
    In the Matter of the Claim of Martin F. Opoka, Jr., Appellant. John E. Sweeney, as Commissioner of Labor, Respondent.
    [647 NYS2d 874]
   —Appeal from a decision of the Unemployment Insurance Appeal Board, filed May 24, 1995, which ruled that claimant was disqualified from receiving unemployment insurance benefits because his employment was terminated due to misconduct.

Claimant worked for the employer as a management information specialist for 61/2 years. Following his conviction of the crime of driving while intoxicated, claimant was unavailable to report to work for 58 days because he was incarcerated in the local jail, as a result of which he was terminated from his position. The Board disqualified claimant from receiving unemployment insurance benefits on the basis that he was terminated for misconduct. Claimant appeals, arguing that he is afflicted with the disease of alcoholism which, in turn, caused him to commit the criminal offense and, therefore, he did not engage in disqualifying misconduct.

"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; see, Matter of Allen [United States Dept. of Interior—Hartnett], 162 AD2d 753, 754; Matter of Moore [County of Monroe—Hartnett], 144 AD2d 123, 124). Claimant, however, could not satisfy all of the foregoing criteria because his incarceration precluded him from being available for work. Consequently, we reject his claim that his alcoholism excused his behavior and find that substantial evidence supports the Board’s decision that claimant was terminated for misconduct.

Cardona, P. J., Mikoll, Crew III, White and Peters, JJ., concur. Ordered that the decision is affirmed, without costs.  