IN RE: the Claim of Marie E. NICOLAS (1998)

Appeal from a decision of the Unemployment Insurance Appeal Board, filed October 6, 1997, which, upon reconsideration, adhered to its prior decision ruling that claimant was disqualified from receiving unemployment insurance benefits because her employment was terminated due to misconduct.

 Claimant, a home attendant, was arguing with an elderly client when a neighbor who heard the commotion knocked on the door.   After claimant opened the door, she and the neighbor engaged in a physical altercation wherein claimant shoved the neighbor into the client, causing them both to fall.   Claimant was discharged as a result of the incident and the Unemployment Insurance Appeal Board ruled that she was disqualified from receiving benefits because her employment was terminated due to misconduct.   We affirm.   Engaging in a physical assault during work hours may constitute disqualifying misconduct (see, Matter of Graham [New York State Elec. & Gas Corp.-Sweeney], 233 A.D.2d 660, 649 N.Y.S.2d 743;  Matter of Perry [Sweeney], 222 A.D.2d 924, 635 N.Y.S.2d 364), regardless of who initiates the altercation or whether it results in criminal liability.   Under the facts presented here, we find that substantial evidence supports the Board's determination.

ORDERED that the decision is affirmed, without costs.

MEMORANDUM DECISION.