                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: February 5, 2015                   519484
________________________________

In the Matter of the Claim of
   VICTOR M. MEJIA,
                    Respondent.

METROPOLITAN CABLE
   COMMUNICATIONS INC.,                     MEMORANDUM AND ORDER
                    Appellant.

COMMISSIONER OF LABOR,
                    Respondent.
________________________________


Calendar Date:   December 2, 2014

Before:   Peters, P.J., McCarthy, Egan Jr. and Clark, JJ.

                             __________


     Arnold Davis, New York City, for appellant.

      Michelle I. Rosien, Philmont, for Victor M. Mejia,
respondent.

                             __________


      Appeal from a decision of the Unemployment Insurance Appeal
Board, filed January 17, 2014, which ruled that claimant was
entitled to receive unemployment insurance benefits.

      Claimant worked as a technician for the employer, a cable
installation contractor, for five years. The employer allowed
technicians to use their own personal vehicles for work and they
received extra compensation for doing so. It also had a policy
prohibiting technicians from having anyone in their vehicles
during the course of the work day without authorization. On
September 8, 2011, claimant reported to work driving his own
personal vehicle with his wife as a passenger and, after
obtaining his work schedule, dropped his wife off at a doctor's
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appointment before arriving at his first call. The employer
found this to be a violation of its policy and terminated
claimant's employment. Claimant's application for unemployment
insurance benefits was initially denied on the ground that his
employment was terminated due to misconduct. This determination
was later overruled by an Administrative Law Judge following a
hearing, and the Unemployment Insurance Appeal Board affirmed
this decision, entitling claimant to receive benefits. The
employer now appeals.

      Whether the behavior providing the basis for termination
constitutes misconduct disqualifying an employee from receiving
unemployment insurance benefits is a factual issue for the Board
to resolve, and its determination will be upheld if supported by
substantial evidence (see Matter of Cardenas [Metropolitan Cable
Communications, Inc.–Commissioner of Labor], 118 AD3d 1234, 1234-
1235 [2014]; Matter of Andrews [A.C. Roman & Assoc.–Commissioner
of Labor], 118 AD3d 1216, 1216-1217   [2014]). "Significantly,
'not every mistake, exercise of poor judgment or discharge for
cause will rise to the level of misconduct'" (Matter of Okano
[Bruno, Gerbino & Soriano, LLP–Commissioner of Labor], 114 AD3d
1128, 1128-1129 [2014], quoting Matter of Bush [St. Luke's
Cornwall Hosp.–Commissioner of Labor], 60 AD3d 1179, 1180 [2009];
see Matter of Nangreave [United Health Servs. Hosps., Inc.–
Commissioner of Labor], 107 AD3d 1211, 1212 [2013]). Here, the
written policy that claimant was charged with violating related
specifically to company-owned vehicles and did not address
employees' personal vehicles. To the extent that the employer
applied the policy to personal vehicles used by employees for
work purposes as well, claimant's technical violation may be
viewed as an innocent mistake. In light of this, and given the
absence of credible evidence establishing that claimant had
received prior warnings for such conduct,1 substantial evidence
supports the conclusion that claimant's transgression was an
isolated occurrence that did not rise to the level of
disqualifying misconduct (see Matter of Okano [Bruno, Gerbino &


    1
        Although claimant's former supervisor testified that he
had previously given claimant a verbal warning regarding such
conduct, he subsequently gave directly contradictory testimony.
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Soriano, LLP–Commissioner of Labor], 114 AD3d at 1129; Matter of
Jaiyesimi [ISS Action Inc.–Commissioner of Labor], 114 AD3d 983,
984 [2014]; Matter of McKoy [LB&B Assoc., Inc.–Commissioner of
Labor], 27 AD3d 922, 923 [2006]). Therefore, we decline to
disturb the Board's decision.

     Peters, P.J., McCarthy, Egan Jr. and Clark, JJ., concur.



     ORDERED that the decision is affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
