                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: December 8, 2016                   522002
________________________________

In the Matter of the Claim of
   JORDAN E. TRACY,
                    Appellant.
                                            MEMORANDUM AND ORDER
COMMISSIONER OF LABOR,
                    Respondent.
________________________________


Calendar Date:   October 25, 2016

Before:   Peters, P.J., Garry, Egan Jr., Rose and Devine, JJ.

                             __________


      Christopher Smith, Legal Services of Central New York,
Inc., Binghamton, for appellant.

      Eric T. Schneiderman, Attorney General, New York City
(Linda D. Joseph of counsel), for respondent.

                             __________


      Appeal from a decision of the Unemployment Insurance Appeal
Board, filed January 16, 2015, as superceded by decision filed
September 20, 2016, which ruled that claimant was disqualified
from receiving unemployment insurance benefits because her
employment was terminated due to misconduct.

      Claimant, an operations supervisor at an electronics store,
was discharged from her employment after she consumed a soda from
the employer's cooler – on two separate occasions – without
paying for either. The Unemployment Insurance Appeal Board,
reversing a decision of an Administrative Law Judge, denied her
application for unemployment insurance benefits on the basis that
she engaged in disqualifying misconduct. Claimant appealed from
that decision.
                              -2-                522002

      Claimant contends that the Board improperly deemed her
statement submitted on administrative appeal as untimely. We
find that the issue is moot given that the Board subsequently
reopened the January 16, 2015 decision for reconsideration –
permitting claimant to submit the statement for the Board's
consideration – and issued a new decision, dated September 20,
2016, which, among other things, again sustained the initial
determination denying claimant's application for unemployment
insurance benefits.1

      Turning to the merits, "an employee's dishonesty or failure
to comply with an employer's policy and procedures constitutes
disqualifying misconduct" (Matter of Cappello [ELRAC
LLC–Commissioner of Labor], 113 AD3d 952, 953 [2014]; see Matter
of Bender [Olums of Binghamton, Inc.–Commissioner of Labor], 36
AD3d 1041, 1042 [2007]). Claimant was observed by other
employees consuming the sodas, which did not have the employer's
color-coded stickers indicating that claimant had paid for the
items and did not appear in the employer's computer system as
having been purchased. Claimant's assertion that she does not
remember whether she took sodas without paying for them and, in
any event, lacked any intention not to pay for them created a
credibility issue for the Board to resolve. Given that
substantial evidence supports the Board's decision, it will not
be disturbed (see Matter of Briskie [Commissioner of Labor], 98
AD3d 786, 787 [2012]).

      We have reviewed claimant's remaining contentions,
including her argument regarding the employer's failure to


    1
        We note that the merits of the Board's September 20, 2016
decision are reviewable by this Court on the pending appeal, "as
claimant is aggrieved by [that] decision 'in essentially the same
manner' as she was by the appealed-from decision" (Matter of
McCauley [Commissioner of Labor], 104 AD3d 973, 973 [2013],
quoting Matter of Ford [Commissioner of Labor], 12 AD3d 955, 955
[2004]; see Matter of Hotaling [Commissioner of Labor], 8 AD3d
766, 766 [2004]; Matter of Mauskoff [Commissioner of Labor], 79
AD2d 790, 791 [1980]; Matter of Olan [Ross], 60 AD2d 113, 115-116
[1977]).
                              -3-                  522002

produce the video surveillance tape, and find them to be without
merit.

      Peters, P.J., Garry, Egan Jr., Rose and Devine, JJ.,
concur.



     ORDERED that the decision is affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
