IN RE: the Claim of James F. BENTON

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

IN RE: the Claim of James F. BENTON, Appellant. Avon Injected Rubber & Plastics Inc., Respondent. Commissioner of Labor, Respondent.

Decided: January 27, 2000

Before:  CARDONA, P.J., MERCURE, CREW III, PETERS and SPAIN, JJ. James F. Benton, Lockport, appellant in person. Damon & Morey (Melinda G. Di Sare of counsel), Buffalo, for Avon Injected Rubber & Plastics Inc., respondent.

Appeals (1) from a decision of the Unemployment Insurance Appeal Board, filed June 17, 1999, which ruled that claimant was disqualified from receiving unemployment insurance benefits because his employment was terminated due to misconduct, and (2) from a decision of said Board, filed August 31, 1999, which, upon reconsideration, adhered to its prior decision.

Claimant was discharged from his employment after fighting with a co-worker during work hours.   Substantial evidence supports the decision of the Unemployment Insurance Appeal Board that claimant was disqualified from receiving benefits because he lost his employment due to misconduct.   Claimant's contention that he was not the aggressor, but rather the victim of an assault, presented a credibility issue for the Board to resolve (see, Matter of Kahn [Commissioner of Labor], 249 A.D.2d 669, 671 N.Y.S.2d 203).   In any event, fighting with a co-worker, regardless of who initiated it, may constitute disqualifying misconduct (see, Matter of Williams [National School Bus Serv.-Commissioner of Labor], 257 A.D.2d 839, 685 N.Y.S.2d 812).

ORDERED that the decisions are affirmed, without costs.

MEMORANDUM DECISION.

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