Matter of Kemp (Commissioner of Labor)
2004 NY Slip Op 06684 [10 AD3d 793]
September 23, 2004
Appellate Division, Third Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, November 10, 2004


In the Matter of the Claim of Kenneth A. Kemp, Appellant. Commissioner of Labor, Respondent.

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Appeal from a decision of the Unemployment Insurance Appeal Board, filed June 2, 2003, which ruled that claimant was disqualified from receiving unemployment insurance benefits because he lost his employment due to misconduct.

Claimant was discharged from his employment after he used his office computer to view Web sites which violated the employer's policy governing use of the Internet. The Unemployment Insurance Appeal Board disqualified him from receiving unemployment insurance benefits on the basis that he lost his employment due to misconduct. Claimant appeals. Based upon our review of the record, we find that substantial evidence supports the Board's decision. The manager who investigated the matter testified that numerous hits were made from petitioner's office computer to three Web sites, which were considered by management to be pornographic. Although petitioner maintained that someone else could have used his computer to access such Web sites and that two of the identified Web sites were not pornographic, this presented a credibility issue for the Board to resolve (see Matter of Manno [Commissioner of Labor], 8 AD3d 869 [2004]; Matter of Barcene [Commissioner of Labor], 6 AD3d 855 [2004]). Therefore, we decline to disturb the Board's decision.

Crew III, J.P., Peters, Spain, Carpinello and Mugglin, JJ., concur. Ordered that the decision is affirmed, without costs.