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In the Matter of Cedeno

Appellate Division of the Supreme Court of New York, Third Department
Apr 29, 2004
6 A.D.3d 1035 (N.Y. App. Div. 2004)

Opinion

95036.

Decided and Entered: April 29, 2004.

Appeal from a decision of the Unemployment Insurance Appeal Board, filed August 7, 2003, which ruled that claimant was disqualified from receiving unemployment insurance benefits because her employment was terminated due to misconduct.

Nise F. Bacallao, New York City, for appellant.

Eliot Spitzer, Attorney General, New York City (Bessie Bazile of counsel), for respondent.

Before: Crew III, J.P., Peters, Carpinello, Mugglin and Rose, JJ.


MEMORANDUM AND ORDER

Substantial evidence supports the decision of the Unemployment Insurance Appeal Board that claimant lost her employment due to disqualifying misconduct for fighting with a coworker. Regardless of who initiates the altercation, fighting with a coworker during working hours can constitute disqualifying misconduct (see Matter of McCray [Commissioner of Labor], 301 A.D.2d 1010, lv denied 100 A.D.2d 502; Matter of Labayen [Commissioner of Labor], 301 A.D.2d 1014, 1015; Matter of Ferrarie [Hartnett], 176 A.D.2d 420, 421). Claimant's assertion that she was acting in self-defense presented a credibility issue for the Board to resolve inasmuch as there was countervailing testimony that she had an opportunity to walk away from the situation before it escalated into a physical altercation (see Matter of Love [Commissioner of Labor], 249 A.D.2d 674).

Crew III, J.P., Peters, Carpinello, Mugglin and Rose, JJ., concur.

ORDERED that the decision is affirmed, without costs.


Summaries of

In the Matter of Cedeno

Appellate Division of the Supreme Court of New York, Third Department
Apr 29, 2004
6 A.D.3d 1035 (N.Y. App. Div. 2004)
Case details for

In the Matter of Cedeno

Case Details

Full title:IN THE MATTER OF THE CLAIM OF CRISTINA CEDENO, Appellant. COMMISSIONER OF…

Court:Appellate Division of the Supreme Court of New York, Third Department

Date published: Apr 29, 2004

Citations

6 A.D.3d 1035 (N.Y. App. Div. 2004)
775 N.Y.S.2d 601