                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: June 23, 2016                     522041
________________________________

In the Matter of the Claim of
   STEVEN PUELLO,
                    Appellant.
                                            MEMORANDUM AND ORDER
COMMISSIONER OF LABOR,
                    Respondent.
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Calendar Date:   May 3, 2016

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

                               __________


     Steven Puello, Union City, 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 July 14, 2015, which ruled that claimant was
disqualified from receiving unemployment insurance benefits
because his employment was terminated due to misconduct.

      Claimant, a retail associate since 2006, was late to work
on six occasions in less than one month and received a written
warning on December 29, 2014 advising him that further such
conduct may result in disciplinary action including termination.
After claimant was tardy reporting to work on several occasions
in January 2015, including on January 14, 2015, his employment
was terminated on January 15, 2015 for continued lateness. His
application for unemployment insurance benefits was denied on the
ground that he was terminated for misconduct which, following a
hearing, was upheld by the Administrative Law Judge and affirmed
by the Unemployment Insurance Appeal Board. Claimant appeals.
                              -2-                522041

      We affirm. "Whether a claimant has engaged in
disqualifying misconduct is a factual question for the Board to
resolve and its determination will not be disturbed if supported
by substantial evidence" (Matter of Chirico [City of
Syracuse–Commissioner of Labor], 136 AD3d 1137, 1138 [2016]
[internal quotation marks and citation omitted]). Continued
tardiness and failure to comply with an employer's established
policy regarding tardiness despite warnings has been held to
constitute disqualifying misconduct (see Matter of Khan
[Commissioner of Labor], 75 AD3d 971, 971 [2010]; Matter of
Hilton [Commissioner of Labor], 67 AD3d 1220, 1220 [2009]; Matter
of Kazaka [Commissioner of Labor], 46 AD3d 1071, 1072 [2007];
Matter of Valenta [Commissioner of Labor], 38 AD3d 1070, 1071
[2007]). Claimant testified that he received the written warning
regarding his excessive tardiness on December 29, 2014 and was
aware of the employer's written policy regarding tardiness.
Claimant admitted that he was late to work on January 14, 2015,
explaining that he had fallen asleep on the commuter train and
missed his stop, but offered no testimony or proof that his
tardiness was attributable to a medical condition (compare Matter
of Suchocki [St. Joseph's R.C. Church–Commissioner of Labor], 132
AD3d 1222, 1223 [2015]). Given the foregoing, we find that
substantial evidence supports the Board's finding that claimant's
tardiness was not justified and that he was discharged from his
employment for misconduct (see id.; Matter of Khan [Commissioner
of Labor], 75 AD3d at 971).

      Lahtinen, J.P., Garry, Lynch, Clark and Aarons, JJ.,
concur.
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ORDERED that the decision is affirmed, without costs.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
