In the Matter of the Claim of Therian Green, Respondent. Eastman Kodak Company, Appellant; Thomas F. Hartnett, as Commissioner of Labor, Respondent

In the Matter of the Claim of Therian Green, Respondent. Eastman Kodak Company, Appellant; Thomas F. Hartnett, as Commissioner of Labor, Respondent. [MAJORITY] — Appeal from a decision of the Unemployment Insurance Appeal Board, filed April 24, 1991, which ruled that claimant was entitled to receive unemployment insurance benefits. The basis for claimant’s termination was his failure to successfully complete a drug rehabilitation program. As the Administrative Law Judge noted, however, there was no evidence of any willful failure to cooperate with the treatment program. Although the employer’s policy was that an employee could be disciplined if rehabilitation was not successful, a failure to comply with an employer’s rules does not necessarily constitute misconduct disqualifying a claimant from receiving benefits (see, Matter of Figueroa [Levine], 50 AD2d 998; Matter of Poss [Levine] 49 AD2d 288) and the question of whether termination arose from misconduct is a factual one for the Unemployment Insurance Appeal Board to resolve (see, Matter of Nunes [Roberts], 98 AD2d 934). Therefore, given the facts of this case, the conclusion by the Board that claimant’s failure to successfully complete the program did not establish misconduct on his part is supported by substantial evidence and must be upheld. Mahoney, P. J., Casey, Weiss, Levine and Harvey, JJ., concur. Ordered that the decision is affirmed, without costs.