Article 78 appeal from NYPD medical disqualification for hearing impairment

Matter of Antonio Cardona v City of New York Civil Service Commission

Petitioner, Antonio Cardona, brought about this Article 78 proceeding to vacate his disqualification for appointment as a Police Officer with the New York City Police Department (NYPD).

Petitioner passed the written portion of the exam and was placed on the eligible list for a position as a police officer but then failed three pure tonal hearing tests and was subsequently disqualified. Petitioner filed an appeal and submitted two medical reports. Both doctors stated that they did not feel that Mr. Cardona’s mild hearing loss in his left ear would interfere with his ability to perform the duties of a police officer. The Civil Service Commission reviewed this case and affirmed the NYPD’s decision to disqualify Petitioner. Petitioner then filed this Article 78 appeal to review the determination.

Petitioner argued that the pure tonal hearing test administered by the NYPD was not rationally related to the duties of a police officer and that his disqualification violated New York Executive Law § 296, prohibiting discrimination against an applicant based on a disability.

The Court disagreed with Mr. Cardona’s first argument and felt that the use of a pure tonal test was related to police officer functions in that is serves to set a hearing standard for applicants. In response to Petitioner’s accusations of discrimination, the Court agreed. Since Petitioner did have a disability under Executive Law § 296, the NYPD needed to prove that his hearing loss would prevent him from performing in a reasonable matter. NYPD would need to conduct an individualized test and since they merely relied on the results of three pure tonal hearing tests, they only proved Petitioner suffered from a hearing disability, not that he was unable to perform the duties of a police officer. Plus the reports from Petitioner’s two doctors and seven affidavits from current and retired NYPD officers all stated that he would be an effective Police Officer.

Accordingly, the Supreme Court granted petition and remanded this matter to the New York City Police Department to make an “individualized” determination consistent with Executive Law § 296.

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