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Decided on August 5, 2004
Supreme Court, Kings County

21323/03
Yvonne Lewis, J.
The petitioner seeks an order of this court annulling and rescinding the respondent's determination not to hire him; directing the removal of all references from his employment file concerning said refusal; and requiring that he be employed with back pay, vacation, personal and sick leave credit, and all other benefits to which he would have been entitled. In support of his request, the petitioner highlights the following salient points: 1. he was employed as a staff assistant in the Department of psychiatry by the State University of New York Health Science Center in Brooklyn [more commonly known as Downstate] since 1973; 2. During his thirty year tenure, he was assigned to work at the outpatient clinic of the Department of psychiatry at Kings County Hospital Center [Kings County] pursuant to a contract between Downstate and Health and Hospitals Corporation [HHC]; 3. as of January 1, 2003, his employment was scheduled to be transferred from the payroll of Downstate directly to the payroll of Kings County since the aforementioned contract had expired and not been renewed; 4. as per an agreement between Downstate and Kings County, all rollover employees would retain the same conditions of employment vis-a-vis, supervision (below and above), salary, work hours, and duties, save for the employer's name on paychecks; 5. on or about December 1, 2002, Mike Higgins, the director of the clinic, advised him that his ". . .many years of service had placed him in too high a salary level compared to his position. . .[and] recommended that he contact his union to ask if it would be possible for [him] to remain in a position at Downstate;" 6. on December 20, 2002, he was required to submit to a pre-employment physical examination at the Kings County employee health center where he was subjected to a tuberculosis test, complete blood work up, and a urine analysis/drug test; 7. after being advised on December 30, 2002 that he had tested positive for cocaine, he informed the respondent that the manufacturer of his high dosage of prescribed blood pressure medication labetol had advised that it could not be ruled out as the source of a "false positive" for cocaine; and, 8. on December 31, 2002, he again underwent blood and urine [*2]analyses, and on February 11, 2003 was advised of having again failed the drug test, as a result of which Kings County would not employ him.
The petitioner contends that the refusal to transfer him to the Kings County payroll was arbitrary, capricious, and an abuse of discretion given that his forced drug screening clearly constituted a violation of his constitutional rights under the Fourth Amendment and Article 1, section 12, respectively, of the Federal and New York State Constitutions, in that ". . .any public safety considerations in the job [security guard and supervisor/coordinating manager] petitioner was appointed to were not serious enough to make a pre-employment urine test for drugs a reasonable search for Fourth Amendment purposes." Counsel for the petitioner provided a series of cases detailing instances when pre-employment drug testing was and was not permissible; to wit, probationary teachers; non-uniformed narcotics personnel and members of the scientific investigations bureau [not permissible] (citing, Patchogue-Medford Congress of Teachers v. Board of Education, 70 NY2d 57, and Delaraba v. Nassau County Police Dept., 192 AD2d 655, respectively); Police officers assigned to enforce laws prohibiting drug use and trafficking; subway conductor [permissible] (citing, Caruso v. Ward, 72 NY2d 432 and Dozier v. New York City, 130 AD2d 128, respectively).
In substantiation of Mr. Jenning's competency [to do his job], petitioner's counsel provided a letter of recommendation on behalf of Mr. Jennings from the coordinating manager of Kings County Hospital Center, who advised that Mr. Jennings ". . .is responsible for assuring that . . .patients do not cause unnecessary disruption to the community by loitering in the vicinity of the clinic or acting in a manner that would constitute disorderly conduct or harassment. In addition, Mr. Jennings has responsibility for supervising and evaluating the work of at least four other staff members. He also intervenes in crisis situations." The coordinating manager also noted that his recommendation was unqualified inasmuch as he has known Mr. Jennings for over twenty-six years; has had ample opportunity to observe him at work; and that he is a top notch professional. In addition, the petitioner's papers included a letter, dated January 20, 2003, from a Dr. Donald E. Moore to the effect that Mr. Jennings had come to his office ". . .on 1/7/03 in a hypertensive state because he was off his pressure medicine. He was concerned that Labetalol (sic), which is known to cause a false positive blood amphetamine result, could alter his drug-screening test. His labetalol (sic) was discontinued and he was started on Hyzaar. . . .A follow up drug-screen on 1/15/03 was negative for all substances tested."
The petitioner concedes that his application herein was untimely in that service was not completed within 15 days of the expiration of the statute of limitations as required by CPLR

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