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Parker v. Commissioner of Labor

NEW YORK SUPREME COURT, APPELLATE DIVISION, THIRD DEPARTMENT


November 19, 2009

IN THE MATTER OF THE CLAIM OF LARRY V. PARKER, APPELLANT.
v.
COMMISSIONER OF LABOR, RESPONDENT.

MEMORANDUM AND ORDER

Calendar Date: September 30, 2009

Before: Cardona, P.J., Peters, Rose, Kavanagh and McCarthy, JJ.

Appeal from a decision of the Unemployment Insurance Appeal Board, filed August 15, 2008, which ruled that claimant was disqualified from receiving unemployment insurance benefits because his employment was terminated due to misconduct.

Claimant worked as a cleaner for the employer for three years until December 2007, when he was discharged for yelling and cursing at his supervisor. The Unemployment Insurance Appeal Board disqualified him from receiving unemployment insurance benefits on the ground that he lost his job due to misconduct. Claimant now appeals.

We affirm. "It is well settled that an employee's insubordinate and disrespectful behavior toward a supervisor may constitute disqualifying misconduct" (Matter of Montanye [Commissioner of Labor], 10 AD3d 830, 831 [2004] [citations omitted]; accord Matter of Segarra [Commissioner of Labor], 45 AD3d 1146, 1146 [2007]). Here, claimant's supervisor testified that he confronted claimant, who had reported late to work, and claimant responded by yelling and using profanity until security had to be called to remove claimant from the building. To the extent that claimant's testimony differed from that of his supervisor and another witness, this presented a credibility issue for the Board to resolve (see Matter of Auguste [Commissioner of Labor], 61 AD3d 1242, 1243 [2009]). Inasmuch as the Board's determination is supported by substantial evidence, it will not be disturbed.

Cardona, P.J., Peters, Rose, Kavanagh and McCarthy, JJ., concur.

ORDERED that the decision is affirmed, without costs.

20091119

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