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Mesagna v. Commissioner of Labor

NEW YORK SUPREME COURT, APPELLATE DIVISION, THIRD DEPARTMENT


February 11, 2009

IN THE MATTER OF THE CLAIM OF RONALD MESAGNA, APPELLANT.
v.
COMMISSIONER OF LABOR, RESPONDENT.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Calendar Date: December 18, 2008

Before: Cardona, P.J., Mercure, Malone Jr., Kavanagh and Stein, JJ.

MEMORANDUM AND ORDER

Appeal from a decision of the Unemployment Insurance Appeal Board, filed October 9, 2007, which ruled that claimant was disqualified from receiving unemployment insurance benefits because his employment was terminated due to misconduct.

Claimant, a superintendent at an apartment complex, was discharged in February 2007 after he was arrested in connection with an incident wherein he threatened a tenant with a baseball bat. The Unemployment Insurance Appeal Board ultimately ruled that claimant was disqualified from receiving unemployment insurance benefits because he had lost his employment as a result of misconduct. This appeal by claimant ensued.

We affirm. "An employee's contentious or threatening behavior in the workplace may constitute disqualifying misconduct" (Matter of Irizarri [Commissionor of Labor], 45 AD3d 1149, 1149 [2007] [citation omitted]). In the case at bar, claimant's assertion that he never threatened the tenant created a credibility issue for resolution by the Board, and the testimony from the employer's property manager provided substantial evidence to support the Board's determination that claimant was fired due to misconduct (see id.).

Cardona, P.J., Mercure, Malone Jr., Kavanagh and Stein, JJ., concur.

ORDERED that the decision is affirmed, without costs.

20090211

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