IN RE: Ian Scott WILSON

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Supreme Court, Appellate Division, Second Department, New York.

IN RE: Ian Scott WILSON, petitioner, v. CITY OF WHITE PLAINS, etc., et al., respondents.

Decided: March 29, 1999

DANIEL W. JOY, J.P., WILLIAM D. FRIEDMANN, ANITA R. FLORIO and DANIEL F. LUCIANO, JJ. Gleason, Dunn, Walsh & O'Shea, Albany, N.Y. (James E. Dering of counsel), for petitioner. Edward P. Dunphy, Corporation Counsel, White Plains, N.Y. (Daniel K. Spencer of counsel), for respondents.

Proceeding pursuant to CPLR article 78 to review a determination of the respondent City of White Plains Commissioner of Public Safety dated December 26, 1996, which adopted the recommendation of a Hearing Officer, made after a hearing, finding the petitioner guilty of six charges of misconduct and terminating him from his position as a firefighter with the City of White Plains Fire Department.   Justice Friedmann has been substituted for former Justice Pizzuto (see, 22 NYCRR 670.1[c] ).

ADJUDGED that the petition is granted, on the law, with costs, the determination is annulled, the petitioner is reinstated to his position as a firefighter with the City of White Plains Fire Department, and the matter is remitted to the respondents for the calculation of back pay and benefits to which the petitioner may be entitled.

We agree with the petitioner's contention that he was improperly directed to submit to blood and urine tests.   In directing the petitioner to take these tests, the respondents relied upon an unsubstantiated and anonymous letter.   There was no objective evidence which would have suggested that the petitioner was abusing alcohol or drugs.   Thus, the respondents' directive under these circumstances was arbitrary and without even a minimal basis of justification (see, Matter of Fiorenza v. Gunn, 140 A.D.2d 295, 527 N.Y.S.2d 806;  see also, Matter of Wilder v. Koehler, 161 A.D.2d 331, 556 N.Y.S.2d 28;  Matter of McCarthy v. Board of Regents, 177 A.D.2d 889, 576 N.Y.S.2d 649;  cf., Matter of Washington v. Dolce, 208 A.D.2d 937, 617 N.Y.S.2d 533;  Matter of Felder v. Kelly, 210 A.D.2d 78, 619 N.Y.S.2d 45).

In light of the foregoing we need not reach the petitioner's remaining contentions.

MEMORANDUM BY THE COURT.

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