In re the Claim of Caldwell , 759 N.Y.S.2d 918 ( 2003 )

—Appeal from a decision of the Unemployment Insurance Appeal Board, filed October 18, 2002, which ruled that claimant was disqualified from receiving unemployment insurance benefits because her employment was terminated due to misconduct.

Claimant was discharged from her employment by the United States Postal Service after she punched a coworker with her fist. The Unemployment Insurance Appeal Board found that claimant was disqualified from receiving unemployment insurance benefits on the ground that she had lost her employment due to misconduct. It is well settled that perpetrating a physical assault during work hours may constitute disqualifying misconduct regardless of who initiated the confrontation (see Matter of Labayen [Commissioner of Labor], 301 AD2d 1014 [2003]; Matter of McCray [Commissioner of Labor], 301 AD2d 1010 [2003], lv denied 100 NY2d 502 [2003]). Notwithstanding claimant’s mitigating explanations, substantial evidence supports the Board’s decision (see Matter of Wray [Commissioner of Labor], 268 AD2d 731 [2000]).

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