In re the Claim of Shivpal

Appeal from a decision of the Unemployment Insurance Appeal Board, filed February 11, 2003, which ruled that claimant was disqualified from receiving unemployment insurance benefits because his employment was terminated due to misconduct. Claimant was discharged from his position as an account 1136 manager and salesperson with the employer bottling company after an incident that took place on the employer’s premises during which an exchange of insults between claimant and a coworker led claimant, while holding a chair, to lunge at the coworker, scratching him on the arm. The Unemployment Insurance Appeal Board subsequently ruled that claimant was properly denied unemployment insurance benefits, having been discharged due to disqualifying misconduct. It is well settled that a physical altercation between coworkers, regardless of who initiates it, may constitute disqualifying misconduct (see Matter of Labayen [Commissioner of Labor], 301 AD2d 1014, 1015 [2003]; Matter of Abbondanzo [Commissioner of Labor], 275 AD2d 850 [2000], lv denied 96 NY2d 713 [2001], cert denied 535 US 1040 [2002]). Substantial evidence that claimant was guilty of perpetrating such misconduct was presented by the testimony of the coworker who was directly involved in the incident, as well as by the testimony of the employer’s other witnesses (see Matter of Bauer [Commissioner of Labor], 305 AD2d 795 [2003]). Petitioner’s exculpatory testimony, that the incident was accidental, raised a credibility issue for resolution by the Board (see Matter of Petrocelli [Commissioner of Labor], 275 AD2d 834, 835 [2000]; Matter of Pabon [Commissioner of Labor], 271 AD2d 800, 801 [2000]). Claimant’s remaining contentions have been examined and found to be without merit. Cardona, P.J., Crew III, Carpinello, Mugglin and Lahtinen, JJ., concur. Ordered that the decision is affirmed, without costs.