Opinion
November 26, 1975
Appeal from a decision of the Unemployment Insurance Appeal Board, filed May 30, 1974, which affirmed the decision of a referee sustaining the initial determination of the Industrial Commissioner disqualifying claimant from receiving benefits on the ground that he voluntarily left his employment without good cause by provoking his discharge. Claimant's attendance record at work was extremely poor, and the record reveals that the claimant had been warned as to the consequences if the absenteeism continued. The claimant's proffered excuses for his absence and for his failure to call the employer, as required, presented the board with factual issues and issues of credibility which were resolved adversely to the claimant. Since the board's determinations were within its province and supported by substantial evidence, they must be sustained (Matter of Lester [Catherwood], 30 A.D.2d 1025). While the doctrine of provoked discharge has been limited by Matter of James (Levine), 34 N.Y.2d 491, the deportment of the claimant here would permit disqualification for misconduct (Matter of Rivera [Levine], 47 A.D.2d 569), and, following the procedure in Matter of James (supra), we hold claimant lost employment through his own misconduct. Decision affirmed, without costs. Herlihy, P.J., Greenblott, Koreman, Main and Reynolds, JJ., concur.