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In re Claim of Potter

Supreme Court of New York, Third Department

September 26, 2013

In the Matter of the Claim of JONNIE M. POTTER, Appellant. and COMMISSIONER OF LABOR, Respondent.

Calendar Date: July 29, 2013.

Mark S. Moroknek, Syosset, for appellant.

Eric T. Schneiderman, Attorney General, New York City (Gary Leibowitz of counsel), for respondent.

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

MEMORANDUM AND ORDER

Appeal from a decision of the Unemployment Insurance Appeal Board, filed November 18, 2011, 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 that claimant, a housing specialist for the employer, was terminated for misconduct. Claimant's lunch was not delivered with an order placed by one of her coworkers, whom she thereafter sought out and berated in a hostile and demeaning fashion. She had been previously disciplined for her unprofessional conduct and, while she complains of the consideration of a document pertaining to those incidents, she waived any issues related thereto by failing to raise them at the hearing (see Matter of Seftel [Commissioner of Labor], 31 A.D.3d 1011, 1011-1012 [2006]; Matter of Liposki [Citifloral, Inc.-Commissioner of Labor], 284 A.D.2d 819, 820 [2001]). In any event, our review of the record reveals nothing untoward in the Administrative Law Judge's consideration of the prior incidents, or his overall handling of the hearing. The Board was free to credit the above evidence and, inasmuch as "[c]ontentious or disruptive conduct in the workplace... may constitute disqualifying misconduct, " we perceive no reason to disturb its decision (Matter of Daley [Mount Sinai Hosp.-Commissioner of Labor, 3 A.D.3d 643, 643 [2004]; accord Matter of Fitzgerald [Commissioner of Labor], 73 A.D.3d 1375, 1375 [2010], lv denied 15 N.Y.3d 705 [2010]).

Claimant's remaining arguments have been considered and found to lack merit.

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

ORDERED that the decision is affirmed, without costs.


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