In re the Claim of Smith
Opinion of the Court
Appeal from a decision of the Unemployment Insurance Appeal Board, filed July 16, 1999, which ruled that claimant was entitled to receive unemployment insurance benefits.
Claimant was discharged from his employment as a stock chaser for allegedly assaulting a co-worker. Following a hearing, an Administrative Law Judge overruled the initial determination and ruled that claimant did not engage in disqualifying misconduct because he did not initiate the altercation and responded only to defend himself. The Unemployment Insurance Appeal Board affirmed this decision finding that claimant was entitled to receive unemployment insurance benefits and the employer appeals.
We affirm. “Misconduct presents a factual issue for resolution by the Board, whose decision will not be disturbed if supported by substantial evidence” (Matter of Padilla [Sephardic Home for Aged — Roberts], 113 AD2d 997). Here, claimant testified that his co-worker initiated the physical confrontation and that he pushed the co-worker in order to protect himself. Inasmuch as the employer failed to produce the testimony of the co-worker, who still was in its employ, or the other employ
Mercure, J. P., Crew III, Mugglin and Lahtinen, JJ., concur. Ordered that the decision is affirmed, without costs.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.