IN RE: the Claim of Ubahi SANTANA (1999)

Appeal from a decision of the Unemployment Insurance Appeal Board, filed May 2, 1997, which ruled that claimant was disqualified from receiving unemployment insurance benefits because his employment was terminated due to misconduct.

 After arguing with a co-worker over the volume on a radio, claimant threatened the co-worker with an object wrapped in a towel which appeared to be a knife.   Claimant was thereafter discharged and his application for unemployment insurance benefits was denied.   Substantial evidence supports the decision of the Unemployment Insurance Appeal Board that claimant lost his job due to disqualifying misconduct.   Threatening behavior toward a co-worker has been held to constitute misconduct (see, Matter of Quinones [Tops Markets-Commissioner of Labor], 251 A.D.2d 743, 674 N.Y.S.2d 443;  Matter of Marcus [Sweeney], 235 A.D.2d 886, 652 N.Y.S.2d 1019).   Claimant's exculpatory explanation for his conduct merely created a credibility issue for the Board to resolve (see, Matter of Gibson [Commissioner of Labor], 250 A.D.2d 906, 672 N.Y.S.2d 531).   Furthermore, we find no error in the Administrative Law Judge permitting the co-worker who was the victim of the threat to testify via telephone inasmuch as the record reveals that claimant did not object and was afforded the opportunity to cross-examine the co-worker (see, Matter of Hoffman [Roberts], 138 A.D.2d 785, 525 N.Y.S.2d 423, lv. dismissed 77 N.Y.2d 987, 571 N.Y.S.2d 910, 575 N.E.2d 396).

ORDERED that the decision is affirmed, without costs.

MEMORANDUM DECISION.