Opinion
No. 3237/14.
07-22-2014
In the Matter of an Article 78 Proceeding Daniel GIBBONS, Petitioner, v. Karl KAMPE as Executive Director of the Nassau County Civil Service Commission and the Nassau County Civil Service Commission, Respondent.
The Law Offices of Kevin P. Sheerin by Kevin P. Sheerin, Esq., Mineola, Attorneys for Petitioner. Carnell T. Foskey, Nassau County Attorney, County of Nassau, Mineola, for Respondent.
The Law Offices of Kevin P. Sheerin by Kevin P. Sheerin, Esq., Mineola, Attorneys for Petitioner.
Carnell T. Foskey, Nassau County Attorney, County of Nassau, Mineola, for Respondent.
Opinion
DANIEL R. PALMIERI, J.
This petition is denied and the proceeding is dismissed.
All requests for relief not specifically addressed are denied.
This is a proceeding pursuant to CPLR Art. 78 in which the petitioner contests a determination of the Nassau County Civil Service Commission (the Commission) dated December 31, 2013 which confirmed a previous disqualification of petitioner for employment with the Nassau County Police Department.
Petitioner is a 14–year veteran of the United States Marines who served in various battle zones and was exposed to combat explosions. As a result he was awarded a service connected monthly disability stipend based on a hearing disorder. He applied for employment with the NCPD and signed a Pre Offer of Employment which included a proviso that the position “requires a high level of physical ability to include vision, hearing, speaking, flexibility and strength.”
At the end of his medical examination he was told that he failed the hearing test but he took a second hearing test at Commission headquarters that same month with the same result.
A disqualification letter followed on October 23, 2013 which states that the reason for disqualification was “failure to meet the MPTC standards for audiology.”
Petitioner than consulted his own doctor to perform hearing testing which he claims demonstrated that he surpassed minimum standards. Upon receipt of the tests results the Commission set up an additional test (the fourth in all) with a private doctor who told him that his hearing loss at certain ranges was higher than that which was preferred.
Shortly thereafter the Commission sent him its final disqualification notice and this petition ensued.
Petitioner contends that his disqualification was arbitrary and capricious, irrational lacking substantial evidence, in bad faith and that his hearing loss is not severe enough to disqualify him from police duties.
In reviewing an agency determination that was made without a hearing, the issue is whether the action taken had a rational basis and was not arbitrary and capricious. Ward v. City of Long Beach, 20 NY3d 1042 (2013).
Judicial review of an agency's determination is limited to whether there was a rational basis for the conclusion and unless the determination is arbitrary or capricious, a court should not undermine its action. Matter of Hughes v. Doherty, 5 NY3d 100 (2005).
The standards for physical fitness have a rational relationship to the ability of an individual to perform police functions and their application is neither arbitrary nor capricious. Buchetta v.. County of Westchester, 32 AD3d 513 (2d Dept.2006).
An appointing authority has wide discretion in determining the fitness of candidates ... This discretion is particularly broad in the hiring of law enforcement officers, to whom high standards may be applied ... As long as the administrative determination is not irrational or arbitrary, this Court will not interfere with it. In determining whether a candidate is medically qualified to serve as a police officer, the appointing authority is entitled to rely upon the findings of its own medical personnel, even if those findings are contrary to those of professionals retained by the candidate, and the judicial function is exhausted once a rational basis for the conclusion is found. Matter of Thomas v. Straud, 29 AD3d 595, 596 (2d Dept.2006).
Contrary to the petitioner's contention the Commission did not act irrationally or arbitrarily in this instance. There were four separate tests administrated, all of which appear to have been based on objective testing. That one of these tests, the one sought by petitioner, may be contrary to the others is not controlling. It is not for the courts to choose between diverse professional opinions. That is the function of the administrative agency and as long as it acts reasonably and responsibly, the courts will not interfere. See Matter of Winnegar v. County of Suffolk, 13 AD3d 382, (2d Dept.2004).
In his reply, petitioner, for the first time, claims discrimination based on his hearing disability. The new material contained in the reply for the first time should not be considered Luft v. Luft, 52 AD3d 479 (2d Dept.2008). The function of reply papers is to address arguments made in opposition to the position taken by the petitioner and not to permit him to introduce new arguments in support of the petition. Paul v. Cooper, 45 AD3d 1485 (4th Dept.2007) ; Allstate Insurance Company v. Dawkins, 52 AD3d 826 (2d Dept.2008).
Here, the entire petition and supporting affidavit are based upon the decision to disqualify the petitioner based on his hearing infirmity, a condition which petitioner has acknowledged since the outset. The new claim in the reply based on discrimination as a violation of the Executive Law is inappropriate and in any event is not supported by any facts. It was known to petitioner when he signed the Pre Offer of Employment that he and all other candidates were required to demonstrate a high level of hearing and other attributes. See Tardif v. Town of Southold, 56 AD3d 755 (2d Dept.2008) and Matter of Verme v. Suffolk County of Dept. of Civ. Serv., 5 AD3d 498 (2d Dept.2004).
In any event, Petitioner's reliance on Executive Law § 296[1][a] is also misplaced because of the exception found in Executive Law § 292(21) which exempts from the definition of “disability” those conditions which prevent a complainant from performing in a reasonable manner the activities involved in the sought after job or occupation. Since the performance standards for the position include a high degree of hearing function and the record contains ample evidence of hearing impairment the Commission's conclusion is supported by the evidence and petitioner's condition is not a defined “disability” under the Executive Law. Matter of Curcio v. Nassau County Civ. Serv. Commn., 220 A.D.2d 412 (2d Dept.1995).
Based on the above, the petition is denied and dismissed. This shall constitute the Decision and Order of this Court.
Submit judgment on notice.