In re the Claim of Solanikow

Kane and Mikoll, JJ.,

dissent and vote to reverse in the following memorandum by Kane, J. Kane, J. (dissenting). Claimant was employed as a loading clerk and was absent from work for three days beginning on November 29, 1976. He returned to work on December 2, 1976, but was fired shortly after beginning work that day. The referee, in sustaining the Industrial Commissioner’s initial determination that claimant was disqualified from benefits because of loss of employment through misconduct, found that claimant was discharged because of his absence from work without proper notification to his employer. The referee also found that claimant knew that he was required to call his employer each day that he intended to be absent from work. While there was conflicting testimony given at the hearing as to whether claimant notified the employer of his intended absence on the second day he missed work, it is undisputed that notice was not given on either the first or third days claimant was absent. Claimant testified that he was never told that his employer should be notified each day that he would be absent from work. The only evidence in the record indicating that claimant knew of the company policy which required notice to be given each day an employee was absent came from the employer’s accounting manager and was completely hearsay. While such evidence was admissible in this administrative proceeding (Labor Law, §622, subd 2; Matter of Shea [Ross], 53 AD2d 945), hearsay statements standing alone cannot sustain a determination required to be supported by substantial evidence (Matter of Luks [Levine], 45 AD2d 801). Thus, the decision of the Unemployment Insurance Appeal Board affirming the referee’s decision is *795not, as a matter of law, supported by substantial evidence (Matter of Perry [Levine], 37 AD2d 367) and should be reversed.