Petition for Writ of Certiorari — Craig Roth, Petitioner v. Nassau County, New York

APPENDIX

i

APPENDIX

TABLE OF CONTENTS

Appendix A Summary Order in the United States

Court of Appeals for the Second Circuit

(January 17, 2019) . . . . . . . . . . . . App. 1

Appendix B Memorandum and Order in the

United States District Court for the

Eastern District of New York

(March 27, 2018) . . . . . . . . . . . . . . App. 8

Appendix C Order in the Supreme Court of the

State of New York

(May 3, 2016). . . . . . . . . . . . . . . . App. 25

App. 1

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

18-966-cv

[Filed January 17, 2019]

SUMMARY ORDER

Rulings by summary order do not have precedential

effect. Citation to a summary order filed on or after

January 1, 2007, is permitted and is governed by

Federal Rule of Appellate Procedure 32.1 and this

Court’s Local Rule 32.1.1. When citing a summary

order in a document filed with this Court, a party must

cite either the Federal Appendix or an electronic

database (with the notation “summary order”). A party

citing a summary order must serve a copy of it on any

party not represented by counsel.

At a stated term of the United States Court of

Appeals for the Second Circuit, held at the Thurgood

Marshall United States Courthouse, 40 Foley Square,

in the City of New York, on the 17th day of January,

two thousand nineteen.

PRESENT: JOSÉ A. CABRANES,

ROSEMARY S. POOLER,

CHRISTOPHER F. DRONEY,

Circuit Judges.

App. 2

________________________________

CRAIG ROTH,

)

)

Plaintiff-Appellant,

)

)

v.

)

)

COUNTY OF NASSAU,

)

)

Defendant-Appellee. )

________________________________ )

FOR PLAINTIFF-APPELLANT:

MICHAEL CONFUSIONE, Hegge &

Confusione, LLC, Mullica Hill, NJ.

FOR DEFENDANT-APPELLEE:

KATHARINE SMITH SANTOS (Joseph

Covello, on the brief), Lynn,

Gartner, Dunne & Covello, LLP,

Mineola, NY.

Appeal from a March 27, 2018 judgment of the

United States District Court for the Eastern District of

New York (Leonard D. Wexler, Judge).

UPON DUE CONSIDERATION WHEREOF, IT

IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the order of the District Court be and

hereby is AFFIRMED.

Plaintiff Craig Roth (“Roth”) appeals from the

District Court’s grant of summary judgment on the

ground that Roth was collaterally estopped from

asserting discrimination claims under the Americans

App. 3

with Disabilities Act (“ADA”) and the New York State

Human Rights Law (“NYSHRL”). We assume the

parties’ familiarity with the underlying facts, the

procedural history of the case, and the issues on

appeal.

“We review a district court’s grant of summary

judgment de novo.” Utica Mut. Ins. Co. v. Clearwater

Ins. Co., 906 F.3d 12, 17 (2d Cir. 2018). “The district

court’s judgment may be affirmed on any ground fairly

supported by the record.” Trikona Advisers Ltd. v.

Chugh, 846 F.3d 22, 29 (2d Cir. 2017) (internal

quotation marks omitted). We also review a district

court’s application of the doctrine of collateral estoppel

de novo, accepting all factual findings of the district

court unless clearly erroneous. Id. Under New York

law, collateral estoppel “may be invoked to preclude a

party from raising an issue (1) identical to an issue

already decided (2) in a previous proceeding in which

that party had a full and fair opportunity to litigate.”

Farrell v. Burke, 449 F.3d 470, 482 (2d Cir. 2006)

(internal quotation marks omitted). In addition, “the

issue that was raised previously must be decisive of the

present action.” Id. at 482-83.

Roth challenges the District Court’s conclusion that

he was collaterally estopped from asserting

discrimination claims that he raised in an Article 78

proceeding before the New York Supreme Court. Roth

concedes that he is collaterally estopped from arguing

that he could perform the “essential functions” of a

police officer’s job. He nevertheless contends that he is

not collaterally estopped from arguing that he could

perform the essential functions of the job “with or

App. 4

without reasonable accommodation.” Roth claims that

the state court’s Article 78 order did not adequately

address the issue of accommodation, and that he is not

barred from demonstrating that he was able to perform

the essential duties of the police officer job with or

without such accommodation. See Makinen v. City of

New York, 857 F.3d 491, 495 n.3 (2d Cir. 2017) (“[B]oth

the NYSHRL and the ADA require a plaintiff to

demonstrate as an element of [his] claim that [he] was

able to perform the essential duties of [his] job with or

without a reasonable accommodation.”).

The District Court correctly concluded that Roth’s

ADA and NYSHRL claims are precluded under the

doctrine of collateral estoppel. Roth’s complaint in the

instant action seeks to relitigate issues that were fully

and fairly decided during his Article 78 proceeding in

New York Supreme Court. Roth’s Verified Petition

before the New York Supreme Court specifically

asserted that his disqualification violated Section

296(1)(a) of the NYSHRL and “may be actionable

pursuant to the American’s [sic] with Disabilities Act

as that Act protects individuals from employment

discrimination based upon an actual or perceived

disability.” App. 831 ¶¶ 50-52. Moreover, in both his

memorandum and reply memorandum in support of

the Verified Petition, Roth claimed to have “established

a prima facie case of discrimination in that [the

County] medically disqualified [him] due to his

diabetes disability.” Id. at 852, 887. Finally, the parties’

briefs before the New York Supreme Court made clear

that to demonstrate “disability” within the meaning of

the NYSHRL, a plaintiff must show that he was able to

perform the essential functions of the job with or

App. 5

without a reasonable accommodation. See id. at 852

(Roth quoting the NYSHRL definition of “disability” as

being “limited to disabilities which, upon the provision

of reasonable accommodations, do not prevent the

complainant from performing in a reasonable manner

the activities involved in the job or occupation sought

or held.” (emphasis added) (quoting N.Y. EXEC. LAW

§ 292(21)); see also id. at 872 (County agreeing that

“[u]nder the [NYS]HRL, an applicant must be able to

perform the essential functions of the job with or

without a reasonable accommodation.” (emphasis

added)).

The New York Supreme Court explicitly

acknowledged Roth’s discrimination argument, id. at

810, but nevertheless denied the Verified Petition “in

its entirety,” id. at 816. The gravamen of the County

medical experts’ medical conclusions was that there

was a significant risk that Roth could become mentally

or physically incapacitated during bursts of severe

exertion, including in pursuing suspects, using force,

and rescuing individuals. Given the particular nature

of those functions, and Roth’s conceded failure to

request accommodations (or to suggest any in his

briefing to the New York Supreme Court), we think

that—absent a clear indication to the contrary—the

New York Supreme Court reasonably concluded that

there was “substantial evidence” to support a

determination that it would have been impossible to

provide any reasonable accommodation for those

particular essential functions, see, e.g., McMillan v.

City of New York, 711 F.3d 120, 125 (2d Cir. 2013) (“[A]

reasonable accommodation can never involve the

elimination of an essential [job] function.” (internal

App. 6

quotation marks omitted)), and so it conclusively

decided that element of Roth’s discrimination claims.1

Cf. Vargas v. City of New York, 377 F.3d 200, 205, 20708 (2d Cir. 2004) (holding that the Rooker-Feldman

doctrine—and by extension, issue preclusion—prevents

re-litigation of an equal protection claim that a plaintiff

previously raised in an Article 78 proceeding);

DiLauria v. Town of Harrison, 64 F. App’x 267, 269-70

(2d Cir. 2003) (summary order) (granting summary

judgment on plaintiff’s ADA claims under the doctrine

of collateral estoppel even where plaintiff “raised no

specific claims for relief under the ADA” in his Article

78 petition, but “presented to the state court a

description of the discriminatory actions that he

believed played a role”). In sum, Roth’s discrimination

claims fail because he is precluded under the doctrine

of collateral estoppel from arguing that he was able to

perform the essential functions of a police officer with

or without a reasonable accommodation.

CONCLUSION

We have reviewed all of the arguments raised by

Roth on appeal and find them to be without merit. For

the foregoing reasons, we AFFIRM the March 27, 2018

judgment of the District Court.

1

Notably, Roth’s counsel conceded at oral argument that he did

not seek to challenge that any of the County’s purported essential

functions were indeed essential. Thus, although what functions are

“essential” under the ADA is normally an issue of fact, see Stone v.

City of Mount Vernon, 118 F.3d 92, 96-100 (2d Cir. 1997)—and

reasonable accommodations can only be determined based on what

functions are essential, see Gilbert v. Frank, 949 F.2d 637, 641 (2d

Cir. 1991)—we deem that argument waived.

App. 7

FOR THE COURT:

Catherine O’Hagan Wolfe, Clerk

App. 8

APPENDIX B

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

15-CV-6358

(Wexler, J.)

[Filed March 27, 2018]

_______________________

CRAIG ROTH,

)

)

Plaintiff,

)

)

-against)

)

COUNTY OF NASSAU, )

)

Defendant. )

_______________________ )

APPEARANCES:

PHILLIPS & ASSOCIATES, PLLC.

By: Gregory Calliste, Esq., Marjorie Mesidor, Esq. and

Brittany A. Stevens, Esq.

45 Broadway, Suite 620

New York, New York 10006

Attorneys for Plaintiff

LYNN, GARTNER, DUNNE & COVELLO, LLP

By: Joseph Covello, Esq. and Moshe O. Boroosan, Esq.

330 Old Country Road, Suite 103

Mineola, New York 11501

Attorneys for Defendant

App. 9

MEMORANDUM AND ORDER

WEXLER, District Judge:

Plaintiff Craig Roth (“Roth” or “Plaintiff”)

commenced this action against defendant County of

Nassau (the “County” or “Defendant”) alleging that he

was discriminated against in violation of the

Americans with Disabilities Act (“ADA”), 42 U.S.C.

§ 12101 et seq. and New York State Human Rights Law

(“NYSHRL”), N.Y. Exec. L. § 290 et seq. Currently

before the Court is the County’s motion for summary

judgment. See Motion, Docket Entry (“DE”) [41].

Plaintiff opposes the motion. For the reasons set forth

herein, the motion is granted.

I. BACKGROUND

A. Factual History

The facts are undisputed unless otherwise

indicated. See Defendant’s Rule 56.1 Statement (“Def’s

R.56.1 Stmt”), DE [41-2]; Plaintiff’s Response &

Counterstatement (“Pl’s R.56.1 Stmt”), DE [44-1];

Defendant’s Response, DE [45-1]. Plaintiff was

diagnosed with juvenile Type I diabetes when he was

seven years old. Type I diabetes cannot be treated with

oral medication, but rather is treated by administering

insulin via injection or insulin pump. In or around

2001, he began using an insulin pump to regulate the

level of insulin.1

1

An insulin pump is a mechanical, battery-powered, computercontrolled pump about the size of an electronic beeper that is

attached to a reservoir of insulin and provides infusions on a 24hour basis. It is attached to the body through a subcutaneous port,

App. 10

Plaintiff sought a position with the Nassau County

Police Department (“NCPD”). Hiring for the NCPD is

done pursuant to New York Civil Service Law and open

competitive examinations. The Nassau County Civil

Service Commission (the “Commission”) oversees the

process for candidates on the list of potential hires.

Plaintiff scored high enough on the exam to be asked to

interview. In late 2014 and early 2015, Plaintiff

underwent various psychological and physical

assessments. During the medical examination, Roth

disclosed that he had Type I diabetes. Plaintiff was

psychologically approved, but was placed on a medical

hold on January 21, 2015 and was asked to submit

additional materials from his private endocrinologist.

Defendant claims that upon receipt and review of

these materials, Dr. Marlaine Tapply, Medical Director

of the Civil Service Commission, recommended that

Plaintiff be disqualified from the position of police

officer. The parties dispute the basis for Dr. Tapply’s

recommendation. Defendant claims that it was “based

on the fact that the plaintiff’s condition was brittle,

that his blood sugars were widely fluctuating, that

plaintiff had pump problems, and that plaintiff had

experienced numerous hypoglycemic episdoes.” Def’s

R.56.1 Stmt, ¶110. Plaintiff claims that Dr. Tapply had

no evidence to suggest that he was not qualified and

and a catheter tube connects the insulin pump to the port. Patients

commonly carry the insulin pumps in their pockets and run the

tube to the port. The amount of insulin released by the pump can

be adjusted. The patient must monitor glucose levels periodically

by using a glucometer, a separate instrument, to check his blood

sugar level, and then adjusts the delivery of insulin from the pump

as necessary.

App. 11

relied on documents without any medical input. Pl’s

R.56.1 Stmt, ¶110.

On or about April 1, 2015, the Commission

disqualified Roth due to “endocrine condition (insulindependent diabetes) which precludes ability to fulfill

the physical requirements of a Police Officer.” Affidavit

of Karl Kampe (“Kampe Aff.”), Ex. QQ. Roth appealed

this decision to the Commission. In response, the

Commission on July 8, 2015 referred him to the Chief

of Endocrinology at the Nassau University Medical

Center for “final determination.” Id., Ex. UU.

Dr. David S. Rosenthal interviewed and examined

Roth as requested by the Commission. In addition to

his examination and taking an oral history from Roth,

Dr. Rosenthal reviewed the specifications for Nassau

County police officers,2 and letters from Roth’s treating

endocrinologist and a second doctor. No medical records

were provided or reviewed. Dr. Rosenthal’s medical

2

The County has established class specifications for police officer

positions to determine whether a candidate can perform the duties

of the position. The classification lists thirteen typical duties,

twelve of which are designated as essential functions. Defendant

points to two such essential functions that it claimed Plaintiff

would be unable to perform:

4.

Locates, pursues if necessary, and arrests persons

wanted on warrants or court orders, or as a result of

observation, or crime in progress, using forceful arrest

methods and/or deadly physical force, as required.

***

10. Rescues individuals at accidents, emergencies, and

disasters, which may involve climbing and/or jumping up,

down, or over obstacles, entering confined areas, and

balancing on narrow surfaces, as required.

App. 12

opinion was that “the potential for glycemic instability

which may occur during the performance of the duties

of a Nassau County police officer is troubling and

significant.” Rosenthal letter of 8/19/15, Kampe Aff. Ex.

WW. In reference to Roth’s prior employment as a

safety officer at Nassau Community College and as a

seasonal police officer with the Long Beach Police

Department, and his active patrol duties for the

proceeding two months with the New York City Police

Department,3 Dr. Rosenthal noted that “[t]he lack of

such an event during his prior work experience is

reassuring but does not preclude future problems

should he become a member of the Nassau County

Police Department.” Id. On September 2, 2015, the

Commission ruled that Plaintiff remained disqualified

and subsequently informed him that his appeal was

complete.

B. Procedural History

1. State Court Article 78 Proceeding

On or about May 3, 2015, Plaintiff commenced an

Article 78 proceeding in New York Supreme Court,

Nassau County, seeking to set aside the Commission’s

decision. Verified Petition (“the Petition”), Def’s Ex.

BBB. The Petition asserted that his disqualification

violated NYSHRL and may be actionable under the

ADA:

50. Respondents engaged in sheer and

unsupported speculation about Petitioner’s

3

On or about January 7, 2015, Roth was hired by the New York

City Police Department.

App. 13

physical capabilities and a decision based upon

nothing but speculation about his physical

capabilities is arbitrary and capricious and may

be actionable pursuant to the American[s] with

Disabilities Act as that Act protects individuals

from employment discrimination based upon an

actual or perceived disability.

51. The disqualification determination and the

affirmation of the disqualification determination

is in violation of New York Executive Law

§ 296(1)(a).

52 Petitioner’s diabetes condition as alleged by

Respondents is a disability” under New York

Executive Law § 296(1)(a) and 292(21).

53. There is absolutely nothing in the record to

indicate that Petitioner’s diabetes impairs or

would impair his physical functioning in any

way.

Verified Petition (“Petition”), Kampe Aff., Ex. BBB. The

issue of whether the Commission’s decisions

constituted disability discrimination under the

NYSHRL was briefed by both parties.

By Order dated May 3, 2016, the state court denied

Roth’s petition in its entirety. Short Form Order

(“Article 78 Order”), Defendant’s Ex. ZZ. Noting that an

Article 78 proceeding is “limited to an inquiry into

whether the agency acted arbitrarily and/or

capriciously,” the judge determined that the decision

was rational and noted that the County relied upon

expert recommendations from Drs. Tappley and

Rosenthal. Article 78 Order at 10-11. She found that

App. 14

the determination “was not irrational, but rather

supported by substantial evidence,” denied the petition

in its entirety, and dismissed it. Plaintiff did not appeal

the Article 78 Order.

2. Federal Action

After filing the Article 78 Petition, Plaintiff filed a

discrimination charge with the Equal Employment

Opportunities Commission (“EEOC”). The EEOC

dismissed the charge and issued a Notice of Right to

Sue on October 15, 2015. This case was commenced on

November 5, 2015. After Defendant filed its answer,

the state court issued its decision in the Article 78

proceeding.

Plaintiff states two discrimination claims, one under

the ADA and the other under the NYSHRL. He seeks

an award of compensatory damages, lost wages,

punitive damages, and attorneys’ fees.

II. LEGAL STANDARDS

Pursuant to Rule 56 of the Federal Rules of Civil

Procedure, summary judgment is appropriate only if

“the movant shows that there is no genuine dispute as

to any material fact and the movant is entitled to

judgment as a matter of law.” FED. R. CIV. P. 56(a); see

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48

(1986). In determining a motion for summary

judgment, the court “is not to weigh the evidence but is

instead required to view the evidence in the light most

favorable to the party opposing summary judgment, to

draw all reasonable inferences in favor of that party,

and to eschew credibility assessments.” Amnesty Am.

v. Town of W. Hartford, 361 F.3d 113, 122 (2d Cir.

App. 15

2004). After the moving party has met its burden, the

opposing party “‘must do more than simply show that

there is some metaphysical doubt as to the material

facts. . . . [T]he nonmoving party must come forward

with specific facts showing that there is a genuine issue

for trial.’” Caldarola v. Calabrese, 298 F.3d 156, 160 (2d

Cir. 2002) (quoting Matsushita Elec. Indus. Co. v.

Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)).

The ADA makes it unlawful for employers to

discriminate on account of a disability, stating in

relevant part that “[n]o covered entity shall

discriminate against a qualified individual on the basis

of disability in regard to job application procedures, the

hiring, advancement, or discharge of employees,

employee compensation, job training, and other terms,

conditions, and privileges of employment.” 42 U.S.C.

§ 12112(a). Claims of disability discrimination under

the ADA and the NYSHRL are governed by the same

legal standards. Graves v. Finch Pruyn & Co., 457 F.3d

181, 184 n.3 (2d Cir. 2006).

Disability discrimination claims under the ADA are

subject to the burden-shifting analysis set forth in

McDonnell Douglas Corp. v. Green, 411 U.S. 792

(1973). See McBride v. BIC Consumer Prods. Mfg. Co.,

583 F.3d 92, 96 (2d Cir. 2009). To establish a prima

facie discrimination claim under the ADA, a plaintiff

must show: (1) the employer is subject to the ADA;

(2) plaintiff is disabled within the meaning of the ADA;

(3) plaintiff was otherwise qualified to perform the

essential functions of the job with or without

reasonable accommodation; (4) plaintiff suffered an

adverse employment action; and (5) the adverse action

App. 16

occurred under circumstances giving rise to an

inference of discriminatory intent. See Davis v. New

York City Dep’t of Ed., 804 F.3d 231, 235 (2d Cir. 2015).

Once a prima facie case is established, “the burden of

production shifts to the employer to articulate a nondiscriminatory reason for the adverse employment

action,” and if the employer carries that burden, “the

plaintiff must then produce evidence capable of

carrying the burden of persuasion that the employer’s

action was at least in part motivated by

discrimination.” Id.

III. DISCUSSION

A. Waiver of Affirmative Defenses

Defendants argue on this motion, inter alia, that

Plaintiff’s claims are precluded by the doctrines of res

judicata or collateral estoppel. Plaintiff submits that

the County has waived these affirmative defenses by

failing to raise either in its answer. See FED. R. CIV. P.

8(c). Defendant’s answer filed on January 11, 2016 did

not include either defense as the Article 78 decision

forming the basis for these defenses was not issued

until May 3, 2016.

When a defendant raises an affirmative defense in

a motion for summary judgment, the court has “the

discretion to entertain the defense . . . by construing

the motion as one to amend the defendant’s answer.”

Monahan v. New York City Dep’t of Corr., 214 F.3d 275,

283 (2d Cir. 2000); see also S&L Vitamins, Inc. v.

Australian Gold, Inc., 521 F. Supp. 2d 188, 213

(E.D.N.Y. 2007) (“Courts also consider factors underlying

a leave to amend under Rule 15 of the Federal Rules of

App. 17

Civil Procedure in permitting an affirmative defense

when such defense was first raised on summary

judgment.”). Leave to amend “should not be denied

unless there is evidence of undue delay, bad faith,

undue prejudice to the non-movant, or futility.”

Milanese v. Rust-Oleum Corp., 244 F.3d 104, 110 (2d

Cir. 2001)(quoting Foman v. Davis, 371 U.S. 178, 182,

83 S. Ct. 227, 9 L.Ed.2d 222 (1962)). Delay in asserting

an affirmative defense is not a basis for denying

amendment “absent a showing of bad faith or undue

prejudice.” State Teachers Ret. Bd v. Fluor Corp., 654

F.2d 843, 856 (2d Cir. 1981); see also Cowan v. Ernest

Codelia, P.C., No. 98 CIV. 5548, 2001 WL 856606, at *5

(S.D.N.Y. July 30, 2001) (noting that courts “have been

especially flexible where the defense of res judicata was

not available at the pleading stage because the other

action had not yet been concluded”).

There is no prejudice to Plaintiff in allowing

assertion of the res judicata and collateral estoppel

defenses at this juncture. The primary purpose of the

pleading requirement is to provide notice to the

plaintiff. See, e.g., Blonder-Tongue Labs. v. Univ. of

Illinois Found., 402 U.S. 313, 350 (1971) (noting that

the purpose of requiring collateral estoppel to be pled

as an affirmative defense “is to give the opposing party

notice of the plea of estoppel and a chance to argue, if

he can, why the imposition of an estoppel would be

inappropriate.”). As Defendant raised its defenses in its

memorandum in support of this motion and Plaintiff

responded to those arguments in his opposition, he has

been afforded sufficient notice and opportunity to

respond to those defenses. See Curry v. City of

Syracuse, 316 F.3d 324, 331 (2d Cir. 2003) (noting

App. 18

adequate notice and opportunity to respond where

issue was first raised in reply on motion for summary

judgment and plaintiff was permitted to submit a surreply); Gelfman Int’l Enters. v. Miami Sun Int’l Corp.,

No. 05-CV-3826, 2009 WL 2242331, at *4 (E.D.N.Y.

July 27, 2009) (“A district court may consider the

merits of an affirmative defense raised for the first

time at the summary judgment stage, so long as the

plaintiff has had an opportunity to respond”). In

addition, Plaintiff cannot claim surprise as he was

clearly aware of the state court’s decision. See, e.g.,

Sullivan v. Am. Airlines, Inc., 613 F. Supp. 226, 230

(S.D.N.Y. 1985) (allowing plaintiff to amend to add

collateral estoppel defense at summary judgment

where arbitration award was issued after answer was

filed and plaintiff “was certainly aware of the

imminence of an arbitrators award, cannot assert he

was unduly surprised by the proposed amendment”).

Plaintiff here has had notice and an opportunity to

be heard on the affirmative defenses. In the absence of

a showing of unfair prejudice to Plaintiff, and in light

of the fact that the state court decision was not issued

until after Defendant’s answer was filed, the Court

finds that Defendant’s failure to assert claim

preclusion and res judicata in its answer does not

constitute a waiver of those defenses. Accordingly,

Defendant’s affirmative defenses of res judicata and

collateral estoppel will be considered by the Court.

B. Claim Preclusion or Res Judicata

Under the doctrine of res judicata or claim

preclusion, “[a] final judgment on the merits of an

action precludes the parties or their privies from

App. 19

relitigating issues that were or could have been raised

in that action.” Federated Dep’t Stores, Inc. v. Moitie,

452 U.S. 394, 398 (1981). To apply, New York law

requires establishment of four elements: “(1) there

must be a final judgment; (2) the judgment must have

been on the merits; (3) the parties in the second action

must be the same as those in the first; and (4) the

claims must be the same in the first and second

actions.” Sedacca v. Mangano, No. 12-cv-1921, 2014

WL 1392224, at *3 (E.D.N.Y. Apr. 9, 2014) (internal

quotation and citation omitted).

Claims will not be barred by res judicata “where the

initial forum was not empowered to grant the full

measure of relief available in the subsequent lawsuit.

Overview Books, LLC v. United States, 755 F. Supp. 2d

409, 415 (E.D.N.Y. 2010) (citing Burka v. New York

City Transit Auth., 32 F.3d 654, 657 (2d Cir. 1994)),

aff’d, 438 F. App’x 31 (2d Cir. 2011). A state court

reviewing an administrative determination in an

Article 78 proceeding may award only damages

“incidental to the primary relief sought” and may not

award compensatory damages. See Goonewardena v.

New York State Workers’ Comp. Bd., 2016 WL 7439414,

at *9 (S.D.N.Y. Feb. 9, 2016) (citing N.Y. CPLR §7806),

adopted by 2016 WL 7441695 (S.D.N.Y. Dec. 22, 2016).

As such, claims for such monetary damages in federal

cases are not precluded by res judicata. See, e.g., Nash

v. Bd. of Ed., 99 Civ. 9611, 2016 WL 5867449, at *5

(S.D.N.Y. Sept. 22, 2016) (plaintiff’s claim damages in

civil rights action not barred by res judicata); Beharry

v. M.T.A. New York City Transit Auth., No. 96-CV1203, 1999 WL 151671, at *5 (E.D.N.Y. Mar. 17, 1999)

(finding that res judicata did not bar ADA claims

App. 20

because plaintiff “could not have obtained in his Article

78 proceeding the monetary relief he seeks in this

federal action”), aff’d, 242 F.3d 364 (2d Cir. 2000).

Since Roth could not have received compensatory

damages for violations of his rights in the Article 78

proceeding, res judicata does not apply to Plaintiff’s

claims.

C. Issue Preclusion or Collateral Estoppel

Defendant also argues that Plaintiff’s claims are

barred by issue preclusion or collateral estoppel.

“Collateral estoppel, like the related doctrine of res

judicata, has the dual purpose of protecting litigants

from the burden of relitigating an identical issue with

the same party or his privy and of promoting judicial

economy by preventing needless litigation.” Parklane

Hosiery Co. v. Shore, 439 U.S. 322, 326 (1979). The

conclusion that res judicata is inapplicable is not

determinative of whether the Plaintiff is collaterally

estopped from raising particular issues before this

Court. See generally Burgos v. Hopkins, 14 F.3d 787,

792 (2d Cir. 1994) (applying collateral estoppel and

noting that while unavailability of money damages may

save plaintiff from res judicata determination, “it does

not necessarily change the fact that a court has already

decided the issues he now raises”).

The doctrine of collateral estoppel provides that an

issue may not be relitigated “when (1) the identical

issue necessarily was decided in the prior action and is

decisive of the present action, and (2) the party to be

precluded from relitigating the issue had a full and fair

opportunity to litigate the issue in the prior action.” In

re Hyman, 502 F.3d 61, 65 (2d Cir. 2007). “A judgment

App. 21

pursuant to Article 78 precludes relitigation of the

issues already decided in that earlier judgment.”

McBride v. Bratton, 122 F.3d 1056 (2d Cir. 1997); see

also Parker v. Blauvelt Volunteer Fire Co., 93 N.Y.2d

343, 349-50, 690 N.Y.S.2d 478, 712 N.E.2d 647 (1999)

(plaintiff collaterally estopped from relitigating issues

decided against him in Article 78 proceeding). Plaintiff

does not dispute that he raised disability

discrimination in his submissions to the state court,

nor does he suggest that he did not have a full and fair

opportunity to litigate the issue in that court. Instead,

he argues that there was no decision rendered by the

state court regarding his discrimination claim because

the Article 78 Order did not expressly reference or

discuss that claim.

Plaintiff clearly raised the issue of disability

discrimination in the state court action. His Petition

asserted that the Commission’s decision violated the

NYSHRL and may be actionable under the ADA. In

addition, his legal memorandum in support of the

Petition further addressed his contention that he had

been discriminated against. He devoted several pages

in both his memorandum and reply memorandum to

the argument that his diabetes is a disability under the

NYSHRL, and that he had “established a prima facie

case of discrimination in that [the County] medically

disqualified [Roth] due to his diabetes disability.”

Memorandum of Law in Support of Article 78 Petition,

Kampe Aff., Ex. CCC. Contrary to Plaintiff’s argument,

the state court acknowledged Plaintiff’s argument that

there was discrimination, see Art. 78 Order at 6, and

ultimately the Petition was “DENIED in its

entirety.” Id. at 12 (emphasis in original). It thus

App. 22

appears that the state court considered and rejected

Plaintiff’s arguments. See Parker, 93 N.Y.2d at 350

(finding that claim was precluded where court in prior

proceeding “primarily addressed” the existence of

substantial evidence, but also held that “remaining

contentions were without merit”). Roth did not appeal

this decision.

Even crediting Plaintiff’s argument that the Article

78 Order did not expressly address his discrimination

arguments, the lack of explicit language making a

finding on Plaintiff’s discrimination claim does not lead

to the conclusion that there can be no collateral

estoppel. “The prior decision of the issue need not have

been explicit, however, ‘[i]f by necessary implication it

is contained in that which has been explicitly decided.’”

Postlewaite v. McGraw-Hill, Inc., 333 F.3d 42, 48 (2d

Cir. 2003) (quoting Norris v. Grosvenor Mktg. Ltd., 803

F.2d 1281, 1285 (2d Cir. 1986)). “Where a plaintiff has

raised arguments concerning defendants’

purportedly . . . discriminatory behavior in an Article

78 proceeding, and that court finds that defendants had

a rational basis for their actions, a later claim that

defendants’ behavior was . . . discriminatory will be

precluded.” McGuinn v. Smith, 11-CV 4761, 2012 WL

12887595, at *7 (S.D.N.Y. Sept. 7, 2012). At the very

least, rejection of Plaintiff’s disability discrimination

argument is implicit in the state court’s finding that

the Commission’s decision was supported by

substantial evidence. See, e.g., Latino Officers Ass’n v.

City of New York, 253 F. Supp. 2d 771, 787 (S.D.N.Y.

2003) (finding that where Article 78 petition raised

discrimination and retaliation claims, the “state court’s

determination that . . . decision to terminate him was

App. 23

supported by substantial evidence . . . necessarily

implied rejection of [petitioner’s] claim that

termination was discriminatory and retaliatory”).

Plaintiff is attempting to relitigate issues

necessarily decided in the Article 78 proceeding. The

facts underlying both this action and the Petition are

identical. In both cases, Plaintiff argues that the

County’s disqualification was based on determinations

made after review of medical records, the same records

forming the basis of Plaintiff’s argument here. He

raises no new facts that were not before the state court.

Moreover, he raised the same legal arguments in both

courts—that the County’s conduct was discriminatory

under both the ADA and the NYSHRL. A plaintiff is

barred from relitigating issues where the state court

has “held against appellant on factual issues that are

central to the constitutional claims he now asserts in

federal court.” Genova v. Town of Southampton, 776

F.2d 1560, 1561 (2d Cir. 1985); see also Leo v. New York

City Dep’t of Ed., 2014 WL 6460704, at *5 (E.D.N.Y.

Nov. 17, 2014) (federal action precluded by collateral

estoppel where “[a]ll of the facts alleged in [plaintiff’s]

complaint suggesting bad faith conduct, retaliation, or

discrimination were also offered at the Article 78

proceeding.”). Here, the Commission disqualified Roth

because it found that he was not able to perform the

duties of the position, and the Article 78 judge found

that this decision was supported by substantial

evidence. As such, the factual issue of whether Plaintiff

was qualified to perform the essential functions of his

job, an essential element of a claim under the ADA and

the NYSHRL, has been decided, and he is precluded

App. 24

from relitigating that issue here. Accordingly,

Defendant’s motion for summary judgment is granted.4

IV. CONCLUSION

Defendant’s motion for summary judgment is

granted. The Clerk of the Court is directed to close the

case.

SO ORDERED.

s/__________________________________

LEONARD D. WEXLER

UNITED STATES DISTRICT JUDGE

Dated:

4

Central Islip, New York

March 27, 2018

In light of this ruling, the Court declines to address Defendant’s

alternative arguments in support of its motion for summary

judgment.

App. 25

APPENDIX C

SHORT FORM ORDER

SUPREME COURT OF THE

STATE OF NEW YORK

PRESENT: HON. DENISE L. SHER

Acting Supreme Court Justice

[Filed May 3, 2016]

_______________________________________________

In the Matter of the Application of

)

CRAIG ROTH,

)

)

Petitioner,

)

)

For a Judgment Pursuant to Article 78 of the

)

Civil Practice Laws and Rules,

)

)

- against )

)

THE NASSAU COUNTY CIVIL SERVICE

)

COMMISSION, KARL KAMPE,

)

EXECUTIVE DIRECTOR, JOHN J. SENKO JR., )

COMMISSIONER, ALAN M. PARENTE,

)

COMMISSIONER, and GARY L. ACKERMAN,

)

COMMISSIONER,

)

)

Respondents.

)

_______________________________________________ )

App. 26

TRIAL/IAS PART 37

NASSAU COUNTY

Index No.: 9631/15

Motion Seq. No.: 01

Motion Date: 12/11/15

XXX

The following papers have been read on this

application:

Papers Numbered

Notice of Petition, Verified

Petition, Memorandum of

Law, Affidavit and Exhibits

1

Verified Answer to Verified

Petition, Affidavit in

Opposition and Exhibits and

Memorandum of Law in

Opposition

2

Reply Memorandum of Law

3

Sur-Reply Memorandum of

Law

4

Upon the foregoing papers, it is ordered that the

application is decided as follows:

Petitioner moves, pursuant to CPLR Article 78, for

a judgment annulling, reversing and setting aside

respondents July 8, 2015 determination or, in the

alternative, the September 9, 2015 determination

which affirmed the decision to disqualify petitioner

App. 27

from consideration for the position of police officer with

the Nassau County Police Department and reinstating

petitioner to the eligible list as an eligible candidate for

Police Officer Examination No. 2000, established by

respondent Nassau County Civil Service Commission

(“Commission”) for the position of Nassau County

Police Officer, or, in the alternative, for an order

directing respondents to conduct a hearing whereat

petitioner has the opportunity to present evidence in

support of his appeal or, in the alternative, and in lieu

of affirming respondents’ determination, for an order

scheduling a trial pursuant to CPLR § 7804(h).

Respondents oppose the application.

Counsel for petitioner contends that the

determination made by respondents concerning

petitioner’s disqualification from further consideration

for the position of Nassau County Police Officer “is not

warranted by the facts, is in violation of the Petitioner’s

due process rights, is in violation of lawful procedure,

is otherwise affected by error of law, is made in bad

faith, is arbitrary and capricious, is not based upon

substantial evidence, is irrational and is in abuse of

any discretion properly vested in [respondents].

Petitioner participated in Police Officer

Examination No. 2000 for the position of Nassau

County Police Officer with the Nassau County Police

Department. The examination was administered by

respondent Commission. By letter dated January 28,

2015, respondent Commission informed petitioner that

it reviewed his medical records and placed him on

“medical hold to complete endocrine and cardiac

evaluations.” By an additional letter dated January 28,

App. 28

2015, respondent Commission requested that petitioner

have his endocrinologist and cardiologist review

medical documentation and to submit their own

medical documentation to respondent Commission. See

Petitioner’s Verified Petition Exhibits A and B.

Counsel for petitioner submits that “[b]y letter

dated March 2, 2015, Petitioner’s cardiologist, Daniel

M. Appelbaum, M.C., FACC notified the Commission

that he evaluated Petitioner. Dr. Appelbaum further

stated, ‘Mr. Roth is very healthy and has no exercise

restrictions, which would include running a mile and a

half.’ In addition to his letter, Dr. Appelbaum provided

the Commission with an Exercise Stress Test Report,

which report indicated no cardiac problems. . . . Dr.

Appelbaum’s letter fully addressed the Respondents’

concern regarding Petitioner’s cardiac health, reporting

to the Commission that there were no cardiac concerns.

By letter dated May 27, 2015, Petitioner’s

endocrinologist, Perry B. Herson, M.D., F.A.C.E.,

notified the Commission that Petitioner’s ‘glycemic

control is excellent and he has had no episodes of

hypoglycemia’. Dr. Herson further stated, ‘I believe

[Mr. Roth] would be fully able to perform his duties as

a Nassau County Police Officer.’ In addition, Dr.

Herson provided the Commission with medical

documentation supporting his medical opinion. . . . Dr.

Herson’s letter fully addressed the Respondents’

concern regarding Petitioner’s diabetes, reporting to

the Commission that Petitioner would be ‘fully able to

perform his duties as a Nassau County Police Officer.’

By letter dated April 8, 2015 contained within an

envelope postmarked April 10, 2015, the Commission

informed Petitioner that his candidacy for the position

App. 29

of Nassau County Police Officer had been disqualified

upon the following grounds: ‘endocrine condition

(insulin-dependent diabetes) which precludes ability to

fulfill the physical requirements of a police officer’. In

this letter nor at any other time, did Respondents state

exactly how Petitioner would not be able to fulfill the

physical requirements of a police officer. . . . By letter

dated April 20, 2015, the undersigned notified the

Commission that Petitioner was appealing the medical

disqualification. In this letter, the undersigned

requested that the Commission forward to the

undersigned’s attention, all documentation in the

possession of the Commission and the NCPD that were

used to form the basis of the disqualification

determination. In addition, it was requested that the

Commission grant a thirty (30) day extension of time

within which to submit documentation in support of

Petitioner’s appeal, which extension (sici) to begin from

the date the undersigned received the requested

information. This letter also informed the Commission

that Petitioner passed the NCPD’s physical fitness

screening test and that he was appointed as a New

York City Police Officer and that he was currently

training in the New York City Police Academy. . . . By

letter dated May 6, 2015, contained within an envelope

postmarked May 9, 2015, and received by the

undersigned on or about May 12, 2015, the undersigned

was informed that the Commission granted a twenty

(20) day extension of time from the date of the

postmark on the envelope to submit facts in opposition

to the disqualification. . . . The envelope from the

Commission postmarked May 9, 2015 did not contain

any medical documentation from the NCPD or the

Commission. Rather, the letter stated, ‘Craig Roth’s

App. 30

disqualification was based upon documents he provided

to the Civil Service Commission. Please ask your client

to provide you with those documents’. Notably, the

medical documents provided to the Commission by

Petitioner clearly indicated he was unequivocally

medically qualified for the position of police officer. By

letter dated May 22, 2015, the undersigned respectfully

requested that the Commission grant an additional

extension of time within which to submit

documentation in support of Petitioner’s appeal. . . . By

letter dated June 10, 2015, contained within an

envelope postmarked June 12, 2015, the undersigned

was informed that the Commission granted a final

twenty (20) day extension of time from the date of the

postmark on the envelope to submit facts in opposition

to the disqualification. . . . On June 25, 2015, Petitioner

submitted a legal brief and other documentation to the

Commission in opposition to the Commission’s

disqualification determination. . . . By letter dated July

8, 2015, the Commission notified Petitioner of its final

disqualification determination. This letter failed to

provide any explanation as to the specific reasons for

the disqualification. . . . By letter dated July 29, 2015,

the Commission informed the undersigned that it

decided to refer Petitioner to Nassau University

Hospital for an endocrinology evaluation. This letter

was dated exactly three (3) weeks after the date on the

Respondents’ final disqualification letter. . . . By letter

(sic) September 9, 2015, contained within an envelope

postmarked September 11, 2015, the Commission

stated in relevant part that it had reviewed ‘all

relevant materials regarding [Petitioner’s]

disqualification’. The Commission further stated it ‘has

determined that the appeal process for [Petitioner] has

App. 31

been completed’. . . . By email communication dated

September 16, 2015, the undersigned inquired of the

Commission whether its letter dated September 9, 2015

meant that the Commission was standing by its July 8,

2015 disqualification determination. The Commission

did not respond to this email inquiry. . . . The

Commission’s letter dated July 8, 2013 notified the

Petitioner of the Commission’s final disqualification

determination. However, the Commission’s letter dated

September 9, 2015 could potentially supersede the July

8, 2015 letter as the actual notice of the Commission’s

final disqualification determination, making the date

of the Commission’s final disqualification

determination, September 9, 2015 rather than July 8,

2015. Significantly, Respondents failed to indicate

specifically how Petitioner’s ‘endocrine condition

(insulin-dependent diabetes)’ would preclude his ability

to fulfill the physical requirements of police officer. The

Commission provided this reason for disqualification in

the absence of any explanation or evidence whatsoever

to support its validity. Further, and most notably,

Petitioner’s condition has not preclude, prevented or in

any way impaired his ability to pass the NCPD

physical fitness screening test. According to the

Commission’s website, the Nassau County Police

Officer Physical Fitness Screening Test requires

candidates to perform push-ups, sit-ups and a mile and

one-half run, within a specified period of time.

Petitioner’s successful completion of this examination

provided unequivocal evidence that Petitioner can

indeed fulfill the physical requirements of police officer

as the physical fitness test is designed to evaluate

whether a candidate can fulfill the physical

requirements of police officer. . . . Respondents’

App. 32

assertion that Petitioner cannot fulfill the physical

fitness requirements of police officer wholly discredits

and invalidates the NCPD’s own physical fitness

screening test.” See Petitioner’s Verified Petition

Exhibits C-P.

Counsel for petitioner argues, “[r]espondents failed

to conduct an individualized test of Petitioner to

determine whether Petitioner’s diabetes condition

currently prevents the Petitioner from performing in a

reasonable manner the particular activities involved in

the functions of a police officer. Respondents did not

conduct an individualized investigation into

Petitioner’s capabilities to perform the functions of a

police officer and relied solely on the fact that he has

diabetes in making its disqualification determination.

Respondents’ failure to conduct an individualized

examination of the Petitioner’s ability to perform the

duties of a police officer precluded the Respondents

from being able to render a rational determination,

rendering its final decision irrational and arbitrary and

capricious. Respondents failed to indicate specifically

how Petitioner’s diabetes condition would prohibit him

from performing the functions of a police officer. The

simple fact that Petitioner has diabetes does not in any

way indicate or even remotely suggest that he would be

unable to perform the physical functions of a police

officer. Respondents engaged in sheer and unsupported

speculation about Petitioner’s physical capabilities and

a decision based upon nothing but speculation about

his physical capabilities is arbitrary and capricious and

may be actionable pursuant to the American’s with

Disabilities Act as that Act protects individuals from

App. 33

employment discrimination based upon an actual or

perceived disability.”

In opposition to the Verified Petitioner, counsel for

respondents asserts, “[p]etitioner took the civil service

exam for police officers. He took and passed the written

portion of the exam. In 2014, petitioner was reachable

off the civil service list and was given a conditional

offer of employment. As part of the conditional offer of

employment, petitioner was required to undergo a

physical medical examination. The purpose of the

examination was to determine whether the petitioner

was able to perform the essential functions of the police

officer position with or without an accommodation. The

medical assessment was performed by Dr. Tapply, the

Medical Director for the Civil Service Commission. Dr.

Tapply is familiar with the job duties and functions of

the police officer position. Dr. Tapply is also familiar

with the Municipal Police Training Council (‘MPTC’),

the physical standards used to determine if a candidate

meets the physical qualifications of the police officer

position. Dr. Tapply oversees all medical examinations

of the police officer candidates. During the course of the

medical assessment, the petitioner disclosed that he

had diabetes. As a result, petitioner was placed on a

medical hold and was asked to submit his blood glucose

logs for the prior two years. On January 28, 2015,

petitioner was instructed to have his private

endocrinologist provide a report of his condition. . . .

Upon receipt of the reports, Dr. Tapply reviewed

petitioner’s medical records and learned that petitioner

had multiple ambulance calls involving low blood

sugar, confusion, and passing out. Additionally, on at

least four occasions, petitioner was treated for episodes

App. 34

involving seizures. For these reasons, Dr. Tapply

recommended that petitioner be disqualified from the

position of police officer. . . . On April 1, 2015, the

Commission reviewed the medical notes and

disqualified petitioner from the position of police

officer . . . . On April 29, 2015, petitioner was granted

a twenty day extension of time to appeal the

Commission’s determination. On June 3, 2015,

petitioner was granted a final twenty day extension of

time to appeal. On July 1, 2015, the Commission

reviewed the petitioner’s appeal. As part of his appeal,

the petitioner submitted his original blood glucose logs.

The appeal did not provide any additional information

except a note dated 05/27/2015 from the petitioner’s

private endocrinologist stating the petitioner would be

able to perform the duties of a police officer. . . . The

Commission denied the petitioner’s appeal. . . .

Although the Commission denied his appeal, it agreed

to send the petitioner for a further evaluation to an

endocrinologist. Petitioner was then examined by

David Rosenthal, M.D., who also reviewed the job

specifications for a police officer in connection with his

evaluation. In addition, upon information and belief,

petitioner provided Dr. Rosenthal with letters from Dr.

Perry Herson, his treating endocrinologist, and Dr.

Lorber. After a full and complete examination, Dr.

Rosenthal found that the job requirements of a police

officer inevitably raise concerns regarding the stability

of glycemic control, especially the potential for

significant hypoglycemia under conditions of episodic

‘bursts’ of severe physical exertion. The type of physical

activity also raises concern regarding pump damage,

malfunction and dislodgment of the subcutaneous

insulin delivery needle. Should excessive glucose

App. 35

excursions occur, and especially significant

hypoglycemia, this might impair cognitive and physical

danger to Mr. Roth as well as possibly others in the

vicinity. Dr. Rosenthal concluded his report by stating

[i]n my medical opinion, the potential for glycemic

instability which may occur during the performance of

the duties of a Nassau County police office (sic) is

troubling and significant. The lack of such an event

during his prior work experience is reassuring but does

not preclude future problems should he become a

member of the Nassau County Police Department. . . .

Based on Dr. Rosenthal’s report, Dr. Tapply

recommended that petitioner remain disqualified for

the position of police officer. The Commission reviewed

Dr. Tapply’s recommendation and Dr. Rosenthal’s

report (including the letters from Dr. Herson and Dr.

Lorber). On September 2, 2015, the Commission ruled

that Mr. Roth remained disqualified, and declared his

appeal process completed.” See Respondents’

Affirmation in Opposition Exhibits B-H.

Counsel for respondents argues, “[t]he

Commission’s decision to disqualify Petitioner was

rational and must be affirmed. Petitioner was

examined by Dr. Tapply, a qualified medical

professional, who reviewed petitioner’s medical history

and determined that his uncontrolled endocrine

condition precludes his ability to perform the essential

functions of a police officer. In particular, if hired as a

police officer, petitioner would be required to, among

other things, locate, pursue, and arrest suspected

criminals and rescue individuals at accidents,

emergencies, and disasters. Petitioner’s medical history

raises highly plausible concerns that he might

App. 36

experience another bout of confusion, passing out, or

seizure without prior notice, which would preclude his

ability to perform these functions. Accordingly, the

Commission’s decision to disqualify Petitioner was

based in reason and evidence and was neither arbitrary

or capricious. Moreover, petitioner was given the

opportunity to submit evidence in opposition to his

disqualification on appeal. Nevertheless, the only new

information that petitioner submitted was a

handwritten note by petitioner’s endocrinologist

opining that petitioner would be able to perform the

duties of a police officer. After considering the new

evidence, the Commission decided to affirm his

disqualification. Under these circumstances, the

Commission’s decision to disqualify the petitioner was

entirely rational. [citations omitted]. Finally, the fact

that the Commission reached a different conclusion

from petitioner’s personal endocrinologist is

irrelevant.”

Counsel for respondents further asserts the fact

“[t]hat the Respondents failed to attach documents

addressing the considerations used in disqualifying

Petitioner and only provided letters informing plaintiff

of his disqualification and right to appeal are equally

unpersuasive. Section 50 of the N. Y. Civil Service Law

permits municipal commissions to refuse to certify a

candidate for a number of reasons, including if a

candidate is ‘found to have a disability which renders

him or her under (sic) to perform in a reasonable

manner the duties in which he or she seeks

employment.’ [citation omitted]. Section 50 further

provides that ‘[n]o person shall be disqualified

pursuant to this subdivision unless he has been given

App. 37

a written statement of the reasons therefore and

afforded an opportunity to make an explanation and to

submit facts in opposition to such disqualification.’

[citation omitted]. Petitioner’s own documentary

evidence, a copy of the April 8, 2015 letter from the

Commission, confirms that the Respondents did comply

with the mandates of Civil Service Law § 50(4). It is

unrefuted that Petitioner received written notification

stating the reason for his disqualification and the letter

plainly gave the petitioner the opportunity to make an

explanation and to submit facts in opposition to

disqualification. Clearly, Petitioner understood this

because he did submit information in opposition to his

disqualification and has been represented by counsel

since the beginning of the appeal process. In any event,

Civil Service Law § 50(4) does not require the

Commission to have been any more specific than the

statement originally provided to Petitioner, which

stated that he was disqualified ‘upon the following

grounds: endocrine condition (insulin-dependent

diabetes) which precludes ability to fulfill the physical

requirements of a Police Officer.’ Finally, Petitioner’s

claim that the Commission violated his due process

rights by informing him of his disqualification without

attaching the documents is simply wrong and without

basis in law.”

New York State Civil Service Law § 50, entitled

“Examinations generally” provides, inter alia, as

follows:

1. Positions subject to competitive examinations.

The merit and fitness of applicants for positions

which are classified in the competitive class

App. 38

shall be ascertained by such examinations as

may be prescribed by the state civil service

department or the municipal commission having

jurisdiction. . . .

4. Disqualification of applicants or eligibles. The

state civil service department and municipal

commissions may refuse to examine an

applicant, or after examination to certify an

eligible

(a) who is found to lack any of the established

requirements for admission to the examination

or for appointment to the position for which he

applies; or

(b) who is found to have a disability which

renders him or her unfit to perform in a

reasonable manner the duties of the position in

which he or she seeks employment, or which

may reasonably be expected to render him or her

unfit to continue to perform in a reasonable

manner the duties of such position; . . . .

Moreover, New York Civil Service Law § 58, entitled

“Requirements for provisional or permanent

appointment of certain police officers” provides for the

establishment of more stringent qualifications for law

enforcement applicants providing at subsection (2) as

follows:

2. The provisions of this section shall not

prevent any county, city, town, village, housing

authority, transit authority or police district

from setting more restrictive requirements of

eligibility for its police officers, except the

maximum age to be a police officer as provided

App. 39

in paragraph (a) of subdivision one of this

section.

It is well settled that the standard for judicial

review of an administrative determination pursuant to

CPLR Article 78 is limited to an inquiry into whether

the agency acted arbitrarily and/or capriciously, i.e.,

without any sound basis in reason. See Matter of Pell v.

Board of Education of Union Free School District No. 1,

34 N.Y.2d 222, 356 N.Y.S.2d 833 (1974). An appointing

authority such as respondents has wide discretion in

determining the fitness of candidates. This discretion

is particularly broad in the hiring of persons for

position in law enforcement, to whom high standards

must be applied. See Tardif v. Town of Southold, 56

A.D.3d 755, 868 N.Y.S.2d 143 (2d Dept. 2008) quoting

Matter of Mullen v. County of Suffolk, 43 A.D.3d 934,

841 N.Y.S.2d 648 (2d Dept. 2007); Matter of Verme v.

Suffolk County Dept of Civ. Serv., 5 A.D.3d 498, 773

N.Y.S.2d 106 (2d Dept. 2004); Needleman v. County of

Rockland, 270 A.D.2d 423, 704 N.Y.S.2d 887 (2d Dept.

2000). Courts will not interfere with the discretion of

the appointing authority to determine the

qualifications of candidates unless the determination

warrants judicial intervention on the grounds that it is

irrational and arbitrary. See Matter of Winnegar v.

County of Suffolk, 13 A.D.3d 382, 785 N.Y.S.2d 524 (2d

Dept. 2004). The fact that the opinion of petitioner’s

privately retained expert is contrary to that of

respondents’ expert is not controlling. Matter of Keryc

v. Nassau County of Civil Service Comm., 143 A.D.2d

669, 533 N.Y.S.2d 6 (2d Dept. 1988). It is not for the

courts to choose between diverse professional opinions.

See Brussel v. LoGrande, 137 A.D.2d 686, 524 N.Y.S.2d

App. 40

775 (2d Dept. 1988). Indeed, “[a]n appointing authority

is entitled to rely upon the findings of its 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.” Thomas v. Straub, 29 A.D.3d

595, 818 N.Y.S.2d 90 (2d Dept. 2006) citing Winnegar

v. County of Suffolk, supra; Matter of Curcio v. Nassau

County Civil Serv. Commn., 220 A.D.2d 412,631

N.Y.S.2d 881 (2d Dept. 1995). Therefore, where there

is any rational basis or credible evidence in support of

an agency’s determination, the decision will be upheld.

See Matter of Curcio v. Nassau County Civil Service

Commission, supra.

In the instant matter, respondents have clearly

presented a rational basis for their determination to

disqualify petitioner – respondents relied upon expert

recommendations from Dr. Tapply and Dr. Rosenthal.

Moreover, respondents permitted a full appeal of the

disqualification and they reviewed the submitted

reports and evaluation of petitioner. The Court, having

examined the proof submitted by both petitioner and

respondents, finds that respondents’ determination was

not irrational, but rather supported by substantial

evidence. There is no basis for the Court to conclude

that the actions of respondents were not in

conformance with the policy and procedures that are

part of the normal course of business within

respondent Nassau County Civil Service Commission

(emphasis added).

Accordingly, respondents’ determination is upheld.

App. 41

Therefore, petitioner’s application, pursuant to

CPLR Article 78, for a judgment annulling, reversing

and setting aside respondents July 8, 2015

determination or, in the alternative, the September 9,

2015 determination which affirmed the decision to

disqualify petitioner from consideration for the position

of police officer with the Nassau County Police

Department and reinstating petitioner to the eligible

list as an eligible candidate for Police Officer

Examination No. 2000, established by respondent

Nassau County Civil Service Commission for the

position of Nassau County Police Officer, or, in the

alternative, for an order directing respondents to

conduct a hearing whereat petitioner has the

opportunity to present evidence in support of his

appeal or, in the alternative, and in lieu of affirming

respondents’ determination, for an order scheduling a

trial pursuant to CPLR § 7804(h) is hereby DENIED

in its entirety and the Verified Petition is hereby

dismissed.

This constitutes the Decision and Order of this

Court.

ENTER:

s/___________________________

DENISE L. SHER, A.J.S.C.

XXX

Dated:

Mineola, New York

May 3, 2016