IN RE: Kevin O'NEILL (2008)

Determination of respondent Fire Department's Commissioner, dated October 13, 2005, terminating petitioner's employment as a firefighter, unanimously confirmed, the petition denied, and the proceeding brought pursuant to CPLR article 78 (transferred to this Court by order of Supreme Court, New York County [William A. Wetzel, J.], entered June 12, 2007), dismissed, without costs.

The penalty of termination for testing positive for marijuana during a random drug test under a zero tolerance policy in effect at the time of the decision does not shock the conscience (see Trotta v. Ward, 77 N.Y.2d 827, 566 N.Y.S.2d 199, 567 N.E.2d 241 [1991];  Matter of Kirk v. City of New York, 47 A.D.3d 406, 848 N.Y.S.2d 169 [2008];  Matter of McGovern v. Safir, 266 A.D.2d 107, 698 N.Y.S.2d 477 [1999] ).   Although petitioner alleges that changes have been made to the Fire Department's policy regarding marijuana usage subsequent to petitioner's termination, we reject petitioner's claim that the changes should be retroactively applied to his case (see Matter of Solomon v. Department of Bldgs. of City of N.Y., 46 A.D.3d 370, 372, 847 N.Y.S.2d 568 [2007] ).