                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: November 12, 2015                   520527
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In the Matter of the Claim of
   AARON D. ARGUETA,
                    Appellant.

BARNEY'S NEW YORK, INC.,                    MEMORANDUM AND ORDER
                    Respondent.

COMMISSIONER OF LABOR,
                    Respondent.
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Calendar Date:   September 22, 2015

Before:   Garry, J.P., Rose, Devine and Clark, JJ.

                             __________


      DeLince Law, PLLC, New York City (J. Patrick DeLince of
counsel), for appellant.

      Proskauer Rose, LLP, New York City (Howard Z. Robbins of
counsel), for Barney's New York, Inc., respondent.

      Eric T. Schneiderman, Attorney General, New York City (Gary
Leibowitz of counsel), for Commissioner of Labor, respondent.

                             __________


      Appeal from a decision of the Unemployment Insurance Appeal
Board, filed April 18, 2014, which ruled that claimant was
disqualified from receiving unemployment insurance benefits
because his employment was terminated due to misconduct.

      Claimant was discharged from his employment as a store
detective in the loss prevention department of a retail clothing
store for taking unauthorized breaks and sleeping during his
shift. The Unemployment Insurance Appeal Board found that
claimant was disqualified from receiving unemployment insurance
                              -2-                  520527

benefits because he lost his employment due to disqualifying
misconduct. Contrary to claimant's contention, the testimony at
the hearing and the inferences to be drawn from the videotape
evidence provide substantial evidence to support the Board's
finding that claimant slept during his shift, which claimant was
aware violated the employer's established policy (see Matter of
Beydoun [Trump World Tower Condominium-Commissioner of Labor],
308 AD2d 625, 625 [2003]; Matter of De Maria [Commissioner of
Labor], 276 AD2d 1010, 1010-1011 [2000]). Although claimant
denied that he was sleeping, this presented a credibility issue
for the Board to resolve (see Matter of Sanders [Rescue Mission
Alliance Inc.-Commissioner of Labor], 106 AD3d 1311, 1312 [2013];
Matter of Jordan [Moschitto Trim & Jewelry Corp.-Commissioner of
Labor], 296 AD2d 734, 734-735 [2002]). Claimant's remaining
contentions have been reviewed and found to be unpersuasive.

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



     ORDERED that the decision is affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
