Decided and Entered: April 10, 2003 92647 ________________________________ In the Matter of the Claim of LINDA SHENE, Appellant. COMMISSIONER OF LABOR, Respondent. ________________________________ Calendar Date: March 3, 2003 Before: Spain, J.P., Carpinello, Rose, Lahtinen and Kane, JJ. __________ Joel Spivak, Great Neck, for appellant. Eliot Spitzer, Attorney General, New York City (Linda D. Joseph of counsel), for respondent. __________ Appeal from a decision of the Unemployment Insurance Appeal Board, filed May 23, 2002, which ruled that claimant was disqualified from receiving unemployment insurance benefits because her employment was terminated due to misconduct. Claimant was discharged from her employment as a registered nurse on the staff of a hospital cardiac care unit after she failed to respond promptly to a pager alert set off by a patient. Prior to this incident, claimant had received several warnings and a three-day suspension for unsatisfactory job performance. The Unemployment Insurance Appeal Board denied claimant’s subsequent application for unemployment insurance benefits on the ground that she had lost her employment under disqualifying circumstances. Failure to comply with an employer’s policies and procedures may be found to constitute disqualifying misconduct, especially in cases where the claimant is a health care professional whose lapses could jeopardize the safety of a patient (see Matter of Heintzleman [Commissioner of Labor], 288 AD2d 742; Matter of Wright [Commissioner of Labor], 249 AD2d 668, 669). In the instant matter, hearing testimony indicated that the pager alert ignored by claimant had been triggered by a patient’s heart arrhythmia, a potentially serious condition which, if left unattended, could have resulted in the patient’s death. Claimant’s assertion that her pager was broken and that this caused her failure to respond was controverted by the testimony of her supervisor who had tested the apparatus following the incident in question and found it to be operating properly. This contradictory testimony presented an issue of credibility which the Board was free to resolve in favor of the employer (see Matter of Prairie [Commissioner of Labor], 265 AD2d 794, 795). As substantial evidence supports the Board’s finding of disqualifying misconduct, it will not be disturbed (see Matter of Martin [Commissioner of Labor], 299 AD2d 624, lv denied ___ NY2d ___ [Feb. 13, 2003]). Spain, J.P., Carpinello, Rose, Lahtinen and Kane, JJ., concur. ORDERED that the decision is affirmed, without costs. ENTER: Michael J. Novack Clerk of the Court
