claimant's conduct did not
rise to the level of disqualifying misconduct and, thus, it will
not be disturbed (see Matter of Suchocki [St. Joseph's R.C.
Church–Commissioner of Labor], 132 AD3d 1222, 1224 [2015]; Matter
of Jensen [Victory State Bank–Commissioner of Labor], 126 AD3d at
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1208).

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



     ORDERED that the decision is affirmed, without costs.




                            ENTER:




                            Robert D. Mayberger
                            Clerk of the Court
