Matter of Harris (Commissioner of Labor)

Matter of Harris (Commissioner of Labor) 2014 NY Slip Op 00699 Decided on February 6, 2014 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: February 6, 2014
515026 In the Matter of the Claim of

[*1]ROGER L. HARRIS, Appellant.

and

COMMISSIONER OF LABOR, Respondent.

Calendar Date: January 2, 2014
Before: Peters, P.J., Stein, Rose and Egan Jr., JJ.


Roger L. Harris, Schenectady, appellant pro se.
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 October 19, 2011, which ruled that claimant was disqualified from receiving unemployment insurance benefits because his employment was terminated due to misconduct.

Substantial evidence supports the decision of the Unemployment Insurance Appeal Board which ruled that claimant, a probationary correction officer, lost his employment due to disqualifying misconduct. The record establishes that claimant was involved in an altercation outside a bar and, after the police arrived and viewed a videotape of the incident, claimant was arrested for assault. Although claimant asserts that he was acting in self-defense, testimony at the hearing established that retreat from the situation was possible. Furthermore, any conflict in the testimony created a credibility issue for the Board to resolve (see Matter of Liebman [Commissioner of Labor], 20 AD3d 858, 858-859 [2005]). As the record supports the Board's finding that claimant was aware of and violated the employer's code of conduct prohibiting the use of unnecessary physical force, the decision will not be disturbed (see e.g. Matter of Ferri [Wynantskill Union Free School Dist.—Commissioner of Labor], 45 AD3d 1101, 1102 [2007]; Matter of Jones [Commissioner of Labor], 285 AD2d 801, 801 [2001]).

Claimant's remaining contentions have been reviewed and are either without merit or not properly before this Court.

Peters, P.J., Stein, Rose and Egan Jr., JJ., concur.

ORDERED that the decision is affirmed, without costs.