Matter of Altieri v City of New York Civ. Serv. Commn.

Matter of Altieri v City of N.Y. Civ. Serv. Commn. 2008 NY Slip Op 09487 [57 AD3d 248] December 4, 2008 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 11, 2009

In the Matter of Anthony Altieri, Appellant,
v
City of New York Civil Service Commission et al., Respondents.

—[*1] Meringolo & Associates, P.C., Brooklyn (Antonino D'Aiuto of counsel), for appellant.

Michael A. Cardozo, Corporation Counsel, New York (Dana B. Morris of counsel), for respondents.

Order and judgment (one paper), Supreme Court, New York County (Walter B. Tolub, J.), entered September 27, 2007, which granted respondents' cross motion to dismiss a CPLR article 78 proceeding seeking to annul respondents' determination disqualifying petitioner from consideration for the position of sanitation worker on medical grounds, unanimously affirmed, without costs.

The proceeding was properly dismissed for lack of allegations sufficient to show that petitioner's cardiac condition does not rationally support the disqualification. In arriving at their determinations, respondents were entitled to rely on the opinion of respondent Department of Sanitation's medical director that petitioner's appointment as a sanitation worker would put him at serious risk. The conflicting opinion of petitioner's treating medical physician does not tend to show that respondent "acted illegally or capriciously or adopted a professional position not founded on a rational basis" (McCabe v Hoberman, 33 AD2d 547, 548 [1969]). In view of the foregoing, petitioner's medical disqualification cannot be the predicate of a discrimination claim under Executive Law § 296 (1) (a) (see Bellamy v City of New York, 14 AD3d 462 [2005]; O'Sullivan v City of New York, 38 AD3d 467, 469 [2007], lv denied 9 NY3d 804 [2007]). Concur—Mazzarelli, J.P., Friedman, Gonzalez, Buckley and Sweeny, JJ.