                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: June 30, 2016                     521486
________________________________

In the Matter of the Claim of
   OKSANA MYKHASKIV,
                    Appellant.

WESTHAMPTON BEACH UNION FREE                MEMORANDUM AND ORDER
   SCHOOL DISTRICT,
                    Respondent.

COMMISSIONER OF LABOR,
                    Respondent.
________________________________


Calendar Date:   June 3, 2016

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

                             __________


      Law Office of Steven Morelli, Garden City (Russell J.
Platzek of counsel), for appellant.

      Eric T. Schneiderman, Attorney General, New York City (Gary
Leibowitz of counsel), for Commissioner of Labor, respondent.

                             __________


Clark, J.

      Appeal from a decision of the Unemployment Insurance Appeal
Board, filed October 10, 2014, which ruled that claimant was
disqualified from receiving unemployment insurance benefits
because her employment was terminated due to misconduct.

      Claimant was employed as a custodian with a school district
when several charges were preferred against her, including
misconduct and neglect of duty stemming from, among other things,
her failure to comply with her supervisor's directive to assist
in cleaning an area assigned to another coworker who was absent
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from work. Following a disciplinary hearing held pursuant to
Civil Service Law § 75, the Hearing Officer sustained, among
other things, the charge that claimant engaged in misconduct upon
a finding that claimant refused to comply with her supervisor's
directive to clean a particular area. Based upon the Hearing
Officer's findings of fact and recommendation, claimant was
discharged from her employment for insubordinate behavior.
Thereafter, the Unemployment Insurance Appeal Board denied
claimant's subsequent application for unemployment insurance,
finding that her employment was terminated due to disqualifying
misconduct. Claimant appeals.

      Contrary to claimant's contention, the record reflects that
she had a full and fair opportunity to litigate the issue of her
misconduct at the Civil Service Law § 75 hearing. Claimant was
represented at the hearing by an attorney, had a representative
from her union present and was afforded an opportunity to
testify, present witnesses and cross-examine the employer's
witnesses. Under these circumstances, we find that the Board
properly gave collateral estoppel effect to the factual findings
of the Hearing Officer (see Matter of Ranni [Ross], 58 NY2d 715,
717-718 [1982]; Matter of Intini [Commissioner of Labor], 123
AD3d 1347, 1348 [2014]; Matter of Guynup [County of
Clinton–Commissioner of Labor], 106 AD3d 1357, 1358 [2013]).
Furthermore, the record confirms that the Board made its own
conclusions as to whether claimant's behavior constituted
disqualifying misconduct for unemployment insurance purposes (see
Matter of Guimarales [New York City Bd. of Educ.–Roberts], 68
NY2d 989, 991 [1986]; Matter of Hopton [Commissioner of Labor],
136 AD3d 1098, 1099 [2016]; Matter of Sona [Commissioner of
Labor], 13 AD3d 799, 799 [2004]). To that end, given that
insubordinate behavior has been held to constitute disqualifying
misconduct, substantial evidence supports the Board's finding
that claimant, who had previously been warned about complying
with the employer's directives, was disqualified from receiving
unemployment insurance benefits (see Matter of Morales
[Commissioner of Labor], 70 AD3d 1271, 1272 [2010], lv denied 14
NY3d 711 [2010]; Matter of Agran [Commissioner of Labor], 54 AD3d
479, 480 [2008]; Matter of Sona [Commissioner of Labor], 13 AD3d
at 800). Accordingly, the Board's decision will not be
disturbed.
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Peters, P.J., Lahtinen, Egan Jr. and Rose, JJ., concur.



ORDERED that the decision is affirmed, without costs.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
