IN RE: the Claim of Leslie LUBIN (1997)

Appeal from a decision of the Unemployment Insurance Appeal Board, filed August 9, 1996, which, upon reconsideration, ruled that claimant was disqualified from receiving unemployment insurance benefits because his employment was terminated due to misconduct.

Claimant was employed as a platform conductor by the New York City Transit Authority when he was discharged for repeatedly striking a passenger on the hand with a flashlight, in violation of the employer's rules that prohibit employees from striking passengers under any circumstances.   The passenger in question was an out-of-State tourist who had inserted her arm between the subway car's doors in an attempt to reopen them after they had slammed shut when she boarded the car, leaving her minor son unattended on the platform.   The Unemployment Insurance Appeal Board ruled that claimant had lost his employment under disqualifying circumstances.   We affirm.   Engaging in a physical assault in the course of one's employment has been found to constitute disqualifying misconduct (see, Matter of Matter of Graham [New York State Elec. & JGas 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) as has the knowing violation of an employer's rules or policy (see, Matter of Rothman [Sweeney], 242 A.D.2d 818, 661 N.Y.S.2d 1025).   We conclude that substantial evidence supports the Board's ruling.   The discrepancy between claimant's testimony regarding the incidents in question and that of the complainant raised issues of credibility which were within the province of the Board to resolve (see, Matter of Thompson [Hudacs], 210 A.D.2d 614, 615, 619 N.Y.S.2d 863).   Claimant's remaining contentions have been reviewed and found to be without merit.

ORDERED that the decision is affirmed, without costs.

MEMORANDUM DECISION.