In re the Claim of Cochran (172 A.D.2d 943, 1991)

Appeal from a decision of the Unemployment Insurance Appeal Board, filed March 1, 1990, which ruled that claimant was entitled to receive unemployment insurance benefits.

The Unemployment Insurance Appeal Board reversed the Administrative Law Judge, who had found that certain comments made by claimant to his supervisor amounted to insubordination and constituted misconduct. The differing versions of the confrontation created only questions of fact for the Board to resolve (see, Matter of Brewer [Levine], 53 AD2d 751). The Board found that claimant’s statements were mistakenly construed as a threat and that claimant was therefore eligible to receive benefits. Under the circumstances, the conclusion that claimant’s actions did not rise to the level of misconduct is supported by substantial evidence and the decision in claimant’s favor must be upheld (see, Matter of Garcia [Hallen Plastics Corp.—Roberts] 104 AD2d 675, 676-677).

Decision affirmed, without costs. Mahoney, P. J., Weiss, Mikoll, Crew III and Harvey, JJ., concur.