IN RE: the Claim of Barry J. KAHN (1998)

Appeal from a decision of the Unemployment Insurance Appeal Board, filed February 10, 1997, which, inter alia, ruled that claimant was disqualified from receiving unemployment insurance benefits because his employment was terminated due to misconduct.

Claimant was employed as a truck driver for a meat distributor until he was discharged for physically assaulting a co-worker during working hours.   Prior thereto, he had received warnings regarding his conduct following complaints from his employer's customers and, shortly before the incident in question, had received a final warning from the employer that his involvement in any future altercations would result in his dismissal.   The Unemployment Insurance Appeal Board ruled that claimant had lost his employment under disqualifying circumstances, charging him with a recoverable overpayment.   Substantial evidence supports the finding that claimant participated in a fight with a co-worker, behavior that has repeatedly been construed as disqualifying misconduct (see, Matter of Perry [Sweeney], 222 A.D.2d 924, 635 N.Y.S.2d 364;  Matter of Redjepi [Hudacs], 210 A.D.2d 727, 728, 620 N.Y.S.2d 182), especially in cases where, as here, the claimant has been admonished to refrain from such conduct (see, Matter of Agis [Sweeney], 242 A.D.2d 819, 661 N.Y.S.2d 1024).   We note that claimant's contention that he was not the aggressor, but rather the victim of the assault, presented a credibility issue for the Board to resolve (see, Matter of Friedland [Sweeney], 237 A.D.2d 765, 655 N.Y.S.2d 456).   We conclude that the benefits received by claimant were properly deemed recoverable.

ORDERED that the decision is affirmed, without costs.

MEMORANDUM DECISION.