In re the Claim of Benton

268 A.D.2d 936, 702 N.Y.S.2d 691, 2000 N.Y. App. Div. LEXIS 810

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 27, 2000
• Status: Published

Opinion

—Appeals (1) from a decision of the Unemployment Insurance Appeal Board, filed June 17, 1999, which ruled that claimant was disqualified from receiving unemployment insurance benefits because his employment was terminated due to misconduct, and (2) from a decision of said Board, filed August 31, 1999, which, upon reconsideration, adhered to its prior decision.

Claimant was discharged from his employment after fighting with a co-worker during work hours. Substantial evidence supports the decision of the Unemployment Insurance Appeal Board that claimant was disqualified from receiving benefits because he lost his employment due to misconduct. Claimant’s contention that he was not the aggressor, but rather the victim of an assault, presented a credibility issue for the Board to resolve (see, Matter of Kahn [Commissioner of Labor], 249 AD2d 669). In any event, fighting with a co-worker, regardless of who initiated it, may constitute disqualifying misconduct (see, Matter of Williams [National School Bus Serv.—Commissioner of Labor], 257 AD2d 839).

Cardona, P. J., Mercure, Crew III, Peters and Spain, JJ., concur. Ordered that the decisions are affirmed, without costs.