| Matter of Kirk v City of New York |
| 2008 NY Slip Op 00037 [47 AD3d 406] |
| January 3, 2008 |
| Appellate Division, First Department |
| In the Matter of Michael Kirk, Petitioner, v City of NewYork et al., Respondents. |
—[*1] 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 Departmentterminated his employment. Such determination was supported by substantial evidence (seeMatter of Powell v City of Newburgh, 284 AD2d 334 [2001], lv denied 96 NY2d720 [2001]; Matter of Gibson v Koehler, 165 AD2d 768 [1990]). Petitioner's contentionthat the Department's random drug testing policy is unconstitutional is without merit (seeMatter 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 NewYork, 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 FSupp 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 drugabuse was causally related to his alcoholism, and thus did not state a prima facie case ofemployment discrimination under Executive Law § 296 (1). Concur—Tom, J.P.,Andrias, Gonzalez and Sweeny, JJ.