In re the Claim of Kessler

286 A.D.2d 844, 730 N.Y.S.2d 383, 2001 N.Y. App. Div. LEXIS 8854

Opinion

—Appeal from a decision of the Unemployment Insurance Appeal Board, filed December 3, 1999, which, upon reconsideration, adhered to its prior decision ruling that claimant was disqualified from receiving unemployment insurance benefits because his employment was terminated due to misconduct.

Claimant, a motor vehicle operator, was discharged from his employment with the United States Postal Service after being involved in a drag racing incident which caused an accident with serious injuries. This incident ultimately led to criminal charges and claimant pleading guilty to attempted assault in the third degree. Substantial evidence supports the decision of the Unemployment Insurance Appeal Board finding that claimant’s action constituted disqualifying misconduct. Although claimant maintains that he was not speeding, he admits that he and a friend were “horsing around” just prior to the collision. Given the nature of claimant’s employment duties, consisting primarily of operating a motor vehicle, we find no reason to disturb the Board’s conclusion that his misconduct was sufficiently connected with his employment notwithstanding the fact that he was off duty at the time of the incident (see, Matter of Barresi [Commissioner of Labor], 256 AD2d 667; Matter of Mora [Hartnett], 175 AD2d 442).

Cardona, P. J., Carpinello, Mugglin, Rose and Lahtinen, JJ., concur. Ordered that the decision is affirmed, without costs.