                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: March 26, 2015                    518275
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In the Matter of the Claim of
   JEFFREY S. MONIZ,
                    Respondent.

NUCOR STEEL AUBURN, INC.,                   MEMORANDUM AND ORDER
                    Appellant.

COMMISSIONER OF LABOR,
                    Respondent.
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Calendar Date:   February 11, 2015

Before:   McCarthy, J.P., Egan Jr., Devine and Clark, JJ.

                             __________


      Hodgson Russ, LLP, Buffalo (Kyle C. Reeb of counsel) and
Alaniz Schraeder Linker Farris & Mayes, LLP, Houston, Texas (Lisa
M. Guerra admitted pro hac vice), for appellant.

     Bruce E. Knoll, Albany, for Jeffrey S. Moniz, respondent.

                             __________


Clark, J.

      Appeal from a decision of the Unemployment Insurance Appeal
Board, filed April 15, 2013, which ruled that claimant was
entitled to receive unemployment insurance benefits.

      Claimant and his wife worked for the employer and, in
December 2011, both attended an after hours birthday party at a
bar. His wife had recently been suspended for misconduct and one
of her accusers, who was a coworker, was at the party. Claimant
assaulted the coworker, although there is a dispute as to whether
he did so for work-related or personal reasons. After learning
of the incident, the employer terminated claimant for violating
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its policy prohibiting fighting. Claimant thereafter applied for
unemployment insurance benefits, and the Unemployment Insurance
Appeal Board ultimately found that he was entitled to them.
Specifically, the Board noted that claimant's behavior did not
constitute disqualifying misconduct because, regardless of why he
attacked the coworker, the employer's policy barring fighting did
not apply given the time and place of the attack. The employer
now appeals.

      We reverse. "Fighting with a coworker, regardless of who
initiates the confrontation, has been held to constitute
misconduct disqualifying a claimant from receiving unemployment
insurance benefits" (Matter of Jones [Commissioner of Labor], 100
AD3d 1134, 1134 [2012] [citations omitted]; accord Matter of Mark
[Commissioner of Labor], 105 AD3d 1245, 1245 [2013]). Claimant,
moreover, was aware that the employer considered fighting to be a
major infraction and that it could result in his termination. It
is true that the fight occurred at a bar outside of work hours
but, in that regard, a claimant is disqualified from receiving
benefits whenever his or her misconduct occurs "in connection
with" his or her employment (Labor Law § 593 [3]; see e.g. Matter
of Sinker [Sweeney], 89 NY2d 485, 488 [1997]). Claimant was
accordingly obliged, "even during his off-duty hours, to honor
the standards of behavior which his employer has a right to
expect of him and . . . he may be denied unemployment benefits as
a result of misconduct in connection with his work if he fails to
live up to this obligation" (Matter of Markowitz [New York City
Human Resources Admin.–Roberts], 94 AD2d 155, 156 [1983];
see Matter of Punter [Ross], 43 NY2d 743, 744 [1977]; Matter of
Caryl [Morton Salt Div. of Morton Thiokol–Roberts], 96 AD2d 989,
990 [1983]). Therefore, the relevant question is not where or
when the attack occurred, but whether it was connected to
claimant's employment (see Matter of Haft [Hartnett], 174 AD2d
950, 951 [1991]; cf. Matter of Rivera [Fairchild Republic
Co.–Roberts], 96 AD2d 1115, 1115 [1983], appeal dismissed 63 NY2d
952 [1984] [attack upon an umpire during an employee softball
game held not to be disqualifying misconduct]). Inasmuch as "the
Board failed to address this relevant issue, its decision must be
reversed and the matter remitted for further development of the
record" (Matter of Panek [City of Syracuse–Roberts], 111 AD2d
466, 466-467 [1985]; see Matter of Montauk Improvement v
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Proccacino, 41 NY2d 913, 914 [1977]).

     McCarthy, J.P., Egan Jr. and Devine, JJ., concur.



      ORDERED that the decision is reversed, without costs, and
matter remitted to the Unemployment Insurance Appeal Board for
further proceedings not inconsistent with this Court's decision.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
