In re the Claim of Nicolas

Appellate Division of the Supreme Court of New York

In re the Claim of Nicolas

254 A.D.2d 557, 678 N.Y.S.2d 804, 1998 N.Y. App. Div. LEXIS 10899

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

DecidedOctober 15, 1998

StatusPublished

Cited by1 cases

This text of 254 A.D.2d 557 (In re the Claim of Nicolas) 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 Nicolas, 254 A.D.2d 557, 678 N.Y.S.2d 804, 1998 N.Y. App. Div. LEXIS 10899 (N.Y. Ct. App. 1998).

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Opinion

Appeal from a decision of the Unemployment Insurance Appeal Board, filed October 6, 1997, which, upon reconsideration, adhered to its prior decision ruling that claimant was disqualified from receiving unemployment insurance benefits because her employment was terminated due to misconduct.

Claimant, a home attendant, was arguing with an elderly client when a neighbor who heard the commotion knocked on the door. After claimant opened the door, she and the neighbor engaged in a physical altercation wherein claimant shoved the neighbor into the client, causing them both to fall. Claimant was discharged as a result of the incident and the Unemployment Insurance Appeal Board ruled that she was disqualified from receiving benefits because her employment was terminated due to misconduct. We affirm. Engaging in a physical assault during work hours may constitute disqualifying misconduct (see, Matter of Graham [New York State Elec. & Gas Corp. — Sweeney], 233 AD2d 660; Matter of Perry [Sweeney], 222 AD2d 924), regardless of who initiates the altercation or whether it results in criminal liability. Under the facts presented here, we find that substantial evidence supports the Board’s determination.

[558]*558Cardona, P. J., Mercure, Yesawich Jr., Peters and Graffeo, 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 6, 1997, which, upon reconsideration, adhered to its prior decision ruling that claimant was disqualified from receiving unemployment insurance benefits because her employment was terminated due to misconduct.

Claimant, a home attendant, was arguing with an elderly client when a neighbor who heard the commotion knocked on the door. After claimant opened the door, she and the neighbor engaged in a physical altercation wherein claimant shoved the neighbor into the client, causing them both to fall. Claimant was discharged as a result of the incident and the Unemployment Insurance Appeal Board ruled that she was disqualified from receiving benefits because her employment was terminated due to misconduct. We affirm. Engaging in a physical assault during work hours may constitute disqualifying misconduct (see, Matter of Graham [New York State Elec. & Gas Corp. — Sweeney], 233 AD2d 660; Matter of Perry [Sweeney], 222 AD2d 924), regardless of who initiates the altercation or whether it results in criminal liability. Under the facts presented here, we find that substantial evidence supports the Board’s determination.

[558]*558Cardona, P. J., Mercure, Yesawich Jr., Peters and Graffeo, JJ., concur. Ordered that the decision is affirmed, without costs.

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Bluebook (online)

254 A.D.2d 557, 678 N.Y.S.2d 804, 1998 N.Y. App. Div. LEXIS 10899, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-claim-of-nicolas-nyappdiv-1998.

Opinion

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