Petitioner, Darryl K. Sweeny, commenced this Article 78 proceeding against respondents, the New York City Civil Service Commission (Commission) and the City of New York. Petitioner seeks to annul the Commission's decision that affirmed the New York City Department of Correction's (DOC) determination to disqualify petitioner's application for a correction officer position. The DOC disqualified petitioner on the grounds that petitioner had dislocated the same shoulder five times and that petitioner's hearing and vision were below the required threshold for correction officers. Petitioner also seeks that respondents be ordered to make reasonable accommodations for petitioner's medical disabilities under Executive Law § 296. Respondents cross-move to dismiss on several grounds: (1) the petition is time-barred under CPLR 217 (1); (2) the Commission's decision was not arbitrary or capricious; (3) the petition is barred by the election-of-remedies doctrine; and (4) that petitioner failed to state a cause of action under the class-of-one theory or Executive Law § 296.

Respondents' motion to dismiss the petition is granted because the Commission's decision affirming the DOC's determination was not arbitrary or capricious.

The petition is timely. An Article 78 proceeding must be brought within four months from the time that a final determination becomes binding on petitioner. (CPLR 217 [1].) The Commission's final decision is dated November 10, 2014. Petitioner had until March 10, 2015, to commence this proceeding. Petitioner commenced this proceeding on March 9, 2015. Therefore, the petition is not time-barred.

The Commission's decision affirming the DOC's disqualification of petitioner's application for a correction officer position was neither arbitrary nor capricious. A court may not annul an agency's determination unless, on review, the court finds the determination is arbitrary and capricious: without sound basis in reason and generally taken without regard to the facts. (Matter of Pell v Bd. of Educ. of Union Free School Dist., 34 NY2d 222, 231 [1974].) The DOC has particularly broad discretion in hiring law enforcement officers. (Verme v Suffolk County Dept of Civ. Serv., 5 AD3d 498, 498 [2d Dept 2004]; see also Matter of Guynup v County of Clinton, 90 AD3d 1390, 1391 [3d Dept 2011] [noting that a correction officer is a law enforcement officer].) The DOC may apply high standards to correction officer applicants. (Verme, 5 AD3d at 498.) In determining whether a candidate is medically qualified to serve as a correction officer, the appointing authority is entitled to rely on its own medical personnel's findings, even if those findings are contrary to those of professionals retained by the candidate. (City of New York v New York City Civ. Serv. Commn., 61 AD3d 584, 584-585 [1st Dept 2009].)

The DOC requires applicants to undergo a medical evaluation to determine whether applicants can perform the essential functions of a correction officer. (Notice of Petition, Exhibit A.) The DOC evaluates applicants under the Medical and Physical Standards for Correction Officer Candidates (Medical Guidelines). (Notice of Cross-Motion, Exhibit 3.) The Medical Guidelines provide that if an applicant has dislocated the same shoulder two or more times, the applicant is not qualified to perform the essential functions of a correction officer. (Notice of Cross-Motion, Exhibit 3.) Those essential functions are: (1) the ability to endure and respond to unprovoked, unexpected and spontaneous physical assault; and (2) to control inmate disturbances or outbreaks by using body holds, take downs, arm blocks, leg blocks, punches, riot gear, batons, restraints, and handcuffs. (Id.) Correction officers must also respond to emergencies by pulling, dragging, running, and lifting while holding or carrying equipment and a conscious or unconscious body. (Id.) The DOC may disqualify an applicant on the basis of two or more dislocations of the same shoulder regardless whether the applicant's shoulder was surgically repaired. (Id.) Petitioner's evaluation by the DOC's medical unit revealed that he dislocated his left shoulder five times. (Notice of Cross-Motion, Exhibit 1.) Petitioner does not dispute this fact.

On his appeal, petitioner submitted his own medical evaluations. Petitioner's physician opined that after petitioner's shoulder surgery, petitioner was clinically fit to perform a correction officer's duties. (Notice of Petition, Exhibit F.) Petitioner's physician did not state what his understanding of a correction officer's duties included. (See id.) The Medical Guidelines state that an applicant is disqualified regardless whether an applicant has surgery. The DOC is also entitled to rely on its own medical unit's evaluations; the DOC need not rely on petitioner's physician's opinion. Therefore, the Commission had sound basis in reason to affirm the DOC's broad use of discretion to disqualify petitioner's application.

The petition is not barred by the election-of-remedies doctrine. The election of remedies doctrine only bars a petitioner from commencing an Article 78 proceeding when by law, or by contract, petitioner previously had a choice between two remedies and chose one. (Metro. Life Ins. Co. v Childs Co., 230 NY 285, 291 [1921].) Respondents argue that petitioner's two options after being disqualified by the DOC were to either appeal to the Commission or to commence an Article 78 proceeding. But when the DOC disqualified petitioner, petitioner had one remedy — to appeal to the Commission. (Notice of Petition, Exhibit C; CPLR 7801). Petitioner then appealed to the Commission. Petitioner did not choose between two remedies. Therefore, the election-of-remedies doctrine is inapplicable and does not bar the petition.

Petitioner has not established a cause of action under the class-of-one equal protection theory. A petitioner may bring a class-of-one equal protection claim by alleging that an agency intentionally treated the petitioner differently from others similarly situated and that there is no rational basis for the difference in treatment. (Fierro v New York City Dept. of Educ., 994 F Supp 2d 581, 591 [SDNY 2014].) The DOC is a public employer. Public employers' duties involve discretionary decision-making based on a vast array of subjective, individualized assessments. (Engquist v Oregon Dept. of Agric., 553 US 591, 603 [2008].) Thus, the class-of-one theory does not apply to public employers such as the DOC. (See id. at 605.) Therefore, petitioner does not establish a cause of action under the class-of-one equal protection theory.

Petitioner has not established a cause of action for unlawful discrimination based on a disability under Executive Law § 296. Petitioner's shoulder dislocations do not qualify as a disability under Executive Law § 292. An employer may not discriminate against a potential or current employee based on disability. (Executive Law § 296 [1].) Under Executive Law § 292 (21), a disability is defined as a physical or medical impairment that prevents the exercise of a normal bodily function or is demonstrable by medically accepted clinical or laboratory diagnostic techniques, or there is a record of such impairment. For employment purposes, the term disability is limited to those conditions that with reasonable accommodations do not prevent the potential or current employee from reasonably performing the activities the job entails. (Id.) According to the DOC, a shoulder dislocation prevents employees from reasonably performing the activities of a correction officer. (Notice of Cross-Motion, Exhibit 3.) Petitioner has had five shoulder dislocations. (Notice of Cross-Motion, Exhibit 1.) Petitioner does not allege what type of reasonable accommodations the DOC must provide him for his shoulder dislocations to reasonably perform a correction officer's duties. Nor does petitioner allege that he requested reasonable accommodations from the DOC for his shoulder dislocations. Therefore, petitioner has not established a cause of action under Executive Law § 296.

Petitioner's remaining arguments are unpersuasive.

The court need not address petitioner's argument that the DOC provide him a reasonable accommodation for his hearing and vision. Petitioner's shoulder dislocations were a sufficient basis for the DOC to disqualify petitioner.

Accordingly, it is hereby ORDERED and ADJUDGED that respondents' cross-motion to [*2]dismiss is granted and this petition is dismissed.

This opinion is the court's decision and order.