Andrew Blitzer v New York City Transit Authority

Blitzer v New York City Tr. Auth. 2004 NY Slip Op 08151 [12 AD3d 222] November 16, 2004 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 19, 2005

Andrew Blitzer, Appellant,
v
New York City Transit Authority, Respondent.

—[*1]

Order, Supreme Court, New York County (Robert D. Lippmann, J.), entered February 28, 2003, which granted defendant's motion to dismiss the complaint, unanimously affirmed, without costs.

The complaint fails to state a claim for either gender or disability discrimination in the hiring process. The assertion that plaintiff was a member of a protected subclass of "attractive males" failed to identify a recognized class protected by statute (see generally Kent v Papert Cos., 309 AD2d 234 [2003]).

Plaintiff has failed to state a claim for disability discrimination predicated on his hypoglycemia and past drug use. Having been formally rejected for the position for failure to meet the "medical and/or physical requirements" for the job, he failed to allege that his admitted disabilities would not prevent him from performing the duties of subway conductor in a reasonable manner (see Executive Law § 292 [21]).

The complaint also failed to state a claim for breach of contract. Nowhere did plaintiff allege or show that he had actually received an appointment to the position of conductor. Simply passing a qualifying test, without more, does not create a contractual right to the position (see Matter of Andriola v Ortiz, 82 NY2d 320 [1993], cert denied sub nom. Andriola v Antinoro, 511 US 1031 [1994]).

We have considered plaintiff's remaining arguments and find them unavailing. Concur—Buckley, P.J., Tom, Andrias, Saxe and Marlow, JJ.