In re the Claim of Garcia , 453 N.Y.S.2d 77 ( 1982 )

Appeal from a decision of the Unemployment Insurance Appeal Board, filed May 12,1981, which sustained the decision of the Administrative Law Judge modifying the determination of the Industrial Commissioner and disqualifying claimant from unemployment benefits because of misconduct. Claimant was employed by the FHA Steel Corporation as a helper in making steql doors and frames. Claimant was involved in an argument with his co-worker who blamed claimant for work errors because of his failure to follow instructions. The Industrial Commissioner disqualified claimant for failing to follow work orders after being previously advised. The board, on the other hand, found that claimant threatened to swing at the co-worker and found this act to be the misconduct for which he was terminated. There is substantial evidence to support the determination of the board which should be affirmed. The Attorney-General, citing Matter of Drew (Ross) (80 AD2d 958), has abstained from support of the board’s finding on the rationale that claimant cannot be denied benefits on grounds other than those propounded by the Industrial Commissioner. We find Drew (supra) inapplicable in this instance. Unlike in Drew, the finding of misconduct by the commissioner and the board here was based on the same incident. Claimant was given full opportunity to be heard on all aspects of the dispute with his co-worker. The board’s imputing of misconduct to claimant’s threats to his coemployee as grounds for disqualification rather than his failure to follow orders, does not impair the validity of its finding. Claimant’s rights were not prejudiced under these circumstances. Decision affirmed, without costs. Mahoney, P. J., Kane, Main, Mikoll and Yesawich, Jr., JJ., concur.