IN RE: the Claim of Robert J. MUSAC

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

IN RE: the Claim of Robert J. MUSAC, Appellant. Commissioner of Labor, Respondent.

Decided: April 24, 2008

Before:  CARDONA, P.J., PETERS, CARPINELLO, LAHTINEN and KAVANAGH, JJ. Robert J. Musac, West Babylon, appellant pro se. Andrew M. Cuomo, Attorney General, New York City (Mary Hughes of counsel), for respondent.

Appeal from a decision of the Unemployment Insurance Appeal Board, filed December 29, 2006, which ruled that claimant was disqualified from receiving unemployment insurance benefits because his employment was terminated due to misconduct.

 Substantial evidence supports the Unemployment Insurance Appeal Board's decision ruling that claimant, a jeweler, was discharged from his employment due to disqualifying misconduct-namely, being disruptive and insubordinate in the workplace.   The employer testified that while discussing with claimant his failure to accommodate a customer who had been admitted to the store after hours, claimant “went crazy” on her, yelling, screaming and chasing her around the store.   According to the employer, claimant raised his voice to her approximately one week before this incident, whereupon she warned claimant that any further incidents would result in his discharge.   Although claimant denied receiving this warning, this presented a credibility issue for the Board to resolve (see Matter of Reyna-Bautista [Commissioner of Labor], 45 A.D.3d 1102, 1103, 846 N.Y.S.2d 416 [2007] ).   In any event, claimant conceded that he raised his voice to the employer on the day he was fired and characterized their discussion as “an argument.”   Disruptive, rude or insubordinate behavior has been held to constitute disqualifying misconduct (see Matter of Segarra [Commissioner of Labor], 45 A.D.3d 1146, 846 N.Y.S.2d 677 [2007];  Matter of Mulea [Commissioner of Labor], 23 A.D.3d 753, 754, 803 N.Y.S.2d 286 [2005] ), particularly where, as here, a claimant has been warned regarding similar behavior in the past (see Matter of Cameron [Commissioner of Labor], 15 A.D.3d 722, 788 N.Y.S.2d 701 [2005];  Matter of Williams [Sweeney], 240 A.D.2d 837, 659 N.Y.S.2d 812 [1997] ).   Contrary to claimant's contention, the fact that the employer may have acted in a discourteous manner is of no moment (see Matter of De La Concha [Fordham Univ.-Commissioner of Labor], 271 A.D.2d 851, 852, 705 N.Y.S.2d 736 [2000], lv. denied 95 N.Y.2d 765, 716 N.Y.S.2d 39, 739 N.E.2d 295 [2000] ).

 Finally, claimant acknowledged that he was “fired” but nonetheless indicated when he applied for unemployment insurance benefits that he lost his employment due to “lack of work.”   Under such circumstances, we find no basis upon which to disturb the Board's finding that claimant made a willful false statement to obtain unemployment insurance benefits (see Matter of Attara [Permis Constr. Corp.-Commissioner of Labor], 257 A.D.2d 936, 937, 687 N.Y.S.2d 178 [1999] ).   Claimant's remaining contentions, including his assertion that he had a valid contract of employment, have been examined and found to be lacking in merit.

ORDERED that the decision is affirmed, without costs.

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