                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: March 19, 2015                    519281
________________________________

In the Matter of the Claim of
   JENNIFER JENSEN,
                    Respondent.

VICTORY STATE BANK,                         MEMORANDUM AND ORDER
                      Appellant.

COMMISSIONER OF LABOR,
                    Respondent.
________________________________


Calendar Date:   January 20, 2015

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

                             __________


      Law Offices of Steven M. Sack, New York City (Steven
Mitchell Sack of counsel), for appellant.

      Young Woo Lee, The Legal Aid Society, New York City, for
Jennifer Jenson, respondent.

                             __________


      Appeal from a decision of the Unemployment Insurance Appeal
Board, filed September 23, 2013, which ruled that claimant was
eligible to receive unemployment insurance benefits.

      Claimant, a customer service representative for a bank,
opened a checking account for a coworker, the assistant branch
manager, which claimant was authorized to use for buying and
selling items on eBay. Although claimant maintained a savings
account at the bank, which was limited to six transactions a
month, the record establishes that claimant's checking account
had recently been closed at the behest of the bank, which
claimant felt was unwarranted. Claimant mistakenly wrote a rent
check on the coworker's account and, when she realized the error,
                              -2-                519281

she stopped payment on the check. Claimant used the bank tellers
when transacting business through the account, providing her own
name and identifying information. When the branch manager
noticed the stop payment that claimant had placed on the check,
claimant was terminated for opening and using an account in
someone else's name and for performing maintenance on an account
with which she was associated, in violation of the employer's
policy. The Unemployment Insurance Appeal Board, reversing a
decision of the Administrative Law Judge, ruled that, although
claimant exercised poor judgment, she did not engage in
disqualifying misconduct for the purpose of unemployment
insurance benefits. This appeal by the employer ensued.

      "Whether a claimant's actions rise to the level of
disqualifying misconduct is a factual issue for the Board to
resolve" (Matter of Okano [Bruno, Gerbino & Soriano, LLP-
Commissioner of Labor], 114 AD3d 1128, 1128 [2014] [citations
omitted]), and "not every mistake, exercise of poor judgment or
discharge for cause will rise to the level of misconduct" (Matter
of Morris [Lenox Hill Neighborhood House Inc.-Commissioner of
Labor], 110 AD3d 1333, 1334 [2013] [internal quotation marks and
citations omitted]). Here, there is nothing in the record to
refute claimant's testimony that she was authorized by the
assistant branch manager to open and use the checking account.
Although the employer viewed this as dishonest, the record
establishes that claimant funded the account, was not secretive
about using it and no complaints about the use of the account
were lodged by the assistant branch manager. As for the
violation of the employer's policy, the record does not
substantiate that claimant was given a copy of the policy nor
does the policy provide for an employee's discharge.
Furthermore, claimant testified that she would not jeopardize her
employment of 13 years if she believed placing a stop payment on
the erroneously written check violated the employer's policy.
Although the record could support a contrary conclusion, we find,
under the circumstances herein, that substantial evidence
supports the Board's decision and it will not be disturbed (see
Matter of Kuryla [Finger Lakes Community Coll.-Commissioner of
Labor], 45 AD3d 1129, 1130-1131 [2007]; Matter of Spencer [Bank
of Smithtown-Commissioner of Labor], 244 AD2d 838, 838-839
[1997]).
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Lahtinen, J.P., Garry, Egan Jr. and Devine, JJ., concur.



ORDERED that the decision is affirmed, without costs.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
