In re the Claim of Harris

Appellate Division of the Supreme Court of New York

In re the Claim of Harris

114 A.D.3d 973, 979 N.Y.S.2d 861

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

DecidedFebruary 6, 2014

StatusPublished

This text of 114 A.D.3d 973 (In re the Claim of Harris) 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 Harris, 114 A.D.3d 973, 979 N.Y.S.2d 861 (N.Y. Ct. App. 2014).

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Opinion

Appeal from a decision of the Unemployment Insurance Appeal Board, filed October 19, 2011, which ruled that claimant was disqualified from receiving unemployment insurance benefits because his employment was terminated due to misconduct.

Substantial evidence supports the decision of the Unemployment Insurance Appeal Board which ruled that claimant, a probationary correction officer, lost his employment due to disqualifying misconduct. The record establishes that claimant was involved in an altercation outside a bar and, after the police arrived and viewed a videotape of the incident, claimant was arrested for assault. Although claimant asserts that he was acting in self-defense, testimony at the hearing established that retreat from the situation was possible. Furthermore, any conflict in the testimony created a credibility issue for the Board to resolve (see Matter of Liebman [Commissioner of Labor], 20 AD3d 858, 858-859 [2005]). As the record supports the Board’s finding that claimant was aware of and violated the employer’s code of conduct prohibiting the use of unnecessary physical force, the decision will not be disturbed (see e.g. Matter of Ferri [Wynantskill Union Free School Dist.—Commissioner of Labor], 45 AD3d 1101, 1102 [2007]; Matter of Jones [Commissioner of Labor], 285 AD2d 801, 801 [2001]).

Claimant’s remaining contentions have been reviewed and are either without merit or not properly before this Court.

Eeters, EJ., Stein, Rose and Egan Jr., 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 October 19, 2011, which ruled that claimant was disqualified from receiving unemployment insurance benefits because his employment was terminated due to misconduct.

Substantial evidence supports the decision of the Unemployment Insurance Appeal Board which ruled that claimant, a probationary correction officer, lost his employment due to disqualifying misconduct. The record establishes that claimant was involved in an altercation outside a bar and, after the police arrived and viewed a videotape of the incident, claimant was arrested for assault. Although claimant asserts that he was acting in self-defense, testimony at the hearing established that retreat from the situation was possible. Furthermore, any conflict in the testimony created a credibility issue for the Board to resolve (see Matter of Liebman [Commissioner of Labor], 20 AD3d 858, 858-859 [2005]). As the record supports the Board’s finding that claimant was aware of and violated the employer’s code of conduct prohibiting the use of unnecessary physical force, the decision will not be disturbed (see e.g. Matter of Ferri [Wynantskill Union Free School Dist.—Commissioner of Labor], 45 AD3d 1101, 1102 [2007]; Matter of Jones [Commissioner of Labor], 285 AD2d 801, 801 [2001]).

Claimant’s remaining contentions have been reviewed and are either without merit or not properly before this Court.

Eeters, EJ., Stein, Rose and Egan Jr., JJ., concur. Ordered that the decision is affirmed, without costs.

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114 A.D.3d 973, 979 N.Y.S.2d 861, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-claim-of-harris-nyappdiv-2014.

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