Opinion
13210 Index No. 161432/18 Case No. 2020-03629
02-25-2021
In the Matter of John P. GAGLIANO, Petitioner–Appellant, v. NEW YORK CITY FIRE DEPARTMENT et al., Respondents–Respondents.
Gordon, Gordon & Schnapp, P.C., New York (Kenneth E. Gordon of counsel), for appellant. James E. Johnson, Corporation Counsel, New York (Susan Paulson of counsel), for respondents.
Gordon, Gordon & Schnapp, P.C., New York (Kenneth E. Gordon of counsel), for appellant.
James E. Johnson, Corporation Counsel, New York (Susan Paulson of counsel), for respondents.
Acosta, P.J., Renwick, Singh, Mendez, JJ.
Judgment, Supreme Court, New York County (Debra A. James, J.), entered August 10, 2020, denying the petition seeking to overturn respondents’ determination, dated August 27, 2018, which disqualified him from promotion to the position of firefighter due to medical reasons, and granting respondents’ cross motion to dismiss the proceeding brought pursuant to CPLR article 78, unanimously affirmed, without costs.
Respondents’ determination was not arbitrary and capricious, or without a rational basis. The record demonstrates that petitioner had profound sensorineural hearing loss in his left ear, which, under the standards promulgated by the National Fire Protection Association (NFPA), was grounds to disqualify him from appointment to the position of firefighter (see Matter of Rivers v. New York City Dept. of Sanitation, 49 A.D.3d 436, 854 N.Y.S.2d 64 [1st Dept. 2008] ). Respondents’ physician considered petitioner's medical submissions and letters from his former colleagues, but ultimately determined that his unequal hearing would interfere with his ability to safely perform search and rescue operations, as well as tasks requiring an ability to localize faint sounds in high-noise environments. In addition, respondents’ physician determined that petitioner's hearing loss in his left ear was progressive and would further impair his ability to serve as a firefighter. That petitioner's physicians reached a different result does not render respondents’ medical examiner's conclusions arbitrary and capricious (see Matter of Griffin v. City of New York, 127 A.D.3d 412, 4 N.Y.S.3d 505 [1st Dept. 2015], appeal dismissed and lv. denied 25 N.Y.3d 1191, 16 N.Y.S.3d 49, 37 N.E.3d 107 [2015] )