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In the Matter of the Claim of v. Commissioner of Labor

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


April 18, 2013

IN THE MATTER OF THE CLAIM OF DAMION L. MARK, APPELLANT.
v.
COMMISSIONER OF LABOR, RESPONDENT.

Appeal from a decision of the Unemployment Insurance Appeal Board, filed December 9, 2011, which, upon reconsideration, adhered to its prior decision ruling that claimant was disqualified from receiving unemployment insurance benefits because he lost his employment due to misconduct.

MEMORANDUM AND ORDER

Calendar Date: February 25, 2013

Before: Peters, P.J., Rose, Spain and Garry, JJ.

Claimant, while employed as a security officer for a hospital, became involved in a struggle with a co-worker when the co-worker refused to give claimant his communications radio. After claimant physically took the radio from the co-worker, the co-worker pushed him, resulting in claimant pushing the co-worker in return. The ensuing fight was witnessed by patients as well as staff, and claimant was terminated from his position for violating the employer's policy prohibiting employees from fighting on the job. The Unemployment Insurance Appeal Board ultimately ruled that claimant was disqualified from receiving unemployment insurance benefits because he lost his employment due to misconduct. Upon reconsideration, the Board adhered to that decision, prompting this appeal.

We affirm. "Fighting with a co-worker, regardless of who initiates the confrontation, has been held to constitute misconduct disqualifying a claimant from receiving unemployment insurance benefits" (Matter of Jones [Commissioner of Labor], 100 AD3d 1134, 1134 [2012] [citations omitted]; see Matter of Hernandez [Commissioner of Labor], 98 AD3d 1185, 1185 [2012]). Here, claimant admitted being aware of the employer's zero tolerance policy against fighting and, under the circumstances presented, we find that substantial evidence supports the Board's decision disqualifying him from receiving benefits (see Matter of Chisholm [Commissioner of Labor], 54 AD3d 1094, 1094 [2008]).

Peters, P.J., Rose, Spain and Garry, JJ., concur.

ORDERED that the decision is affirmed, without costs.

ENTER:

20130418

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