In re the Claim of Cedeno

Apr 29, 2004
Versions:6 A.D.3d 1035
775 N.Y.S.2d 601
2004 N.Y. App. Div. LEXIS 5056

Appeal from a decision of the Unemployment Insurance Appeal Board, filed August 7, 2003, which ruled that claimant was disqualified from receiving unemployment insurance benefits because her employment was terminated due to misconduct.

Substantial evidence supports the decision of the Unemployment Insurance Appeal Board that claimant lost her employment due to disqualifying misconduct for fighting with a coworker. Regardless of who initiates the altercation, fighting with a coworker during working hours can constitute disqualifying misconduct (see Matter of McCray [Commissioner of Labor], 301 AD2d 1010 [2003], lv denied 100 NY2d 502 [2003]; Matter of Labayen [Commissioner of Labor], 301 AD2d 1014, 1015 [2003]; Matter of Ferrarie [Hartnett], 176 AD2d 420, 421 [1991]). Claimant’s assertion that she was acting in self-defense presented a credibility issue for the Board to resolve inasmuch as there was countervailing testimony that she had an opportunity to walk away from the situation before it escalated into a physical altercation (see Matter of Love [Commissioner of Labor], 249 AD2d 674 [1998]).

Crew III, J.P., Peters, Carpinello, Mugglin and Rose, JJ., concur. Ordered that the decision is affirmed, without costs.