In the Matter of the Claim of Barry J. Kahn, Appellant. Commissioner of Labor, Respondent

In the Matter of the Claim of Barry J. Kahn, Appellant. Commissioner of Labor, Respondent. [671 NYS2d 203] [MAJORITY] —Appeal from a decision of the Unemployment Insurance Appeal Board, filed February 10, 1997, which, inter alia, ruled that claimant was disqualified from receiving unemployment insurance benefits because his employment was terminated due to misconduct. Claimant was employed as a truck driver for a meat distributor until he was discharged for physically assaulting a coworker during working hours. Prior thereto, he had received warnings regarding his conduct following complaints from his employer’s customers and, shortly before the incident in question, had received a final warning from the employer that his involvement in any future altercations would result in his dismissal. The Unemployment Insurance Appeal Board ruled that claimant had lost his employment under disqualifying circumstances, charging him with a recoverable overpayment. Substantial evidence supports the finding that claimant participated in a fight with a co-worker, behavior that has repeatedly been construed as disqualifying misconduct (see, Matter of Perry [Sweeney], 222 AD2d 924; Matter of Redjepi [Hudacs], 210 AD2d 727, 728), especially in cases where, as here, the claimant has been admonished to refrain from such conduct (see, Matter ofAgis [Sweeney], 242 AD2d 819). We note that claimant’s contention that he was not the aggressor, but rather the victim of the assault, presented a credibility issue for the Board to resolve (see, Matter of Friedland [Sweeney], 237 AD2d 765). We conclude that the benefits received by claimant were properly deemed recoverable. Mikoll, J. P., Crew III, White, Yesawich Jr. and Spain, JJ., concur. Ordered that the decision is affirmed, without costs.