IN RE: Anthony ALTIERI (2008)

Order and judgment (one paper), Supreme Court, New York County (Walter B. Tolub, J.), entered September 27, 2007, which granted respondents' cross motion to dismiss an article 78 proceeding seeking to annul respondents' determination disqualifying petitioner from consideration for the position of sanitation worker on medical grounds, unanimously affirmed, without costs.

The proceeding was properly dismissed for lack of allegations sufficient to show that petitioner's cardiac condition does not rationally support the disqualification.   In arriving at their determinations, respondents were entitled to rely on the opinion of respondent Department of Sanitation's medical director that petitioner's appointment as a sanitation worker would put him at serious risk.   The conflicting opinion of petitioner's treating medical physician does not tend to show that respondent “acted illegally or capriciously or adopted a professional opinion not founded on a rational basis” (McCabe v. Hoberman, 33 A.D.2d 547, 304 N.Y.S.2d 497 [1969] ).   In view of the foregoing, petitioner's medical disqualification cannot be the predicate of a discrimination claim under Executive Law § 296(1)(a) (see Bellamy v. City of New York, 14 A.D.3d 462, 788 N.Y.S.2d 382 [2005];  O'Sullivan v. City of New York, 38 A.D.3d 467, 469, 834 N.Y.S.2d 30 [2007], lv. denied 9 N.Y.3d 804, 840 N.Y.S.2d 764, 872 N.E.2d 877 [2007] ).