Matter of Kirk v City of New York

Matter of Kirk v City of New York 2008 NY Slip Op 00037 [47 AD3d 406] January 3, 2008 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, March 12, 2008

In the Matter of Michael Kirk, Petitioner,
v
City of New York et al., Respondents.

—[*1] Watters & Svetkey, LLP, New York City (Jonathan Svetkey of counsel), for petitioner.

Michael A. Cadozo, Corporation Counsel, New York City (Deborah A. Brenner of counsel), for respondents.

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 [*2]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.