Jackman v. Schembri , 635 N.Y.S.2d 30 ( 1995 )

—Determination of respondent Correction Commissioner dated June 6, 1994, which dismissed petitioner from his position as a correction officer, unanimously confirmed, the petition denied and the proceeding brought pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, New York County [Ira Gammerman, J.], entered on or about September 20, 1994) is dismissed, without costs. Substantial evidence supports respondent’s finding of reasonable suspicion justifying the direction that petitioner undergo a drug test. Such evidence includes the testimony of respondent’s Health Management Division physician to whom petitioner was directed to report because of his own complaint of inability to perform his normal job duties, that upon examining petitioner he detected alcohol on petitioner’s breath, nasal congestion, swollen glands, throat soreness and an eye condition known as nystagmus, an inability to maintain eyes in a fixed position indicative of substance abuse. There was also evidence that, while in the Health Management Division’s waiting room, petitioner was agitated and hostile towards clinic workers. Nor was petitioner’s right to due process violated by the refusal to grant an adjournment, where he failed to appear on the first two hearing dates, his absence could not be explained by his attorney and there was no indication that he would appear at a later hearing if an adjournment were granted (see, Terio v Terio, 190 AD2d 665, appeal dismissed 81 NY2d 994). Concur — Ellerin, J. P., Ross, Nardelli, Williams and Mazzarelli, JJ.