In re the Claim of McCray

Appellate Division of the Supreme Court of New York

In re the Claim of McCray

301 A.D.2d 1010, 753 N.Y.S.2d 757, 2003 N.Y. App. Div. LEXIS 679

Appellate Division of the Supreme Court of the State of New York·Decided January 30, 2003·Published·Cited by 4 cases

Opinion

—Appeal from a decision of the Unemployment Insurance Appeal Board, filed June 26, 2002, which ruled that claimant was disqualified from receiving unemployment insurance benefits because his employment was terminated due to misconduct.

[1011] Substantial evidence supports the decision of the Unemployment Insurance Appeal Board finding that claimant lost his employment as a security guard due to disqualifying misconduct for fighting on the job with a coworker. Fighting with a coworker at work, regardless of who initiates the altercation, can constitute disqualifying misconduct (see Matter of Romano [Commissioner of Labor], 291 AD2d 776; Matter of Benton [Avon Injected Rubber & Plastics—Commissioner of Labor], 268 AD2d 936). Although claimant disagreed with the shift supervisor’s testimony that claimant participated in the altercation by throwing punches at his coworker, this created a credibility issue for the Board to resolve (see Matter of Perez [Commissioner of Labor], 284 AD2d 705).

Cardona, P.J., Mercure, Crew III, Lahtinen and Kane, 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 June 26, 2002, which ruled that claimant was disqualified from receiving unemployment insurance benefits because his employment was terminated due to misconduct.

[1011] Substantial evidence supports the decision of the Unemployment Insurance Appeal Board finding that claimant lost his employment as a security guard due to disqualifying misconduct for fighting on the job with a coworker. Fighting with a coworker at work, regardless of who initiates the altercation, can constitute disqualifying misconduct (see Matter of Romano [Commissioner of Labor], 291 AD2d 776; Matter of Benton [Avon Injected Rubber & Plastics—Commissioner of Labor], 268 AD2d 936). Although claimant disagreed with the shift supervisor’s testimony that claimant participated in the altercation by throwing punches at his coworker, this created a credibility issue for the Board to resolve (see Matter of Perez [Commissioner of Labor], 284 AD2d 705).

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

In re the Claim of McCray, 301 A.D.2d 1010, 753 N.Y.S.2d 757, 2003 N.Y. App. Div. LEXIS 679 (N.Y. Ct. App. 2003).

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