| Matter of Dintino (Commissioner of Labor) |
| 2005 NY Slip Op 06704 [21 AD3d 1151] |
| September 15, 2005 |
| Appellate Division, Third Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| In the Matter of the Claim of Antonella D. Dintino, Appellant. Commissioner of Labor, Respondent. |
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Appeal from a decision of the Unemployment Insurance Appeal Board, filed June 28, 2004, which ruled that claimant was disqualified from receiving unemployment insurance benefits because her employment was terminated due to misconduct.
Substantial evidence supports the decision of the Unemployment Insurance Appeal Board finding that claimant lost her employment as a residential counselor due to misconduct. The record establishes that claimant was on probationary status for excessive tardiness and absenteeism and had been informed that any further tardiness would not be tolerated. When claimant then called in late to work because she had overslept, she was discharged from her employment. Inasmuch as "[c]ontinued lateness, despite prior warnings, can constitute disqualifying misconduct" (Matter of Rush [Commissioner of Labor], 10 AD3d 798, 799 [2004]; see Matter of Chrysler [Commissioner of Labor], 9 AD3d 728, 728 [2004]; Matter of King [Commissioner of Labor], 8 AD3d 807, 807 [2004]), the Board's decision will not be disturbed.
Mercure, J.P., Peters, Rose, Lahtinen and Kane, JJ., concur. Ordered that the decision is affirmed, without costs.