In re the Claim of McDonald , 52 A.D.2d 697 ( 1976 )

Appeal from a decision of the Unemployment Insurance Appeal Board, filed October 9, 1975, which reversed the decision of a referee and sustained an initial determination of the Industrial Commissioner disqualifying claimant from receiving benefits effective March 9, 1975 because he lost his employment through misconduct in connection therewith. Claimant’s denial at the hearing that he discarded rather than deliver third class mail when juxtaposed to eyewitness testimony that the mail truck assigned to claimant was at the site at the time scheduled and that the physiognomy of the operator of the truck closely resembled that of claimant, raised a factual question that was within the province of the board to resolve. (Cf. US Code, tit 5, § 8506, subd [a], par [4], authorizing State agency of Federal employer to make factual findings which are final and conclusive for purposes of § 8502, subd [d] and § 8503, subd [c]; Matter of Goldberg [Catherwood] 35 AD2d 860.) Since there is substantial evidence in the record to support the board’s determination, it cannot be disturbed. (Matter of Fisher [Levine], 36 NY2d 146; Labor Law, § 623.) Decision affirmed, without costs. Kane, J. P., Mahoney, Main, Larkin and Herlihy, JJ., concur.