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In the Matter of MICHAEL KIRK, Petitioner, v. CITY OF NEW YORK et al., Respondents.

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 AD2d 334, lv denied 96 NY2d 720; Matter of Gibson v Koehler, 165 AD2d 768). Petitioner's contention that the Department's random drug testing policy is unconstitutional is without merit ( see Matter of Seelig v Koehler, 76 NY2d 87, cert denied 498 US 847), and the penalty of termination for substance abuse does not shock the conscience ( Matter of Reinhard v City of New York, 34 AD3d 376, 378, lv denied 8 NY3d 808 [2007]).

Although alcohol dependency qualifies as a disability under the Human Rights Law (Executive Law § 292; see Matter of McEniry v Landi, 84 NY2d 554), drug abuse does not ( Gilmore v University of Rochester Strong Mem. Hosp. Div., 384 F Supp 2d 602 [WD NY 2005]; and see Weinstock v Columbia Univ., 224 F3d 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).

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KIRK v. NEW YORK
(Jan 3, 2008)