In re the Claim of Sweeny

Appeal from a decision of the Unemployment Insurance Appeal Board, filed May 7, 2004, which ruled that claimant was disqualified from receiving unemployment insurance benefits because his employment was terminated due to misconduct. In May 2003, pursuant to a “last chance” employment agreement, claimant was discharged from his employment as a sanitation worker after testing positive for alcohol in his system at work. Following a hearing at which claimant alleged that he was an alcoholic, an Administrative Law Judge ruled that claimant was disqualified from receiving unemployment insurance benefits due to misconduct. That determination was upheld by the Unemployment Insurance Appeal Board and claimant now appeals. “Alcoholism can excuse disqualifying misconduct if there is substantial evidence to show that an employee is an alcoholic, that the alcoholism caused the behavior leading to the employee’s discharge and that the employee was available for and capable of work” (Matter of Snell [General Motors Corp.— Hudacs], 195 AD2d 746, 747 [1993] [citations omitted]; see Matter of Moore [County of Monroe—Hartnett], 144 AD2d 123, 124 [1988]). While medical evidence is not necessary to prove that claimant suffered from alcoholism, there is nevertheless insufficient evidence in the record here of the “outward behavioral and physiological indicia of alcoholism” that is required to 1246 excuse claimant’s misconduct (Matter of Moore [County of Monroe—Hartnett], supra at 124; see Matter of Francis [New York City Human Resources Admin.—Ross], 56 NY2d 600, 602 [1982]). Accordingly, we find no basis upon which to disturb the Board’s decision. Cardona, P.J., Mercure, Spain, Lahtinen and Kane, JJ., concur. Ordered that the decision is affirmed, without costs.