IN RE: the Claim of Felicita MORALES

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

IN RE: the Claim of Felicita MORALES, Appellant. Commissioner of Labor, Respondent.

Decided: February 25, 2010

Before:  CARDONA, P.J., PETERS, ROSE, KAVANAGH and McCARTHY, JJ. Mirkin & Gordon, P.C., Great Neck (E. Lisa Forte of counsel), for appellant. Andrew M. Cuomo, Attorney General, New York City (Gary Leibowitz of counsel), for respondent.

Appeal from a decision of the Unemployment Insurance Appeal Board, filed September 15, 2008, which ruled that claimant was disqualified from receiving unemployment insurance benefits because her employment was terminated due to misconduct.

Claimant, a community associate for the New York City Housing Authority, was charged with misconduct stemming from a confrontation with her supervisor.   Following a disciplinary hearing held pursuant to Civil Service Law § 75, the Trial Officer sustained the charge, finding that claimant yelled at her supervisor, pulled the telephone away from her and did not leave the supervisor's office when told to do so.   Thereafter, claimant was discharged from her employment.

Claimant subsequently applied for unemployment insurance benefits.   The Unemployment Insurance Appeal Board disqualified her from receiving benefits on the ground that her employment was terminated due to misconduct.   Claimant appeals.

Inasmuch as the record establishes that “claimant had a full and fair opportunity to litigate the issue of misconduct at the disciplinary hearing, the Board properly accorded collateral estoppel effect to the [Trial] Officer's factual findings” (Matter of Sona [Commissioner of Labor], 13 A.D.3d 799, 799, 785 N.Y.S.2d 617 [2004] ).   We are unpersuaded by claimant's contention that application of collateral estoppel is precluded herein because she is purportedly appealing the disciplinary determination (see Samhammer v. Home Mut. Ins. Co. of Binghamton, 120 A.D.2d 59, 64, 507 N.Y.S.2d 499 [1986] ).   Furthermore, the record establishes that the Board drew its own conclusion that claimant's disrespectful and insubordinate behavior constituted disqualifying misconduct (see Matter of Davis [Commissioner of Labor], 64 A.D.3d 1057, 1058, 884 N.Y.S.2d 275 [2009], lv. denied --- N.Y.3d ----, 2010 WL 547646 [2010];  Matter of Agran [Commissioner of Labor], 54 A.D.3d 479, 480, 863 N.Y.S.2d 295 [2008] ).   In view of this, we find no reason to disturb the Board's decision.

ORDERED that the decision is affirmed, without costs.



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