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As readers of this blog know, an employee terminated for "misconduct" is not eligible for unemployment. The question becomes what is misconduct. Matter of Cuccia, ___A.D.3d___(3rd Dept. Oct. 23, 2008 - see below, Editor) holds that a secy terminate for being late, after being warned, was fired for misconduct and thus not eligible for unemployment. As the court stated:
In any event, even if we were to consider the underlying merits of the Board's November 2007 denial of claimant's application for benefits, we would find no reason to disturb its decision. We note that continued lateness, despite prior warnings, has been held to constitute disqualifying misconduct (see Matter of Van Beek [Commissioner of Labor], 32 AD3d 622 [2006]; Matter of Dintino [Commissioner of Labor], 21 AD3d 1151, 1152 [2005]). In the case at hand, the employer's representatives testified that claimant continued to arrive late to work even though she had been previously warned that her job was in jeopardy if her punctuality problems persisted. Accordingly, substantial evidence supports the Board's finding that claimant's employment was terminated due to misconduct.
Mitchell H. Rubinstein
Matter of Van Beek (Commissioner of Labor)
2006 NY Slip Op 06174 [32 AD3d 622]
August 10, 2006
Appellate Division, Third Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, October 11, 2006
In the Matter of the Claim of Ryan Van Beek, Appellant. Commissioner of Labor, Respondent.
—[*1]
Appeal from a decision of the Unemployment Insurance Appeal Board, filed December 14, 2005, which ruled that claimant was disqualified from receiving unemployment insurance benefits because his employment was terminated due to misconduct.
Claimant was employed as a service and repair technician for a scientific equipment distributor until he was fired on May 11, 2004 for failing to report to work on time. Substantial evidence supports the decision of the Unemployment Insurance Appeal Board ruling that claimant lost his job due to disqualifying misconduct. The record establishes that claimant received verbal warnings regarding his tardiness and was aware that his employment could be terminated if he was not on time for work. The employer testified that claimant was continually late for work and was ultimately discharged on May 11, 2004 for not arriving to work on time. 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 Dintino [Commissioner of Labor], 21 AD3d 1151, 1151-1152 [2005]; Matter of Chrysler [Commissioner of Labor], 9 AD3d 728, 728 [2004]), we find no reason to disturb the Board's decision. Although claimant denied being late for work on May 11, 2004, this created a credibility issue for the Board to resolve (see Matter of Mills [Unisource Worldwide, Inc.—Commissioner of Labor], 7 AD3d 845 [2004]; Matter of Wayne [Commissioner of Labor], 261 AD2d 768, 769 [1999]). Claimant's remaining contentions have been reviewed and found to be without merit.
Cardona, P.J., Mercure, Spain, Lahtinen and Kane, JJ., concur. [*2]Ordered that the decision is affirmed, without costs.
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.
As corrected through Wednesday, November 16, 2005
In the Matter of the Claim of Antonella D. Dintino, Appellant. Commissioner of Labor, Respondent.
—[*1]
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.
2008 NY Slip Op 08063
IN THE MATTER OF the Claim of JANET CUCCIA, Appellant.
MARTINEZ & RITORTO, P.C., Respondent. and
COMMISSIONER OF LABOR, Respondent.
504621
Appellate Division of the Supreme Court of New York, Third Department.
Decided October 23, 2008.
Appeals (1) from a decision of the Unemployment Insurance Appeal Board, filed November 19, 2007, which ruled that claimant was disqualified from receiving unemployment insurance benefits because her employment was terminated due to misconduct, and (2) from a decision of said Board, filed December 20, 2007, which dismissed an application for reopening and reconsideration.
Janet Cuccia, New York City, appellant pro se.
Martinez & Ritorto, P.C., New York City (Richard Ritorto of counsel), for Martinez & Ritorto, P.C., respondent.
Before: Peters, J.P., Carpinello, Lahtinen, Malone Jr. and Stein, JJ.
MEMORANDUM AND ORDER
Claimant worked as a legal secretary at a law firm for a few months. She was terminated from her position after she was late for work despite having received prior warnings from her employer. By decision mailed on November 19, 2007, the Unemployment Insurance Appeal Board disqualified claimant from receiving unemployment insurance benefits on the ground that her employment was terminated for misconduct. On December 20, 2007, the Board issued a subsequent decision dismissing an application for reopening and reconsideration because no actual application had been filed by claimant1 . Claimant appealed both decisions on January 17, 2008. The employer moved to dismiss the appeal from the November 2007 decision based upon claimant's failure to timely file it within 30 days of the Board's decision. This Court denied the motion without prejudice to the employer raising this issue on appeal.
Turning first to the timeliness issue, claimant's appeal from the Board's November 19, 2007 decision was not filed until January 17, 2008, well outside the 30-day statutory time period for taking such action (see Labor Law § 624; CPLR 5513 [a]; 22 NYCRR 800.17). Given claimant's failure to comply with this mandatory time requirement, her appeal from this decision must be dismissed as untimely (see Matter of Welsh [Commissioner of Labor], 51 AD3d 1351, 1351 [2008]; Matter of Andronica [Commissioner of Labor], 43 AD3d 1222, 1223 [2007]; see also Prowse v State of New York, 4 AD3d 581, 582 [2004]). In any event, even if we were to consider the underlying merits of the Board's November 2007 denial of claimant's application for benefits, we would find no reason to disturb its decision. We note that continued lateness, despite prior warnings, has been held to constitute disqualifying misconduct (see Matter of Van Beek [Commissioner of Labor], 32 AD3d 622 [2006]; Matter of Dintino [Commissioner of Labor], 21 AD3d 1151, 1152 [2005]). In the case at hand, the employer's representatives testified that claimant continued to arrive late to work even though she had been previously warned that her job was in jeopardy if her punctuality problems persisted. Accordingly, substantial evidence supports the Board's finding that claimant's employment was terminated due to misconduct.
Finally, although claimant's appeal from the Board's December 20, 2007 decision was taken within the 30-day statutory time period, this decision was issued in response to an application to reopen that was not even filed by claimant. Significantly, she has failed to raise any arguments in her brief regarding the dismissal of said application, thereby abandoning it (see Matter of Moorer [Commissioner of Labor], 40 AD3d 1335 [2007]).
Peters, J.P., Carpinello, Lahtinen, Malone Jr. and Stein, JJ., concur.
ORDERED that the appeal from the decision filed November 19, 2007 is dismissed, as untimely, without costs.
ORDERED that the decision filed December 20, 2007 is affirmed, without costs.
Notes:
1. The application had instead been filed by another claimant and processed under claimant's case in error.
Employment-at-will and Claims of Property Interest in Continued Employment
NYSUT Attorney Mitchell Rubinstein writes below about the issue of whether or not an "at will" employee has a property right interest in keeping his/her job. The NY Courts say no.
Employment-at-will Status Defeats Claim of Having a Property Interest in Continued Employment
Source: Adjunct Law Prof Blog; http://lawprofessors.typepad.com/adjunctprofs/
Reproduced with permission. Copyright © 2008, Mitchell H. Rubinstein, Esq., Adjunct Professor of Law, St. Johns Law School and New York Law School, All rights reserved.
Trakis v. Manhattan College, ___A.D.3d___ (2d Dep't May 13, 2008), demonstrates how narrow the employment rights are of at will employees. A professor emeritus who functioned as an adjunct was discharged because of alleged racist and sexist comments. Because the Adjunct was employed at will, his discharge was not unlawful. As the court reasoned:
Where employment is at will, an employee may be terminated at any time, for any reason, or for no reason at all (see Lobosco v New York Tel. Co./NYNEX, 96 NY2d 312, 316; Sabetay v Sterling Drug, 69 NY2d 329, 333; Miller v Huntington Hosp., 15 AD3d 548, 549 - see below, Editor). There is no requirement that the employee be discharged in good faith (see Sabetay v Sterling Drug, 69 NY2d at 335); only two recognized exceptions exist to this rule, which are inapplicable herein (see Horn v New York Times, 100 NY2d 85, 96; Matter of De Petris v Union Settlement Assn., 86 NY2d 406, 410; Wieder v Skala, 80 NY2d 628, 638; Miller v Huntington Hosp., 15 AD3d at 549). There is no recognized tort of wrongful discharge in New York (see Lobosco v New York Tel. Co./NYNEX, 96 NY2d at 316; Murphy v American Home Prods. Corp., 58 NY2d 293, 297).
Here, the defendants satisfied their prima facie burden of establishing their entitlement to judgment as a matter of law dismissing the cause of action sounding in wrongful discharge. The plaintiff's employment contract specifically noted that he was an "at will" employee who could be terminated "at any time, for any reason." In opposition, the plaintiff failed to raise a triable issue of fact (see Zuckerman v City of New York, 49 NY2d 557, 562). As such, the defendants were entitled to summary judgment dismissing that cause of action (see Tramontozzi v St. Francis Coll., 232 AD2d 629; Howley v Newsday, Inc., 215 AD2d 729, 730; Scheiber v St. John's Univ., 195 AD2d 544, 547-548, mod on other grounds 84 NY2d 120).
Likewise, to the extent the plaintiff sufficiently pleaded a cause of action alleging that he was deprived of procedural due process, the defendants were entitled to summary judgment dismissing that cause of action (see Shovlin v University of Med. & Dentistry of New Jersey, 50 F Supp 2d 297, 316). Nowhere in the complaint does the plaintiff allege, at a minimum, conduct by the college "acting under color of law which deprived the injured party of a right, privilege or immunity guaranteed by the Constitution or the laws of the United States" (DiPalma v Phelan, 81 NY2d 754, 756; see Sharrock v Dell Buick-Cadillac, 45 NY2d 152, 158; Moghimzadeh v College of St. Rose, 236 AD2d 681, 682). In any event, as an at will employee, the plaintiff did not have a property interest in his continued employment (see Baron v Port Auth. of New York & New Jersey, 271 F3d 81, 89; Shovlin v University of Med. & Dentistry of New Jersey, 50 F Supp 2d at 316; Natalizio v City of Middletown, 301 AD2d 507, 507-508; Matter of Macina v North Salem Cent. School Dist., 221 AD2d 538, 539).
Mitchell H. Rubinstein
See also NY Court of Appeals Once Again Affirms Employment-at-Will Doctrine
2004-01182 MILLER v. HUNTINGTON HOSPITAL
Citation: 2004-01182
Neutral citation: 2005 NY App Div (2nd Dept) 463
Legal status: Opinion 5 visits
Jurisdiction: New York Appellate Division Second Department
Decision date: Tuesday, 22 February 2005
Tags related to the opinion: no Tags
Citation: list of in going and out going citations to the present case
Citator: list of judicial treatments of the present case
Miller v Huntington Hosp. 2005 NY Slip Op 01328 [15 AD3d 548] February 22, 2005 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, April 20, 2005 Elizabeth Miller, Respondent, v Huntington Hospital et al., Appellants.
In an action to recover damages for breach of contract and negligence, the defendants appeal from an order of the Supreme Court, Suffolk County (Werner, J.), dated November 24, 2003, which denied their motion pursuant to CPLR 3211 (a) (7) to dismiss the complaint for failure to state a cause of action.
Ordered that the order is reversed, on the law, with costs, the motion is granted, and the complaint is dismissed.
"It is well settled that absent an agreement establishing a fixed duration, an employment relationship is presumed to be a hiring at will, terminable at any time by either party, for any reason or even for no reason" ( DeSimone v Supertek, Inc., 308 AD2d 501, 502 [2003]). The plaintiff was an at-will employee who could be terminated at any time. The plaintiff's reliance upon the defendant Huntington Hospital's personnel handbook ( see Horn v New York Times, 100 NY2d 85, 96 [2003]; Weiner v McGraw-Hill, Inc., 57 NY2d 458 [1982]; Rajagopalan v Mount Sinai Med. Ctr., 2 AD3d 232 [2003]) is misplaced since, inter alia, the handbook contains an explicit disclaimer of a contractual relationship ( see Lobosco v New York Tel. Co./NYNEX, 96 NY2d 312, 316 [2001]). " 'Courts will not infer a contractual limitation on the employer's right to terminate an at-will employment absent an express agreement to that effect which is relied upon by the employee' " ( Chazen v Person/Wolisky, Inc., 309 AD2d 889, 890 [2003], quoting Doynow v Nynex Publ. Co., 202 AD2d 388 [1994]). Accordingly, the Supreme Court erred in denying that branch of the defendants' motion which was pursuant to CPLR 3211 (a) (7) to dismiss the first cause of action which sought damages for breach of an employment contract for failure to state a cause of action.
The Supreme Court also should have granted that branch of the defendant's motion which was pursuant to CPLR 3211 (a) (7) to dismiss the second cause of action alleging negligence for failure to state a cause of action. "While an intentional tort may give rise to a cause of action outside the ambit of the Workers' Compensation Law, the complaint must allege 'an intentional or deliberate act by the employer directed at causing harm to this particular employee' " ( Fucile v Grand Union Co., 270 AD2d 227, 228 [2000], quoting Mylroie v GAF Corp., 81 AD2d 994, 995 1981], affd 55 NY2d 893 [1982]). The second cause of action does not allege that the defendants participated in the co-employee's alleged assault upon the plaintiff, and therefore is barred by the exclusivity provision of Workers' Compensation Law § 29 (6) ( see Thompson v Maimonides Med. Ctr., 86 AD2d 867, 868 [1982]; Fucile v Grand Union Co., supra at 228). " 'In order to constitute an intentional tort, the conduct must be engaged in with the desire to bring about the consequences of the act. A mere knowledge and appreciation of a risk is not the same as the intent to cause injury' " ( Acevedo v Consolidated Edison Co. of N.Y., 189 AD2d 497, 501 [1993], quoting Finch v Swingly, 42 AD2d 1035 [1973]). Allegations that an employer negligently exposed an employee to a substantial risk of injury have therefore been held insufficient to circumvent the exclusivity of the remedy provided by the Workers' Compensation Law ( see Gagliardi v Trapp, 221 AD2d 315, 316 [1995]; Nash v Oberman, 117 AD2d 724, 725 [1986]). Schmidt, J.P., Adams, Santucci and Skelos, JJ., concur.
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