MATTER OF NAT'L BASKETBALL ASS'N v. New York State Div. of Human Rights

New York Court of Appeals

MATTER OF NAT'L BASKETBALL ASS'N v. New York State Div. of Human Rights

496 N.E.2d 222, 68 N.Y.2d 644, 505 N.Y.S.2d 63, 1986 N.Y. LEXIS 19039, 41 Empl. Prac. Dec. (CCH) 36,581

CourtNew York Court of Appeals

DecidedJune 10, 1986

StatusPublished

Cited by6 cases

This text of 496 N.E.2d 222 (MATTER OF NAT'L BASKETBALL ASS'N v. New York State Div. of Human Rights) is published on Counsel Stack Legal Research, covering New York Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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MATTER OF NAT'L BASKETBALL ASS'N v. New York State Div. of Human Rights, 496 N.E.2d 222, 68 N.Y.2d 644, 505 N.Y.S.2d 63, 1986 N.Y. LEXIS 19039, 41 Empl. Prac. Dec. (CCH) 36,581 (N.Y. 1986).

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Opinion

OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs. We agree with the Appellate Division that under the circumstances of this case complainant did not establish prima facie "that he was physically fit to fully perform as a professional basketball referee”. Although a doctor’s report which does not give the basis of his opinion is admissible (CPLR 4515) and such a report in affirmation form (CPLR 2106) may constitute substantial evidence even though the doctor is not called by complainant (People ex rel. Vega v Smith, 66 NY2d 130, 139-140; Matter of Eagle v Paterson, 57 NY2d 831), the affirmation of Dr. Unger submitted by complainant was received by the Administrative Law Judge under the limitation that it "would not establish * * * any ultimate fact by itself’. In light of that ruling, petitioner cannot be faulted for not requesting that the doctor be called as a witness (CPLR 4515; State Administrative Procedure Act § 304; Matter of Eagle v Paterson, supra) so that he could be cross-examined.

Concur: Chief Judge Wachtler and Judges Meyer, Simons, *647 Alexander, Titone and Hancock, Jr. Taking no part: Judge Kaye.

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OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs. We agree with the Appellate Division that under the circumstances of this case complainant did not establish prima facie "that he was physically fit to fully perform as a professional basketball referee”. Although a doctor’s report which does not give the basis of his opinion is admissible (CPLR 4515) and such a report in affirmation form (CPLR 2106) may constitute substantial evidence even though the doctor is not called by complainant (People ex rel. Vega v Smith, 66 NY2d 130, 139-140; Matter of Eagle v Paterson, 57 NY2d 831), the affirmation of Dr. Unger submitted by complainant was received by the Administrative Law Judge under the limitation that it "would not establish * * * any ultimate fact by itself’. In light of that ruling, petitioner cannot be faulted for not requesting that the doctor be called as a witness (CPLR 4515; State Administrative Procedure Act § 304; Matter of Eagle v Paterson, supra) so that he could be cross-examined.

Concur: Chief Judge Wachtler and Judges Meyer, Simons, *647 Alexander, Titone and Hancock, Jr. Taking no part: Judge Kaye.

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Bluebook (online)

496 N.E.2d 222, 68 N.Y.2d 644, 505 N.Y.S.2d 63, 1986 N.Y. LEXIS 19039, 41 Empl. Prac. Dec. (CCH) 36,581, Counsel Stack Legal Research, https://law.counselstack.com/opinion/matter-of-natl-basketball-assn-v-new-york-state-div-of-human-rights-ny-1986.

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