                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: December 11, 2014                   518609
________________________________

In the Matter of the Claim of
   LAURA Q. SULLIVAN,
                    Respondent.

BROOKVILLE CENTER FOR                       MEMORANDUM AND ORDER
   CHILDREN'S SERVICES, INC.,
                    Appellant.

COMMISSIONER OF LABOR,
                    Respondent.
________________________________


Calendar Date:   October 21, 2014

Before:   Lahtinen, J.P., McCarthy, Rose, Lynch and Clark, JJ.

                             __________


      Cooper Sapir & Cohen, PC, Melville (David M. Cohen of
counsel), for appellant.

      Michelle I. Rosien, Philmont, for Laura Q. Sullivan,
respondent.

                             __________


      Appeal from a decision of the Unemployment Insurance Appeal
Board, filed January 3, 2014, which ruled that claimant was
entitled to receive unemployment insurance benefits.

      Claimant worked for almost seven years as a senior speech
language pathologist for the employer until she was terminated in
May 2013. The termination resulted from her running afoul of the
employer's written policy prohibiting employees from posting on
social media "during work hours, unless for specific and approved
business purposes." The Unemployment Insurance Appeal Board
thereafter determined that claimant was entitled to receive
unemployment insurance benefits because, in its view, she had not
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lost her job due to disqualifying misconduct.   The employer now
appeals.

      The question of whether a claimant engaged in actions
sufficient to disqualify him or her from receiving unemployment
insurance benefits is a factual one for the Board to resolve,
"and its determination will not be disturbed if supported by
substantial evidence" (Matter of Jaiyesimi [ISS Action Inc.–
Commissioner of Labor], 114 AD3d 983, 983 [2014]; see Matter of
Morris [Lenox Hill Neighborhood House Inc.–Commissioner of
Labor], 110 AD3d 1333, 1334 [2013]). Not every discharge for
cause rises to the level of misconduct, which is defined as "a
willful and wanton disregard of the employer's interest" (Matter
of Rahaman [New York Convention Ctr. Operating Corp.–Commissioner
of Labor], 101 AD3d 1206, 1207 [2012] [internal quotation marks
and citations omitted]). Claimant did not dispute that she was
aware of the employer's policy on social media usage and that she
nevertheless posted an item during work hours. The record also
reflects, however, that it was an isolated incident and that
claimant had a clean disciplinary record prior to her
termination. Substantial evidence thus supports the
determination of the Board that claimant's behavior, while
reflective of a momentary lapse in judgment, did not rise to the
level of disqualifying misconduct (see Matter of Nangreave
[United Health Servs. Hosps., Inc.–Commissioner of Labor], 107
AD3d 1211, 1212 [2013]; Matter of McKoy [LB&B Assoc.,
Inc.–Commissioner of Labor], 27 AD3d 922, 923 [2006]).

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




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
