In re the Claim of Santana

263 A.D.2d 564, 693 N.Y.S.2d 270, 1999 N.Y. App. Div. LEXIS 7699

Opinion

—Appeal from a decision of the Unemployment Insurance Appeal Board, filed May 2, 1997, which ruled that claimant was disqualified from receiving unemployment insurance benefits because his employment was terminated due to misconduct.

After arguing with a co-worker over the volume on a radio, claimant threatened the co-worker with an object wrapped in a towel which appeared to be a knife. Claimant was thereafter discharged and his application for unemployment insurance benefits was denied. Substantial evidence supports the decision of the Unemployment Insurance Appeal Board that claim ant lost his job due to disquahfying misconduct. Threatening behavior toward a co-worker has been held to constitute misconduct (see, Matter of Quinones [Tops Markets—Commissioner of Labor], 251 AD2d 743; Matter of Marcus [Sweeney], 235 AD2d 886). Claimant’s exculpatory explanation for his conduct merely created a credibility issue for the Board to resolve (see, Matter of Gibson [Commissioner of Labor], 250 AD2d 906). Furthermore, we find no error in the Administrative Law Judge permitting the co-worker who was the victim of the threat to testify via telephone inasmuch as the record reveals that claimant did not object and was afforded the opportunity to cross-examine the co-worker (see, Matter of Hoffman [Roberts], 138 AD2d 785, lv dismissed 77 NY2d 987).

Mikoll, J. P., Mercure, Crew III, Yesawich Jr. and Graffeo, JJ., concur. Ordered that the decision is affirmed, without costs.