In re the Claim of Fourby

Appeal from a decision of the Unemployment Insurance Appeal Board, filed April 28, 1997, which, upon reconsideration, inter alia, adhered to its prior decision ruling that claimant was disqualified from receiving unemployment insurance benefits because her employment was terminated due to misconduct. Claimant was discharged from her employment as an attendant at a retirement home after she served a resident a tray of food in a disrespectful and discourteous manner. Claimant was disqualified from receiving unemployment insurance benefits because her employment was terminated due to misconduct. Inasmuch as such conduct was adverse to the employer’s interest (see, Matter of Mallard [Sweeney], 245 AD2d 932) and was contrary to its rules (see, Matter of Blaine [Sweeney], 244 AD2d 753), we conclude that substantial evidence supports the Unemployment Insurance Appeal Board’s decision that claimant was guilty of disqualifying misconduct. To the extent that claimant contends that she should not be assessed a recoverable overpayment, we note that any benefits received are recoverable under the circumstances presented here (see, Labor Law § 597 [4]), despite the employer’s agreement not to contest claimant’s receipt of such benefits (see, Matter of Caplan [Sweeney], 238 AD2d 660). In any event, in response to claimant’s request, the Board has remitted for a hearing on the issue of whether claimant received an overpayment of benefits. Mikoll, J. P., Mercure, White, Yesawich Jr. and Spain, JJ., concur. Ordered that the decision is affirmed, without costs.