Citation Numbers: 136 Misc. 2d 110
Judges: Saxe
Filed Date: 4/7/1987
Status: Precedential
Modified Date: 2/5/2022
OPINION OF THE COURT
Plaintiff Peter Smith moves pursuant to CPLR 3212 for summary judgment directing his reinstatement to the position of Probationary Police Officer in the New York City Police Department and for an immediate trial on the issue of damages.
Plaintiff was dismissed from the Police Department follow
In support of this motion for summary judgment declaring his right to be restored to duty with full seniority and benefits, plaintiff contends that he was discharged solely because of a history of alcohol abuse (as opposed to a current problem) in violation of the New York State Human Rights Law set forth in Executive Law § 290 et seq. and the Federal Rehabilitation Act found at 29 USC §§ 791-794. It is plaintiff’s position that he has never had a problem with alcohol; that he performed his police duties without incident and in a satisfactory manner; and that his dismissal must therefore be construed as discriminatory and legally impermissible. To the contrary, defendants assert that plaintiff was dismissed because he lied on his medical history questionnaire, exhibited abnormal liver function and presented a poor prognosis for overcoming his drinking problem.
In connection with his application for appointment to the Police Department, plaintiff completed three medical history questionnaires. On each form, plaintiff was asked whether he had ever suffered from alcoholism or abnormal liver function and each time he responded in the negative. However, during the course of a routine background investigation, it was learned that in 1981 plaintiff had been treated for abnormal liver function caused by alcohol abuse. Plaintiff was then referred to the Alcohol Counseling Unit where he admitted that, prior to joining the Police Department, he had received treatment at Daytop Village, a residential facility for substance abusers. Plaintiff was assessed by Sergeant Arthur Beaman, a certified alcoholism counselor, who determined that plaintiff manifested the signs, symptoms and history commonly associated with alcoholism and concluded that plaintiff’s refusal to recognize the severity of his problem
It is established law that a misstatement or omission of a material fact on an application for appointment to a civil service position warrants disqualification or dismissal of the applicant or employee (Civil Service Law § 50 [4] [f]; Matter of Stewart v Civil Serv. Commn., 84 AD2d 491; see also, Matter of Raheb v Civil Serv. Commn., Sup Ct, NY County 1984, Saxe, J., index No. 16028/84; Vargas v Civil Serv. Commn., Sup Ct, NY County 1983, Ascione, J., index No. 19219/83). Here, the record amply supports defendant’s position that plaintiff was decertified, at least in part, because he omitted material facts from his application which bear directly upon his integrity and his ability to serve as a responsible and reliable member of the police force.
I find, further, that the undisputed facts in this case preclude plaintiff from claiming protection under the Human Rights Law or the Federal Rehabilitation Act. Both statutes prohibit employment discrimination on the basis of a disability which does not impede the employee’s performance of job-related activities in a reasonable manner (see, Executive Law § 292 [21]; 29 USC § 794). Notwithstanding a current ability to perform, exclusion from employment is legally permissible where there exists a rationally based expectation that a physical or psychological condition will result in future disability (Matter of State Div. of Human Rights [Granelle], 118 AD2d 3; cf., Matter of Carerro v New York City Hous. Auth., 116 AD2d 141).
In this case, defendants determined that plaintiff’s alcohol abuse will become exacerbated in the future because of his
In accordance with the foregoing, I find that plaintiff’s employment was properly and legitimately terminated and that he is not entitled to reinstatement or a monetary award.
Settle order providing for the entry of judgment in defendants’ favor.