IN RE: the Claim of Audrey NICOTRA

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Supreme Court, Appellate Division, Third Department, New York.

IN RE: the Claim of Audrey NICOTRA, Appellant. BryLin Hospitals Inc., Respondent. Commissioner of Labor, Respondent.

Decided: April 30, 1998

Before CARDONA, P.J., and MIKOLL, MERCURE, CREW and CARPINELLO, JJ. Audrey Nicotra, Buffalo, appellant in person. BryLin Hospitals Inc. (Karen D. Tunis-Manny, of counsel), Buffalo, for BryLin Hospitals Inc., respondent. Dennis C. Vacco, Attorney General (Norman Uris, of counsel), New York City, for Commissioner of Labor, respondent.

Appeal from a decision of the Unemployment Insurance Appeal Board, filed May 9, 1997, which ruled that claimant was disqualified from receiving unemployment insurance benefits because her employment was terminated due to misconduct.

 Claimant worked as a telephone switchboard operator for a private psychiatric drug and alcohol treatment hospital until she was discharged following repeated complaints that she used vulgar and derogatory language at her workstation, which was adjacent to the patient waiting area.   In our view, substantial evidence supports the Unemployment Insurance Appeal Board's determination that claimant was disqualified from receiving benefits because her employment was terminated due to misconduct.   It is well settled that “[t]he use of vulgar language and disrespectful conduct toward supervisors constitutes disqualifying misconduct” (Matter of Stagno [Sweeney], 239 A.D.2d 766, 767, 657 N.Y.S.2d 480, 481), especially in cases such as this one where the claimant had previously been admonished to refrain from such conduct (see, Matter of Agis [Sweeney], 242 A.D.2d 819, 661 N.Y.S.2d 1024).   The credibility issues presented by the conflicting testimony were within the province of the Board to resolve (see, id.).

ORDERED that the decision is affirmed, without costs.

MEMORANDUM DECISION.

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