In re the Claim of Terry

Nov 3, 2005
Versions:23 A.D.3d 727
802 N.Y.S.2d 637

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review a determination of respondent which found petitioner guilty of violating certain prison disciplinary rules.

Petitioner became verbally abusive during a pat frisk and tried to strike a correction officer, requiring the use of mechanical restraints to subdue him. As a result of this incident, he was charged in a misbehavior report with assaulting staff, refusing a direct order, engaging in harassment and failing to comply with frisk procedures. At a subsequent tier III disciplinary hearing, petitioner pleaded guilty to engaging in harassment and failing to comply with frisk procedures. He was found guilty of all charges at the conclusion of the hearing. Thereafter, the determination was upheld on administrative appeal, but the penalty was modified. This CPLR article 78 proceeding ensued.

We confirm. Petitioner’s sole challenge is to that part of the determination finding him guilty of assaulting staff. The misbehavior report, together with the testimony of a sergeant who witnessed the incident and the other documentary evidence, establish that petitioner swung at the officer with a closed fist but failed to make contact and provide substantial evidence supporting respondent’s determination (see Matter of Boyd v Goord, 18 AD3d 1078, 1079 [2005]). Petitioner’s denial of such conduct presented a credibility issue for the Hearing Officer to resolve (see Matter of Santiago v Goord, 11 AD3d 845, 846 [2004]). Consequently, we decline to disturb respondent’s determination.

Crew III, J.P., Peters, Spain, Rose and Kane, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.

Appeal from a decision of the Unemployment Insurance Appeal Board, filed June 4, 2004, which ruled that claimant was disqualified from receiving unemployment insurance benefits because her employment was terminated due to misconduct.

Substantial evidence supports the determination of the Unemployment Insurance Appeal Board denying claimant’s application for unemployment insurance benefits because she lost her employment as an administrative secretary due to disqualifying misconduct. The record establishes that claimant was terminated from her employment due to her belligerent and threatening behavior toward her supervisor. It is well settled that threatening a supervisor (see Matter of Wynne [Commissioner of Labor], 16 AD3d 755 [2005]; Matter of Ramos [Commissioner of Labor], 306 AD2d 791 [2003]) or engaging in insubordinate behavior (see Matter of Montanye [Commissioner of Labor], 10 AD3d 830 [2004]) can constitute disqualifying misconduct, particularly where, as here, a claimant has previously been admonished regarding such contentious behavior (see Matter of Sona [Commissioner of Labor], 13 AD3d 799 [2004]). To the extent that claimant offered a different version of the event leading to her discharge, this presented a credibility issue for the Board to resolve (see Matter of Allen [Commissioner of Labor], 5 AD3d 845, 846 [2004]; Matter of Shaw [S’il Vous Plait Message Mgt. Ctr. Ltd.—Commissioner of Labor], 302 AD2d 655 [2003]).

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