Tuesday, April 16, 2013
Matter of Mordukhayev (Commissioner of Labor), ____A.D.3d____(3d Dep't. March 14, 2013). As the Court stated:
Where a claimant has had a full and fair opportunity to litigate the issue of the conduct precipitating termination in an arbitration proceeding, the arbitrator's factual findings must be [*2]accorded collateral estoppel effect (see Matter of Redd [Commissioner of Labor], 98 AD3d 791, 791 , lv denied 20 NY3d 857 ; Matter of Bishop [New York City Human Resources Admin.—Commissioner of Labor], 282 AD2d 924, 924 ). It is incumbent upon the Board, however, to make an independent assessment as to whether such conduct constitutes misconduct for purposes of qualifying for unemployment insurance benefits (see Matter of Nwaozor [City of New York—Commissioner of Labor], 82 AD3d 1475, 1475 ; Matter of Eustace [Suffolk County Sheriff's Off.—Commissioner of Labor], 52 AD3d 1140 ). Here, it was established that claimant was represented at the arbitration hearing and had ample opportunity to participate therein. Inasmuch as she had a full and fair opportunity to litigate the conduct providing the basis for her dismissal, the Board properly gave collateral estoppel effect to the arbitrator's factual findings that claimant removed the telephone from the charger in the room and did not disclose to management that she had found it, and further that the telephone left the hotel premises when claimant did and was later located near her home. From this, the Board reasonably inferred that claimant took the telephone without authorization, providing substantial evidence for its determination that claimant was guilty of misconduct, disqualifying her from receiving unemployment insurance benefits (see Matter of Dit [Commissioner of Labor], 98 AD3d 1183, 1183 ; Matter of Zaydman [Roman Roytberg, Inc., P.C.—Commissioner of Labor], 87 AD3d 1192, 1193 ). In view of this, we decline to disturb the Board's decision.
Mitchell H. Rubinstein