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.

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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.

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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