Opinion
April 9, 1998
Appeal from the Unemployment Insurance Appeal Board.
Claimant was employed as a truck driver for a meat distributor until he was discharged for physically assaulting a co-worker during working hours. Prior thereto, he had received warnings regarding his conduct following complaints from his employers customers and, shortly before the incident in question, had received a final warning from the employer that his involvement in any future altercations would result in his dismissal. The Unemployment Insurance Appeal Board ruled that claimant had lost his employment under disqualifying circumstances, charging him with a recoverable overpayment. Substantial evidence supports the finding that claimant participated in a fight with a co-worker, behavior that has repeatedly been construed as disqualifying misconduct ( see, Matter of Perry [Sweeney], 222 A.D.2d 924; Matter of Redjepi [Hudacs], 210 A.D.2d 727, 728), especially in cases where, as here, the claimant has been admonished to refrain from such conduct ( see, Matter of Agis [Sweeney], 242 A.D.2d 819). We note that claimant's contention that he was not the aggressor, but rather the victim of the assault, presented a credibility issue for the Board to resolve ( see, Matter of Friedland [Sweeney], 237 A.D.2d 765). We conclude that the benefits received by claimant were properly deemed recoverable.
Mikoll, J.P., Crew III, White, Yesawich Jr. and Spain, JJ., concur.
Ordered that the decision is affirmed, without costs.