BLITZER v. NEW YORK CITY TRANSIT AUTHORITY (2004)

Order, Supreme Court, New York County (Robert D. Lippmann, J.), entered February 28, 2003, which granted defendant's motion to dismiss the complaint, unanimously affirmed, without costs.

 The complaint fails to state a claim for either gender or disability discrimination in the hiring process.   The assertion that plaintiff was a member of a protected subclass of “attractive males” failed to identify a recognized class protected by statute (see generally Kent v. The Papert Cos., 309 A.D.2d 234, 764 N.Y.S.2d 675 [2003] ).

 Plaintiff has failed to state a claim for disability discrimination predicated on his hypoglycemia and past drug use.   Having been formally rejected for the position for failure to meet the “medical and/or physical requirements” for the job, he failed to allege that his admitted disabilities would not prevent him from performing the duties of subway conductor in a reasonable manner (see Executive Law § 292[21] ).

 The complaint also failed to state a claim for breach of contract. Nowhere did plaintiff allege or show that he had actually received an appointment to the position of conductor.   Simply passing a qualifying test, without more, does not create a contractual right to the position (see Matter of Andriola v. Ortiz, 82 N.Y.2d 320, 604 N.Y.S.2d 530, 624 N.E.2d 667 [1993], cert. denied sub nom. Andriola v. Antinoro, 511 U.S. 1031, 114 S.Ct. 1541, 128 L.Ed.2d 193 [1994] ).

We have considered plaintiff's remaining arguments and find them unavailing.