In re the Claim of Barnes , 600 N.Y.S.2d 161 ( 1993 )

Appeal from a decision of the Unemployment Insurance Appeal Board, filed February 19, 1991, which ruled that claimant was disqualified from receiving unemployment insurance benefits because her employment was terminated due to misconduct.

Claimant’s employer utilized a progressive point system for the purpose of disciplining its employees. An employee who accumulated 10 points in a period of one year could be discharged. The nature of the conduct that had transpired would determine how many points or fractions of a point would be charged. On May 21, 1990, claimant was warned that her job was in jeopardy because she had accumulated 8V2 points. Thereafter, on August 23, 1990, claimant was absent because her car broke down on her way to work, raising her total to over nine points. Although claimant got her car back at 9:00 a.m. the next day, she called her employer and informed him that she would be absent again. As a result, claimant accumulated additional points and was discharged. Claimant, who lived only four miles from work, chose to absent herself from work rather than seek other means of transportation, including public transportation, which was available. The employer’s representative testified that had claimant just been late instead of absent, claimant would have received less points and she would not have lost her job. Under the circumstances, substantial evidence exists to support the determination of the Unemployment Insurance Appeal Board that claimant’s actions amounted to misconduct and thus disqualified her from receiving unemployment insurance benefits (see, Matter of Lawson [Eastman Kodak Co.— Hartnett] 151 AD2d 868, 869; Matter of Douglas [Hartnett] 143 AD2d 458, 459; Matter of Patterson [Levine] 50 AD2d 703, mot to dismiss appeal granted 38 NY2d 937).

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