Matter of Potter (Commissioner of Labor)

Matter of Potter (Commissioner of Labor) 2013 NY Slip Op 06045 Decided on September 26, 2013 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: September 26, 2013
515779 In the Matter of the Claim of

[*1]JONNIE M. POTTER, Appellant.

and

COMMISSIONER OF LABOR, Respondent.

Calendar Date: July 29, 2013
Before: Rose, J.P., Lahtinen, Spain and Garry, JJ.


Mark S. Moroknek, Syosset, for appellant.
Eric T. Schneiderman, Attorney General, New York
City (Gary Leibowitz of counsel), for respondent.


MEMORANDUM AND ORDER

Appeal from a decision of the Unemployment Insurance Appeal Board, filed November 18, 2011, which ruled that claimant was disqualified from receiving unemployment insurance benefits because her employment was terminated due to misconduct.

Substantial evidence supports the determination of the Unemployment Insurance Appeal Board that claimant, a housing specialist for the employer, was terminated for misconduct. Claimant's lunch was not delivered with an order placed by one of her coworkers, whom she thereafter sought out and berated in a hostile and demeaning fashion. She had been previously disciplined for her unprofessional conduct and, while she complains of the consideration of a document pertaining to those incidents, she waived any issues related thereto by failing to raise them at the hearing (see Matter of Seftel [Commissioner of Labor], 31 AD3d 1011, 1011-1012 [2006]; Matter of Liposki [Citifloral, Inc.-Commissioner of Labor], 284 AD2d 819, 820 [2001]). In any event, our review of the record reveals nothing untoward in the Administrative Law Judge's consideration of the prior incidents, or his overall handling of the hearing. The Board was free to credit the above evidence and, inasmuch as "[c]ontentious or disruptive conduct in the workplace . . . may constitute disqualifying misconduct," we perceive no reason to disturb its decision (Matter of Daley [Mount Sinai Hosp.-Commissioner of Labor, 3 AD3d 643, 643 [2004]; accord Matter of Fitzgerald [Commissioner of Labor], 73 AD3d 1375, 1375 [2010], lv denied 15 NY3d 705 [2010]).

Claimant's remaining arguments have been considered and found to lack merit. [*2]

Rose, J.P., Lahtinen, Spain and Garry, JJ., concur.

ORDERED that the decision is affirmed, without costs.