56 N.Y.2d 600 | NY | 1982
OPINION OF THE COURT
Memorandum.
The order of the Appellate Division should be reversed, with costs, and the matter remitted to the Appellate Division with directions to remand to the Unemployment Insurance Appeal Board for determination of claimant’s eligibility pursuant to section 527 of the Labor Law, as directed by the board.
The appeal board, having reached the conclusion that petitioner was an alcoholic, acted within its discretion in denominating his discharge to be the result of his illness, rather than his own misconduct. (Cf. Matter of James [Levine], 34 NY2d 491.)
Thus, while the claimant is not automatically barred from qualifying for unemployment insurance benefits, the matter must be remitted to the Appellate Division with directions to remand to the Unemployment Insurance Appeal Board for determination as to claimant’s “availability for, and capability of employment” pursuant to section 527 of the Labor Law.
Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur.
Order reversed, with costs, and matter remitted to the Appellate Division, Third Department, with directions to remand to the Unemployment Insurance Appeal Board for further proceedings in accordance with the memorandum herein.