Petitioner, Rickey Lall, commenced this Article 78 proceeding against respondents, the New York City Civil Service Commission (CSC), the Fire Department of the City of New York (FDNY), and the City of New York, to (1) annul and reverse respondents' determination disqualifying petitioner from the position of firefighter; (2) direct the appointment of petitioner to the position of firefighter; (3) return petitioner to the eligible list for firefighters; or (4) conduct a trial pursuant to CPLR 7804 (h) to determine whether respondents' decision to disqualify petitioner for the position of firefighter was arbitrary, capricious, irrational, and in bad faith.

On April 21, 2014, the FDNY medically disqualified petitioner because he did not meet the FDNY's medical standards for firefighters. Petitioner appealed that decision to the CSC. On November 12, 2014, the CSC affirmed the FDNY's decision to medically disqualify petitioner.

In his petition, petitioner alleges that he passed the written exam for the position of firefighter. He states that he completed the physical exams but failed the stair-master test twice. Petitioner argues that FDNY's decision was arbitrary and capricious because it supposedly failed to consider (1) his third attempt at the stair-master test and (2) his independent physicians' opinions that he has abnormally low exam results because of his race. Respondents argue that the petition is untimely; that the FDNY and CSC decisions to medically disqualify petitioner are not arbitrary and capricious; and that the FDNY is an improper party to this petition.

Respondents argue that the petition should be dismissed because the statute of limitations has expired. CPLR 217 (1) provides that a petitioner must commence an Article 78 proceeding within four months. A petitioner must exhaust all administrative remedies before commencing an Article 78 proceeding. (CPLR 217 [1].)

Petitioner received FDNY's denial on April 21, 2014, and then appealed the decision to the CSC, exhausting his administrative remedies. The CSC's final decision to disqualify petitioner was rendered on November 12, 2014. Petitioner had four months from November 12, 2014, to file an Article 78 proceeding. Petitioner filed his Article 78 Proceeding on March 10, 2015. Therefore, the petition is timely.

The CSC's decision to disqualify petitioner was not arbitrary and capricious. Respondents had a reasonable basis to medically disqualify petitioner. Respondents were entitled to rely solely on the medical opinions of its agency physicians.

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].) An agency's decision relying solely on its agency appointed physicians is not arbitrary or capricious: "judicial review is limited to a determination whether the petitioner's disqualification was arbitrary or capricious. Where appellant Commission was confronted with conflicting medical opinion concerning the petitioner, its reliance upon the advice of its own medical staff cannot be considered arbitrary or capricious." (Albury v New York City Civ. Serv. Commn. Dept. of Personnel, 32 AD2d 895, 895 [1st Dept 1969], affd 27 NY2d 694 [1970].)

An applicant must pass the stair-master test, one of the required tests to qualify as an FDNY firefighter. After petitioner failed his first stair-master test, respondents administered additional medical exams with respondents' physicians, Dr. Kenneth Berger, the Medical Director of the Pulmonary Function Laboratory at Langone Medical Center, and Dr. Michael Weiden, a pulmonary specialist who conducted an echocardiogram, a methacholine challenge test, and a pulmonary function test.

Dr. Berger and Dr. Weiden determined that petitioner's results were abnormal under FDNY's hiring standards for firefighters and recommended that the FDNY medically disqualify petitioner. After the FDNY medically disqualified petitioner, petitioner appealed to the CSC. Dr. Kerry Kelly, Chief Medical Officer for the FDNY Bureau of Health Services, reviewed Dr. Berger and Dr. Weiden's opinion. Dr. Kelly agreed with both FDNY physicians and recommended that the CSC affirm petitioner's medical disqualification. The CSC affirmed the FDNY's decision.

Petitioner's results fell below the normal and acceptable range for all the breathing tests that respondents administered. On August 16, 2013, petitioner's breathing tests revealed that "he had abnormal breathing tests with a PFT of 77% and an FEV1 of 79% below the acceptable level of 80." (Respondents' Answer, Exhibit 4.) When respondents administered a stair-master test on August 16, petitioner "was unable to pass the stair master . . . due to evidence of a rapid heartbeat." (Respondents' Answer, Exhibit 4.) When respondents administered the second stair-master test on September 12, 2013, petitioner was unable to complete the evaluation. (Respondents' Answer, Exhibit 4.)

Respondents then sent petitioner for further evaluation for an echocardiogram as well as a methacholine challenge test to see whether underlying cardiopulmonary problems were the reason for his inability to complete the stair-master test. (Respondents' Answer, Exhibit 4.)

On November 4, 2013, respondents administered a pulmonary function test. (Respondents' Answer, Exhibit 4.) Petitioner's results on that test were "abnormal with an FVC of 72% and an FEV1 of 71% with no substantial improvement after bronchodilator treatment." (Respondents' Answer, Exhibit 4.) On November 29, 2013, petitioner underwent methacholine challenge testing. The test results revealed that petitioner had abnormal scores. (Respondents' Answer, Exhibit 4.) On the basis of these tests, respondents disqualified petitioner for the position of firefighter.

On his appeal, petitioner submitted additional methacholine challenge testing conducted at NYU Langone Medical Center. Petitioner's test results fell below the acceptable 80% score:

"This test again demonstrates abnormalities in the baseline FVC and FEV1 despite methacholine. Again testing reveals an FVC of 78, 80, 78, 76, 75, 75, 75. On exposure to bronchilator both FEV1 and FVC go up to 78, again below the normal acceptable 80%. By the NFPA guidelines the acceptable FVC and FEV1 are 80 or above." (Respondents' Answer, Exhibit 4.)

Dr. Weiden reviewed the test results and concluded that petitioner's abnormality is "not consistent with full [firefighter] duty." (Respondents' Answer, Exhibit 4.) On November 12, 2014, the CSC concluded:

"This individual [petitioner] remains unfit as a full duty firefighter with abnormal pulmonary function tests. He has demonstrated on multiple occasions these abnormalities. These are not consistent with the activity of full firefighting. In his six-minute walk, this individual was [*2]wearing no equipment. He was not climbing stairs. He was not wearing bunker gear and the 50 lb. of gear that he is required as a full duty firefighter. There is evidence that he has a restriction in his lung capacity demonstrated by a reduced FEV1 as well as FVC on multiple occasions. He remains unfit for full duty. A lung condition is a category A condition in which the member's safety as well as fellow firefighters safety is at risk due to an underlying problem such as this. This is not compatible with full duty." (Respondents' Answer, Exhibit 4.)

Petitioner argues that respondents' decision was arbitrary and capricious because they did not consider his third attempt at the stair-master test. Petitioner contends that he passed the stair-master test in his third attempt, but he provides no proof of that.

Petitioner also contends that the decision to medically disqualify him was arbitrary and capricious because respondents did not consider his doctors' conclusions that his ethnicity was not evaluated correctly under the NHANES III formulaic calculation. The FDNY factors an applicant's ethnic identification into the NHANES III test, which is a formulaic calculation the FDNY uses in pre-hiring assessments to determine an applicant's fitness to become a firefighter. (Respondents' Answer at 5, ¶31-34.) The NHANES III test calculates an applicant's ethnic selection into averages for people of similar height and build. (Respondents' Answer at 5, ¶31-34.) The FDNY's applications provide ethnicity categories for applicants to select. Each applicant may select an ethnic category with which an applicant most identifies. (Respondents' Answer at 5, ¶31-34.) Petitioner identified himself as "Asian." (Respondents' Answer at 6, ¶ 37.)

Petitioner first saw Dr. Roberta Lenner, a pulmonary specialist, evaluated petitioner when he applied to the New York City Police Department. Dr. Lenner concluded that "the most likely explanation for his abnormal lung function study is that it is a physiologic variant related to his race and body habitus (as all reference values were established in Caucasian males) rather than due to any lung or heart disease and it should not interfere with his ability to be employed." (Petitioner's Notice of Petition, Exhibit H.)

After the FDNY medically disqualified petitioner, he sought another medical opinion from Dr. Thomas Aldrich, a pulmonologist with extensive experience in clinical research. Dr. Aldrich determined that petitioner's ethnicity might be a reason for his abnormal pulmonary exam results. Dr. Aldrich submitted in petitioner's appeal to the CSC the Fulambarker study, a pulmonary-function study focused on Indian-born immigrants. The participants in the study were physically born in India. It is unclear where petitioner was born. Petitioner says that his family comes from Guyana that his ancestors came from India. Nothing indicates that petitioner is an Indian-born immigrant. It is unclear whether the study applies to petitioner, but respondents are not required to consider external medical opinions or studies in their decision to medically disqualify petitioner.

Respondents' decisions were not arbitrary or capricious. Two FDNY physicians determined that petitioner is not medically fit to become a fire fighter. An agency may rely solely on its own agency physicians. Respondents need not rely on petitioner's physician opinions. Petitioner's doctors' conclusions are not dispositive.

Petitioner has not shown that Respondents violated Executive Law § 296 91) (a), which prohibits employers from discriminating on the basis of "age, race, creed, color, national origin, sexual orientation, military status, sex, disability, predisposing genetic characteristics, familial status, marital status, or domestic violence victim status."

Respondents relied on its agency physicians, both of whom determined that petitioner was not medically fit to be a firefighter. Although the NHANES III formulas were used in calculating petitioner's medical exam results, petitioner's disqualification was based on several individualized assessments based on petitioner's personal performance.

Petitioner fails to demonstrate that respondents violated New York Executive Law § 296. Respondents' decision to medically disqualify petitioner was based on several individualized medical exams and on objective medical evidence that gave them a rational basis to disqualify petitioner.

Whether the FDNY and CSC are both proper parties in this proceeding is academic, given the disposition in this proceeding

Accordingly, it is hereby ORDERED and ADJUDGED that the petition is denied and this proceeding is dismissed; and it further

ORDERED that counsel for respondents must serve a copy of this order with notice of entry on the County Clerk's Office, which is directed to enter judgment accordingly.

This opinion is the court's decision and order.