In re the Claim of Labayen , 753 N.Y.S.2d 758 ( 2003 )

—Appeal from a decision of the Unemployment Insurance Appeal Board, filed April 23, 2002, which ruled that claimant was disqualified from receiving unemployment insurance benefits because his employment was terminated due to misconduct.

Claimant was discharged from his employment after he violated the employer’s zero tolerance against violence policy by engaging in a physical altercation with a coworker during working hours. Substantial evidence supports the decision of the Unemployment Insurance Appeal Board finding that claimant was disqualified from receiving unemployment insuranee benefits because he lost his employment due to misconduct. It is well settled that fighting with a coworker, regardless of who initiates it, can constitute misconduct (see Matter of Abbondanzo [Commissioner of Labor], 275 AD2d 850, lv denied 96 NY2d 713; Matter of Wray [Commissioner of Labor], 268 AD2d 731). Here, claimant testified that he reacted when the coworker kicked him by grabbing the coworker’s shirt and started pushing and shoving him. Under these circumstances, we find no reason to disturb the Board’s decision.

Cardona, P.J., Crew III, Peters, Carpinello and Lahtinen, JJ., concur. Ordered that the decision is affirmed, without costs.