IN RE: Michael KIRK (2008)

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 Department terminated his employment.   Such determination was supported by substantial evidence (see Matter of Powell v. City of Newburgh, 284 A.D.2d 334, 725 N.Y.S.2d 883 [2001], lv. denied 96 N.Y.2d 720, 733 N.Y.S.2d 372, 759 N.E.2d 371 [2001];  Matter of Gibson v. Koehler, 165 A.D.2d 768, 564 N.Y.S.2d 265 [1990] ).   Petitioner's contention that the Department's random drug testing policy is unconstitutional is without merit (see Matter of Seelig v. Koehler, 76 N.Y.2d 87, 556 N.Y.S.2d 832, 556 N.E.2d 125 [1990], cert. denied 498 U.S. 847, 111 S.Ct. 134, 112 L.Ed.2d 102 [1990] ), and the penalty of termination for substance abuse does not shock the conscience (Matter of Reinhard v. City of New York, 34 A.D.3d 376, 378, 825 N.Y.S.2d 44 [2006], lv. denied 8 N.Y.3d 808, 834 N.Y.S.2d 89, 865 N.E.2d 1256 [2007] ).

 Although alcohol dependency qualifies as a disability under the Human Rights Law (Executive Law § 292[21];  see Matter of McEniry v. Landi, 84 N.Y.2d 554, 620 N.Y.S.2d 328, 644 N.E.2d 1019 [1994] ), drug abuse does not (Gilmore v. University of Rochester Strong Mem. Hosp., 384 F.Supp.2d 602 [W.D.N.Y.2005];  and see Weinstock v. Columbia Univ., 224 F.3d 33, 42 n. 1 [2d Cir.2000] ).   Petitioner failed to establish that his drug abuse was causally related to his alcoholism, and thus did not state a prima facie case of employment discrimination under Executive Law § 296(1).