In re the Claim of Pluckhan

Casey, J. (dissenting).

It is well settled that repeated failure to comply with an employer’s attendance policy, as was the case herein, constitutes disqualifying misconduct (see, e.g., Matter of McCoy [Sweeney], 235 AD2d 879). As the majority correctly notes, however, alcoholism can constitute an excuse from what would otherwise be disqualifying misconduct if there is substantial evidence to show that the claimant is an *999alcoholic, the alcoholism caused the behavior leading to the claimant’s discharge and the claimant is available for and able to work (see, Matter of Allen [United States Dept. of Interior—Hartnett], 162 AD2d 753, 754). We find claimant’s failure to satisfy the second of these elements fatal to her claim for benefits and, therefore, respectfully dissent.

Although claimant may be an alcoholic, the evidence fails to support her contention that alcoholism specifically caused her multiple attendance violations, including her final incident of tardiness on September 26, 1994 which resulted in her termination. Rather, claimant’s testimony indicates that on the day of her discharge she was two hours late because she did not realize that she was scheduled to work an earlier shift. Moreover, claimant never attempted to excuse her previous instances of tardiness and absences as the result of alcoholism. Inasmuch as the record is devoid of “any specific occurrences where claimant’s drinking problem caused [her] absences” (Matter of Moore [County of Monroe—Hartnett], 144 AD2d 123, 125) and claimant herself did not attribute her tardiness on her last day to this problem, we find that claimant’s alcoholism cannot constitute an excuse for her disqualifying misconduct. Having so concluded, there is no reason to remit the matter to the Unemployment Insurance Appeal Board to address the issue of whether claimant was available for and capable of employment. We would, therefore, affirm the decision of the Board.

Crew III, J., concurs. Ordered that the decision is withheld, and matter remitted to the Unemployment Insurance Appeal Board for further proceedings not inconsistent with this Court’s decision.