Opinion
December 23, 1975
Appeal from a decision of the Unemployment Insurance Appeal Board, filed September 25, 1974, which affirmed the decision of a referee sustaining the initial determination of the Industrial Commissioner disqualifying claimant from receiving benefits effective March 23, 1974 because he lost his employment through misconduct in connection therewith. Claimant does not dispute his awareness of his former employer's rule against altercations among employees regardless of provocation, but contends that he did not strike a coemployee as was found by the board to have been the cause for his discharge. His argument is wholly unpersuasive. Substantial evidence supports this finding as it was based upon admissions, eyewitness testimony and circumstantial proof to the effect that claimant, during an argument with a coemployee, struck him with his fist. The injured worker's later account that he slipped and fell was properly rejected on the basis of his credibility and the board's conclusion that claimant's conduct rose to the level of misconduct is amply justified (Matter of James [Levine], 34 N.Y.2d 491; Matter of Errea [Levine], 50 A.D.2d 626). Decision affirmed, without costs. Herlihy, P.J., Sweeney, Kane, Koreman and Larkin, JJ., concur.