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In the Matter of Rony A. v. Commissioner of Labor

State of New York Supreme Court, Appellate Division Third Judicial Department


January 5, 2012

IN THE MATTER OF RONY A. COLINDRES, APPELLANT.
v.
COMMISSIONER OF LABOR, RESPONDENT.

Appeal from a decision of the Unemployment Insurance Appeal Board, filed September 25, 2009, which ruled that claimant was disqualified from receiving unemployment insurance benefits because his employment was terminated due to misconduct.

The opinion of the court was delivered by: McCarthy, JJ.

Calendar Date: November 2, 2011

Before: Mercure, Acting P.J., Lahtinen, Spain, Kavanagh and

MEMORANDUM AND ORDER

Claimant worked as a groundskeeper for the employer, a landscape company. While at a job with other workers splitting wood, claimant was talking on his cell phone. When the job supervisor instructed him to get off the phone and claimant responded with a lewd gesture, a verbal altercation ensued that resulted in claimant grabbing the supervisor by the collar and threatening him with a clenched fist. Claimant was terminated as a result. The Unemployment Insurance Appeal Board disqualified him from receiving unemployment insurance benefits on the ground that he was terminated for misconduct. This appeal by claimant ensued.

We affirm. Hostile and/or threatening behavior directed at a supervisor has been found to be misconduct disqualifying a claimant from receiving unemployment insurance benefits (see Matter of Gigi [Commissioner of Labor], 37 AD3d 894, 894-895 [2007]; Matter of Terry [Commissioner of Labor], 23 AD3d 727, 728 [2005]). Here, more than one of the employer's witnesses testified that claimant threatened the supervisor with physical harm during the altercation. While claimant denied this, his testimony presented a credibility issue for the Board to resolve (see Matter of Messado [City of New York--Commissioner of Labor], 76 AD3d 740, 741 [2010]; Matter of Ponce [Commissioner of Labor], 75 AD3d 1041, 1042 [2010]). Accordingly, we find no reason to disturb the Board's decision.

Mercure, Acting P.J., Lahtinen, Spain, Kavanagh and McCarthy, JJ., concur.

ORDERED that the decision is affirmed, without costs.

ENTER:

Robert D. Mayberger Clerk of the Court

20120105

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