Kirk v. City of New York

47 A.D.3d 406, 848 N.Y.S.2d 169

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 3, 2008
• Status: Published

Opinion

Determination of respondent Fire Department’s Commissioner, dated May 22, 2006, terminating petitioner’s employment as a firefighter, unanimously confirmed, the petition denied, and this proceeding (transferred to this Court by order of Supreme Court, New York County [Rolando T. Acosta, J.], entered March 22, 2007), dismissed, without costs.

Petitioner tested positive for cocaine during a random drug test, and the Fire Department terminated his employment. Such determination was supported by substantial evidence (see Matter of Powell v City of Newburgh, 284 AD2d 334 [2001], lv denied 96 NY2d 720 [2001]; Matter of Gibson v Koehler, 165 AD2d 768 [1990]). Petitioner’s contention that the Department’s random drug testing policy is unconstitutional is without merit (see Matter of Seelig v Koehler, 76 NY2d 87 [1990], cert denied 498 US 847 [1990]), and the penalty of termination for substance abuse does not shock the conscience (Matter of Reinhard v City of New York, 34 AD3d 376, 378 [2006], lv denied 8 NY3d 808 [2007]).

Although alcohol dependency qualifies as a disability under the Human Rights Law (Executive Law § 292 [21]; see Matter of McEniry v Landi, 84 NY2d 554 [1994]), drug abuse does not (Gilmore v University of Rochester Strong Mem. Hosp. Div., 384 F Supp 2d 602 [WD NY 2005]; and see Weinstock v Columbia Univ., 224 F3d 33, 42 n 1 [2d Cir 2000]). Petitioner failed to establish that his drug abuse was causally related to his alcoholism, and thus did not state a prima facie case of employment discrimination under Executive Law § 296 (1). Concur—Tom, J.P, Andrias, Gonzalez and Sweeny, JJ.