In re the Claim of Kelly — 222 A.D.2d 918

Majority

p. 918

In the Matter of the Claim of Dennis J. Kelly, Respondent. Joint Industry Board of the Electrical Industry, Appellant; John E. Sweeney, as Commissioner of Labor, Respondent.

[635 NYS2d 113]

—Appeal from a decision of the Unemployment Insurance Appeal Board, filed July 8, 1994, which ruled that claimant was entitled to receive unemployment insurance benefits.

Claimant worked as a security guard and relief parking lot attendant until he was terminated for alleged misappropriation of funds collected at the parking lot. Claimant’s application for unemployment insurance benefits was granted by the Board, which found insufficient evidence to establish that claimant engaged in misconduct. The employer appeals contending, inter alia, that this decision is not supported by substantial evidence. Upon review of the record, we disagree and affirm.

Although videotaped evidence was presented showing that claimant collected money from cars exiting the security gate, claimant testified that he wrote down the amount of money and the license number on a ticket and left the money in the

p. 919

booth. There was further evidence that claimant was not the attendant responsible for turning the money in at the end of the day. In view of this, the Board could rationally conclude that claimant did not misappropriate money from his employer. We have considered the employer’s claim that it was not afforded adequate notice of the purpose of the second hearing and find it to be without merit.

Mercure, J. P., Crew III, Casey, Yesawich Jr. and Spain, JJ., concur. Ordered that the decision is affirmed, without costs.