The opinion of the court was delivered by: McAVOY, Chief Judge.
MEMORANDUM — DECISION & ORDER
At all times relevant hereto, Plaintiff was and is a police
officer with the Village of Massena Police Department. On July
13, 1995, while driving to work, Plaintiff was involved in a car
accident where his face went through the windshield of his car.
The cause of the accident was believed to be a sudden drop in
blood pressure resulting from a heart condition from which
Plaintiff has suffered since he was a teenager. As a result of
the accident, Plaintiff sustained various injuries, including a
severe laceration to his right eye.
Plaintiff was taken to Fletcher Allen Health Care Facility in
Burlington, Vermont where he was a patient until August 1, 1995.
While at Fletcher, Plaintiff underwent a medical procedure to
correct his existing heart condition. Plaintiff's cardiologist
cleared Plaintiff for return to work with respect to his heart
condition. The injury to his eye, however, required continued
Plaintiff returned to work on limited desk duty in or about
November 1995. At that time, Plaintiff wore a patch over his eye
and was concerned about his ability to perform the duties of a
patrol officer. In fact, by letter dated November 17, 1995, Dr.
Bruce Smith ("Dr.Smith"), one of Plaintiff's treating physicians,
At present [Plaintiff] is functionally blind in the
It is my opinion that this should prohibit him from
handling a firearm in the line of duty, and driving a
vehicle in line of duty. . . . [D]epending on the
result of [a potential corneal transplant], [he]
could recover enough to be able to resume full duties
Def.Ex. H. At that time, Plaintiff agreed to perform light duty,
In or about January 1996, Plaintiff approached Chief of Police
Timmy J. Currier ("Currier") and requested to be returned to road
patrol. Shortly thereafter, on January 24, 1996, Dr. Smith wrote
a prescription for Plaintiff stating:
Vision recovered sufficiently to return to regular
duty. Peripheral vision normal. Can drive without
limitation. He should requalify with pistol before
Def.Ex. I. Plaintiff provided the January 24, 1996 prescription
to Currier. Plaintiff discussed with Currier the need to
requalify with the pistol and the two agreed that Plaintiff would
wait to requalify with the rest of the department.
By letter dated February 14, 1996, Dr. James D. Watson
("Dr.Watson"), another of Plaintiff's treating physicians, wrote
The vision in [Plaintiff's] right eye is limited to
20/70. . . . The cornea has significant scar. . . .
There was early cataractous lens change, but this has
not worsened since his last exam.
[Plaintiff] would benefit from avoiding any activity
which would result in the possibility of eye contact.
He may use his eyes for visual needs, but should
avoid any possible reinjury at this time.
In May 1996, Plaintiff requalified with his service weapon on the
firing range and, thus, again requested to return to road patrol.
In response to Plaintiff's request, Currier requested additional
medical information regarding the condition of his eye.
is limited to the 20/60 range right eye. . . .
Because of the injuries in the right eye there is
some decreased visual function. Depth perception is
not as perfect . . . though his overall visual
function is very close to normal because of his
better than normal vision in the left eye.
It is reasonable to say that [Plaintiff] would have
essentially normal overall visual function since his
vision in the left eye is normal. . . . Since there
are so many other factors contributing to safety
while driving and performing as a police officer, his
vision should be adequate to perform his duties with
essentially the same safety as someone with normal
vision in both eyes.
Def.Ex. L. In September 1996, Dr. Cavin wrote that Plaintiff's
uncorrected vision in his right eye was 20/60 and that because
his eye "is comfortable and [he has] such excellent vision in the
left eye," the decision to undergo surgery was deferred. Dr.
Cavin opined that Plaintiff utilize "polycarbonate safety glasses
to provide protection, and being active should not significantly
threaten the health of [his] right eye. Therefore being an active
officer would be reasonable." Def.Ex. M. Dr. Cavin further opined
at deposition that Plaintiff continues to suffer from
photophobia, poor vision in his right eye, a cataract, and loss
of iris. See Aug. 30, 1999 Cavin Dep. at 59.
In October 1996, Massena requested that Plaintiff sign medical
releases authorizing access to his medical records and the
workers compensation file. Plaintiff refused. According to
Massena, "[b]ecause of the inconsistencies and problems from the
medical information that we were being provided by [Plaintiff]
and by his physicians[,] [t]he village wanted to look further at
the documentation that they had on [Plaintiff's] condition." May
18, 1999 Currier Dep. at 305. When Plaintiff refused to permit
access to his medical records, on January 14, 1997, Massena
served him with a Demand for Medical Examination (the "Demand")
pursuant to N.Y.CIV. SERV.LAW § 72. According to the Demand,
Massena believed that Plaintiff was "unable to perform the duties
of his position of police officer by reason of a disability,
other than a disability resulting from occupation injury or
disease as defined in the Workers' Compensation Law." Pl.Ex. 17.
The Demand specifically questioned whether, among other things,
Plaintiff could meet the minimum standards for visual acuity and
depth perception established by the State of New York. See id.
Dr. Carl Hanig ("Dr. Hanig") performed the medical evaluation
pursuant to N.Y.CIV.SERV.LAW § 72. Dr. Hanig examined Plaintiff
on two separate occasions. In his March 12, 1997 report, Dr.
Hanig found plaintiff to be nearly 100% impaired in his right
eye, having a corrected vision of 20/100-1. See Def.Ex. N.
According to Dr. Hanig, Plaintiff's "poor vision in the right eye
is due to a combination of corneal scarring and cataract." Id.
Dr. Hanig opined that "[t]he markedly impaired vision in his
right eye would, in my mind, certainly make a return to active
police duty extremely hazardous." Id. Dr. Hanig concluded that
"I would think that his light duty restrictions would have to be
considered permanent in this field of work," and that his
problems due to the cornea, the cataract, and loss of the part of
the iris "would make return to duty as a police officer extremely
difficult, even should the surgery lead to a good rehabilitation
of his vision in his right eye." Id. Finally, Dr. Hanig
expressed his disagreement with Dr. Cavin's statement that
Plaintiff would have essentially normal overall visual function.
Dr. Hanig believed it important for a police officer "to meet a
certain set of guidelines for each eye separately, rather than
the two eyes together." Id.
On June 10, 1999, Dr. Hanig again examined Plaintiff. In his
medical report, Dr. Hanig wrote as follows:
On examination today, his corrected vision in the
right eye is 20/100. Findings on his eyelids, cornea,
lens, iris, and retina are unchanged from my previous
evaluation. Ocular tensions today measured 15 mm in
both eyes. Other tests done today that had not been
done previously, include color testing, which showed
him to have totally normal color perception in each
eye, tested separately; testing of stereopsis (depth
perception) showed him able to only perceive up to
400 seconds of arc, which is well below the normal of
40 seconds, and also less than the 80 seconds
considered sufficient by the police officer
candidate's manual that I was given to review;
Humphrey visual field testing, which showed an
essentially normal peripheral vision test in the
right eye; potential acuity meter testing the right
eye, which indicated that he has the potential to
improve to at least 20/40 in his right eye, were he
to have successful surgery on his combination of
corneal and lens disease; keratometry, a measure of
the curvature and indication of the scarring of the
surface of the right cornea, which showed marked
irregularity and astigmatism of the right cornea, and
probably accounts for most of the visual blurring
that he has.
Def.Ex. O. Dr. Hanig further opined that:
In reviewing the essential functions and tasks, I
would first be concerned about the use of a gas mask
which might further impair his already compromised
vision; the use of chemical agents, which might
compromise his vision in his better eye, leaving him
with only a legally blind eye to function with; the
risk to either of his eyes in the active controlling
hostile groups; the operation of a vehicle in all of
the conditions and situations listed, in that both
his acuity and his depth perception are already
compromised, and a difficult situation might create
further risk to himself or the people around him; and
the use of physical force in breaking up fights,
subduing other persons, and disarming a suspect, in
that these acts would put him at increased risk of
injury to himself.
At deposition, Plaintiff described the extent of the injuries
to his eye. Plaintiff stated that he experiences "minor problems
with depth perception" and sensitivity to bright sunlight, but
that he experiences no problems with his peripheral vision or
driving a car, and that the problems with his eye have not
totally prevented him from engaging in any of his daily life
activities or performing the essential functions of his job.
See Def. Ex. F at 35-38; 225-227. During this time, Currier
refused to permit Plaintiff to return to road patrol.
On January 2, 1997, Plaintiff filed a charge of discrimination
with the Equal Employment Opportunity Commission ("EEOC")
alleging violations of the ADA and HRL. After investigation and
attempts at conciliation, the EEOC issued Plaintiff a right to
sue letter. Plaintiff then commenced the instant action alleging
disability discrimination and retaliation in violation of the ADA
and the HRL.
Presently before the Court are: (1) Defendant's motion for
summary judgment pursuant to FED.R.CIV.P. 56 seeking dismissal of
the Complaint in its entirety; and (2) Plaintiff's cross-motion
for partial summary judgment and an Order striking certain
portions of Defendant's attorney's affidavit.
A. Summary Judgment Standard
To the extent that Defendant's Attorney's affidavit contains
factual assertions not made upon personal knowledge and/or legal
arguments, such portions of her affidavit will be stricken and
not considered by the Court in connection with the pending
motions. See Hollander v. American Cyanamid Co., 172 F.3d 192,
198 (2d Cir.), cert. ...