                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: October 29, 2015                   520732
________________________________

In the Matter of the Claim of
   JUSTIN R. SUCHOCKI,
                    Respondent.

ST. JOSEPH'S R.C. CHURCH,                   MEMORANDUM AND ORDER
                    Appellant.

COMMISSIONER OF LABOR,
                    Respondent.
________________________________


Calendar Date:   September 22, 2015

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

                             __________


      Hovey & Massaro, Niagara Falls (Angelo Massaro of counsel),
for appellant.

      Wojtan, Vallone & Melin, PC, Cheektowaga (Thomas Wojtan of
counsel), for Justin R. Suchocki, respondent.

                             __________


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

      Claimant was employed as a groundskeeper at a church-owned
cemetery beginning in June 2010. Due to his excessive
absenteeism and tardiness over the course of the prior two
months, claimant received a written warning on July 23, 2013
advising him that further such conduct would result in his
termination. After claimant failed to come to work on August 8,
2013, he was terminated. His application for unemployment
insurance benefits was initially denied on the ground that he was
terminated for misconduct, and the denial was upheld by an
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Administrative Law Judge (hereinafter ALJ) following a hearing.
The Unemployment Insurance Appeal Board, however, reversed the
ALJ's decision and ruled that claimant was entitled to receive
benefits. The employer appeals.

      While continued absenteeism, despite previous warnings, may
rise to the level of misconduct disqualifying an employee from
receiving unemployment insurance benefits (see Matter of
Jaiyesimi [ISS Action Inc.—Commissioner of Labor], 114 AD3d 983,
983-984 [2014]; Matter of Berkeley [Commissioner of Labor], 94
AD3d 1328, 1328-1329 [2012]; Matter of Goodridge, 65 AD3d 1415,
1416 [2009]), "termination of employment attributable to symptoms
of a diagnosed medical condition will not constitute
disqualifying misconduct" (Matter of Donovan [Bay Orthopedic &
Rehabilitation Supply Co.–Commissioner of Labor], 96 AD3d 1312,
1312 [2012]; see Matter of Buyukcekmece [Abigail Kirsch at
Tappan—Commissioner of Labor], 82 AD3d 1400, 1400 [2011]; Matter
of Anumah [Commissioner of Labor], 60 AD3d 1216, 1217 [2009], lv
denied 13 NY3d 706 [2009]). Whether an absence is justified so
as to remove it from disqualifying misconduct is a factual
question for the Board to resolve, and its resolution of this
issue will not be disturbed if supported by substantial evidence
(see id.).

      Here, claimant testified that he suffers from type 1
diabetes and that he experienced a diabetic episode, consisting
of shakiness, nausea and headaches, that caused his absence on
August 8, 2013. He submitted medical documentation confirming
his diabetic condition and indicating that it is being treated
but has been "difficult to control." Although the employer was
aware that he was a diabetic, claimant admittedly failed to
inform his superiors that he was experiencing health problems
related to his diabetes or that this was the cause of his August
8, 2013 absence. The Board, as the final arbiter of factual
issues and credibility, was free to credit claimant's testimony
concerning the reason for his absence and was not bound by the
contrary conclusion reached by the ALJ (see Matter of Lee
[Cascades Tissue Group–Commissioner of Labor], 117 AD3d 1251,
1252 [2014]; Matter of Alegria [Commissioner of Labor], 107 AD3d
1290, 1291-1292 [2013]; Matter of Loeffler [Commissioner of
Labor], 100 AD3d 1134, 1135 [2012]). Pursuant to our limited
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review, "this Court may not weigh conflicting evidence or
substitute its own judgment, and if, as here, the findings turn
on the credibility of witnesses, we may not substitute our
perceptions for those of the agency" (Matter of Saunders [Life
Adj. Ctr., Inc.—Commissioner of Labor], 106 AD3d 1317, 1317
[2013] [internal quotation marks, brackets and citation
omitted]). Under these circumstances, substantial evidence
supports the Board's determination that claimant's loss of
employment was not due to disqualifying misconduct (see Matter of
Donovan [Bay Orthopedic & Rehabilitation Supply Co.–Commissioner
of Labor], 96 AD3d at 1312-1313; Matter of Buyukcekmece [Abigail
Kirsch at Tappan—Commissioner of Labor], 82 AD3d at 1401),
notwithstanding the existence of proof that would support a
contrary conclusion.

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



     ORDERED that the decision is affirmed, with costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
