In re the Claim of Fisher

Appellate Division of the Supreme Court of New York

In re the Claim of Fisher

305 A.D.2d 955, 759 N.Y.S.2d 405, 2003 N.Y. App. Div. LEXIS 6080

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMay 29, 2003

StatusPublished

This text of 305 A.D.2d 955 (In re the Claim of Fisher) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In re the Claim of Fisher, 305 A.D.2d 955, 759 N.Y.S.2d 405, 2003 N.Y. App. Div. LEXIS 6080 (N.Y. Ct. App. 2003).

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Opinion

—Appeal from a decision of the Unemployment Insurance Appeal Board, filed February 13, 2002, which ruled that claimant was disqualified from receiving unemployment insurance benefits because his employment was terminated due to misconduct.

Claimant was discharged from his employment as a data entry clerk at an antique automobile dealership after yelling a vulgar comment to a female coworker despite a recent warning that such conduct was inappropriate. The Unemployment Insurance Appeal Board, reversing the decision of the Administrative Law Judge, ruled that claimant engaged in disqualifying misconduct and denied his application for unemployment insurance benefits. Contrary to claimant’s contention on appeal, testimony from the employer who witnessed claimant’s outburst provides substantial evidence to support the Board’s decision.

We also reject claimant’s assertion that the Board improperly relied upon a statement submitted by the coworker involved in the incident and that he should be granted a new hearing in order to cross-examine her. Although claimant objected to the [956]*956coworker’s statement being introduced, he nevertheless failed to request a subpoena to compel the testimony of the coworker (see Matter of Santiago [Commissioner of Labor], 285 AD2d 780 [2001]). Furthermore, claimant was given the opportunity to cross-examine the employer regarding the statement. Under these circumstances, we find no reason to disturb the Board’s decision.

Cardona, P.J., Mercure, Crew III, Rose and Lahtinen, JJ., concur. Ordered that the decision is affirmed, without costs.

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—Appeal from a decision of the Unemployment Insurance Appeal Board, filed February 13, 2002, which ruled that claimant was disqualified from receiving unemployment insurance benefits because his employment was terminated due to misconduct.

Claimant was discharged from his employment as a data entry clerk at an antique automobile dealership after yelling a vulgar comment to a female coworker despite a recent warning that such conduct was inappropriate. The Unemployment Insurance Appeal Board, reversing the decision of the Administrative Law Judge, ruled that claimant engaged in disqualifying misconduct and denied his application for unemployment insurance benefits. Contrary to claimant’s contention on appeal, testimony from the employer who witnessed claimant’s outburst provides substantial evidence to support the Board’s decision.

We also reject claimant’s assertion that the Board improperly relied upon a statement submitted by the coworker involved in the incident and that he should be granted a new hearing in order to cross-examine her. Although claimant objected to the [956]*956coworker’s statement being introduced, he nevertheless failed to request a subpoena to compel the testimony of the coworker (see Matter of Santiago [Commissioner of Labor], 285 AD2d 780 [2001]). Furthermore, claimant was given the opportunity to cross-examine the employer regarding the statement. Under these circumstances, we find no reason to disturb the Board’s decision.

Cardona, P.J., Mercure, Crew III, Rose and Lahtinen, JJ., concur. Ordered that the decision is affirmed, without costs.

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Bluebook (online)

305 A.D.2d 955, 759 N.Y.S.2d 405, 2003 N.Y. App. Div. LEXIS 6080, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-claim-of-fisher-nyappdiv-2003.

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