                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: April 14, 2016                    521657
________________________________

In the Matter of the Claim of
   CORETHA D. GALLMAN,
                    Respondent.

BAPTIST HEALTH ENRICHED
   HOUSING PROGRAM, INC.,                   MEMORANDUM AND ORDER
   Doing Business As JUDSON
   MEADOWS,
                    Appellant.

COMMISSIONER OF LABOR,
                    Respondent.
________________________________


Calendar Date:   February 23, 2016

Before:   Peters, P.J., Lahtinen, Garry and Lynch, JJ.

                             __________


      Bond, Schoeneck & King, PLLC, Albany (Sanjeeve K. DeSoyza
of counsel), for appellant.

      Thomas F. Garner, Middleburgh, for Coretha D. Gallman,
respondent.

                             __________


      Appeal from a decision of the Unemployment Insurance Appeal
Board, filed November 18, 2014, which ruled that claimant was
entitled to receive unemployment insurance benefits.

      Claimant was discharged from her employment as a home
health aid for an assisted living facility for sleeping on duty
during her night shift, after having received a final warning
advising her that such conduct could lead to her discharge. The
Unemployment Insurance Appeal Board accepted claimant's
testimony, finding that she was entitled to unemployment
                              -2-                521657

insurance benefits as the evidence did not establish that she was
sleeping on duty or that she was terminated under disqualifying
conditions. The employer appeals.

      We affirm, as substantial evidence supports the Board's
finding that claimant did not engage in disqualifying misconduct.
"[W]hether a claimant's behavior has risen to the level of
disqualifying misconduct is a factual question for the Board to
resolve and its decision will not be disturbed if supported by
substantial evidence" (Matter of Alegria [Commissioner of Labor],
107 AD3d 1290, 1291 [2013]; see Matter of Jaiyesimi [ISS Action,
Inc.–Commisssioner of Labor], 114 AD3d 983, 983 [2014]). Here,
conflicting testimony was presented as to whether claimant
engaged in disqualifying misconduct by sleeping on the night in
question. While two of claimant's coworkers testified that they
observed her lying on a couch in the main lobby of the facility
sleeping for approximately five hours on the night in question,
the Board expressly discredited their testimony. The testimony
reflects that one of the coworkers was unsure which day this had
occurred and the other conceded that, although she was concerned
for the residents' safety, she never attempted to awaken claimant
and that claimant fulfilled all of her duties that night.
Claimant, in contrast, denied that she was sleeping on the night
in issue and that the first coworker was on duty or present that
night. As it is within the exclusive province of the Board to
decide issues of credibility, it was entitled to credit
claimant's testimony over the other testimony presented (see
Matter of Argueta [Barney's N.Y., Inc.–Commissioner of Labor],
133 AD3d 1005, 1005 [2015]; Matter of Sanders [Rescue Mission
Alliance, Inc.–Commissioner of Labor], 106 AD3d 1311, 1312
[2013]). Accordingly, the Board's decision is supported by
substantial evidence and will not be disturbed.

     Peters, P.J., Lahtinen, Garry and Lynch, JJ., concur.
                        -3-                  521657

ORDERED that the decision is affirmed, without costs.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
