Matter of Herrera v Kelly

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Matter of Herrera v Kelly 2013 NY Slip Op 32517(U) October 15, 2013 Supreme Court, New York County Docket Number: 100941/13 Judge: Donna M. Mills Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. SCANNED ON 10/18/2013 [* 1] PRESENT : DONNA M. MILLS. PAR'f 58 -~--- Justice In the Matter of the Application of FREDDY HERRERA, Index No. Pe(itiorn~r, MotroNDATE For a Judgment Pursuant to Article 78 of the Civil Practice ·. · Law and Rules -against: 100941/13 --~-- MQTION SEQ; No. ()Qj, CITY OF NEW YORK, et al., The following papers, numbere.d 1 to. were read onthi~.motionc,---.-~---~~ PAPERS NUMBERED Notice of Motion/Order to Show Cause:..Affidavits- Exhibits'.... ·. · ¢. . · I ;3 ·. . ·· . .q C · . . . · . . ...·J\)OG~ county C\erK · · .· · .· ¢ .. . · ~\~:red by tt'F d nereon. :tot ·.· ···.. · ·· · . . · · not · . ·· · · ed oase · e rnuS" · . ' . . . ~· d rnent nas . .·. .·. ot be set\/ . resentatrv . ¢.. rn... ·. 1h\S ~u .··~ .bi efl\rj cann ·. utnorii;edrep ~·s oes\<. \R.<llQ ¢... . . . and t10\1~ . couiisffi of a o ment c~ ·. .. .· . . . .... ·. / . ¢ · ¢· . obta,.\n e!'try, rs<:>n at·t~e Ju 9, . .Jti ¢· ..,. ·. :>,, _LL_YES 'at>Pliik: \N~ ar .· ~ . . . ,. II' .. ' ' . . . Answering Affidavits- Exhibits ReplyingAffidavits , · CROSS-MOTION: . . ". . '\4~6). . . ,. . ..,,Ml. ,,,,, Upon the foregomg papers, it is ordered that this mtftion is: ~ . ,,........ .. - DECIDED IN ACCORDANCE WITH ATTACHED DECISION AND ORDER. Dated: Check one: /o f1~/ 13 I ·~INAL DISPOSITION DONNA M!tvnlLS, J.S.C. NON-FINAL DISPOSITION [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: IAS PART 58 ------------------------------------------------------------------>< In the Matter of the Application of FREDDY HERRERA, Petitioner, For a Judgment under Article 78 of the Civil Practice Law and Rules. Index No. 100941/13 -againstRAYMOND W. KELLY, COMMISSIONER, NEW YORK CITY POLICE DEPARTMENT, CITY OF NEW YORK CIVIL SERVICE COMMISSION, and THE CITY OF NEW YORK, Respondents. ------------------------------------------------------------------>< DONNA M. MILLS, J.: In this Article 78 proceeding, petitioner Freddy Herrera ("Petitioner") seeks a judgment vacating the determination of respondents Raymond Kelly, Police Commissioner of the City of New York, City of New York Civil Service Commission ("Commission") and The City of New York (collectively "Respondents") which medically disqualified the Petitioner from consideration for the position of police officer under Examination Number 0310. Petitioner alleges that the Respondents' decision to medically disqualify him from consideration violated the New York State Human Rights Law, New York Executive Law§§ 290 et. seq. ("NYSHRL"). Respondents now crossmove to dismiss the petition pursuant to CPLR § 704(f), and Rules 3211 (a)(S) and 3211 (a)(7) on the grounds that the petition is barred by the applicable four-month statute of limitations, and otherwise fails to state a cause of action. BACKGROUND Petitioner applied for the position of police officer with the New York Police [* 3] -- - - ¢- -- - - --- - ---- - ----- -- -- -- -- -- - - - - - --- -- - --- --- - -- -- - ------ --- ----- -- ----- - -- - -- -- - - -- -- -- Department ("NYPD"), which requires an applicant to pass an examination consisting of both a written portion and a physical portion. Following the Petitioner's successful completion of the written portion of the examination with a passing score, the Petitioner was to take the physical portion of the NYPD examination. However, during the preemployment processing at the NYPD, Petitioner reported that he had three surgeries on his left knee to repair a torn anterior cruciate ligament ("AGL"). Petitioner was thereafter placed on medical review for orthopedic reasons, and notified to appear for further evaluation and to submit all records related to his AGL surgeries prior to the scheduled evaluation. On or abut March 27, 2012, Petitioner appeared for an appointment with Dr. Marylrene Flynn, M.D., an NYPD physician. Dr. Flynn conducted an individualized clinical examination of Petitioner, during which she visually inspected Petitioner's knees, and performed several tests to determine the integrity of his AGL. Dr. Flynn also reviewed Petitioner's medical records and discussed with Petitioner his surgical history. Based on the results of the individualized medical examination, Dr. Flynn concluded that due to Petitioner's unstable left knee, including the lack of full range of motion in that leg and significant arthritis, he was not qualified to perform the full duties of a police officer with the NYPD. Petitioner was notified that he was medically disqualified from consideration for the position of police officer because of his left knee. Petitioner thereafter perfected his administrative appeal of the decision to the Commission. Petitioner's claim that he should have been found medically qualified rests, in part, on his being found fit for active military service in August 2011. The Army's Physical Evaluation Board found Petitioner able to perform all critical functional -2- [* 4] activities, including: evading direct and indirect fire, riding in a military vehicle for at least 12 hours per day, wearing body armor for at least 12 hours per day, wearing load bearing equipment for at least 12 hours per day, moving 40 lbs. at least 100 yards while wearing protective gear, and living in an austere environment without worsening his medical condition. Petitioner also relied on his surgeon's findings that he was able to perform all of the critical tasks of a police officer in 2012. By letter dated June 12, 2013, the NYPD's Supervising Chief Surgeon, Dr. Eli J. Kleinman, M.D., informed the Commission of his conclusion that based on his review of the report of Dr. Flynn and the medical documentation submitted by Petitioner, Petitioner was properly disqualified from consideration as a New York City Police Officer due to his left knee instability interfering with his ability to serve as a reliable member of the NYPD. In so concluding, Dr. Kleinman noted that in contrast to the list of essential soldiering skills, of which Petitioner had been certified to perform by his private physician, the list of critical tasks required of full-duty police officers was more involved and extensive. Dr. Kleinman further noted that the job functions of a police officer differ from those of an active member of the Army, and that being found fit for military duty does not necessarily conclude that a candidate is qualified to perform the duties of a police officer with the NYPD. On November 28, 2012, the Commission heard oral argument related to Petitioner's appeal of his medical disqualification and, on March 4, 2013, the Commission issued a decision holding that the record supported Petitioner's medical disqualification from consideration for the position of police officer. On June 27, 2013, Petitioner commenced this Article 78 proceeding to annul the decision made on appeal -3- [* 5] by the Commission dated March 4, 2013 which affirmed the decision of the NYPD Medical Unit, and to have this Court remand the matter directing an individualized physical examination to determine whether Petitioner can reasonably perform the duties of the position of police officer. DISCUSSION Petitioner claims that his disqualification by the NYPD violates Executive Law § 296(1 )(a), which prevents discrimination against job applicants based on an applicant's disability. Executive Law§ 292(21) defines a "disability" as: (a) a physical, mental or medical impairment resulting from anatomical, physiological, genetic or neurological conditions which prevents the exercise of a normal bodily function or is demonstrable by medically accepted clinical or laboratory diagnostic techniques or (b) a record of such an impairment or ( c) a condition regarded by others as such an impairment, provided, however, that in all provisions of this article dealing with employment, the terms shall be limited to disabilities which, upon the provision of reasonable accommodations, do not prevent the complainant from performing in a reasonable manner the activities involved in the job or occupation sought or held. An employer may refuse to hire a candidate if the disability prevents the candidate from "performing in a reasonable manner the activities involved in the job" (Executive Law§ 292 [21]; see Matter of Antonsen v Ward, 77 NY2d 527, 532 [1991]; Matter of Miller v Ravitch, 60 NY2d 527, 532 [1983]). This requires an individualized determination that the particular disability affects the individual in such a way as to -4- [* 6] prevent him or her from performing in a reasonable manner the specific activities involved in the position at issue (see Matter of Antonsen v Ward, supra at 513). Moreover, an appointing authority has wide discretion in determining the fitness of candidates (see Matter of Verme v Suffolk County Dept. of Civ. Serv., 5 AD3d 498 (2004]). This discretion is particularly broad in the hiring of law enforcement officers, to whom high standards may be applied (see Matter of Mark v Schneider, 305 AD2d 685, 686 (2003]). It is well settled that in a CPLR article 78 proceeding to review a determination of an administrative board, the board's decision must be upheld if it is based on substantial evidence (see, Matter of Berenhaus v. Ward, 70 N.Y.2d 436, 522 N.Y.S.2d 478, 517 N.E.2d 193; Matter of DiCairano v. Gandolfo, 201 A.D.2d 727, 609 N.Y.S.2d 619). This Court cannot reject the determination of the Commission "where the evidence is conflicting and room for choice exists. Thus, when a rational basis for the conclusion adopted by the Commissioner is found, the judicial function is exhausted" (Matter of State Div. of Human Rights [Granelle], 70 N.Y.2d 100, 106, 517 N.Y.S.2d 715, 510 N.E.2d 799). That the opinion of the Petitioner's physician is contrary to that of the Commission's physician is not controlling (see, Matter of Kornfeld v. Nassau County Civ. Serv. Commn., 138 A.D.2d 710, 526 N.Y.S.2d 523; Matter of Palazzolo v. Nadel, 83 A.D.2d 539, 441 N.Y.S.2d 673). Contrary to the Petitioner's contention, the Commission's determination here is supported by substantial evidence in the record, inasmuch as Petitioner was disqualified only after an individualized clinical examination of his knee by an NYPD orthopedic surgeon, who observed his limited range of motion. The Commission was -5- [* 7] -- I free to accept the determination of Dr. Kleinman and Dr. Flynn which concluded that the Petitioner's left knee instability interfered with his ability to serve as a member of the NYPD. As long as the administrative determination is not irrational or arbitrary, this Court will not interfere with it. This is because the Police Commissioner "is ultimately responsible for protecting both the community and departmental personnel from foreseeable risks" (Boss v. Kelly, 3 Misc3d 936, 939 (Sup. Ct. , N.Y. Cnty. 2004). The Petitioner's remaining contentions are without merit. Accordingly, it is hereby ORDERED and ADJUDGED that the petition is denied; and it is further ORDERED and ADJUDGED that the cross motion is granted and the proceeding is dismissed. ENTER: ~ J.S:C. -6-

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