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January 26, 2000


The opinion of the court was delivered by: McAVOY, Chief Judge.


Plaintiff Christopher Ditullio, a police officer with the Village of Massena Police Department, commenced the instant litigation against Defendant Village of Massena ("Massena") claiming violations of the Americans with Disabilities Act, 42 U.S.C. § 12101, et. seq. ("ADA"), and N.Y.EXEC. LAW § 290, et. seq. (the "Human Rights Law" or "HRL"). Plaintiff alleges that Massena has failed to permit him to return to road patrol after sustaining an injury to his right eye in violation of the ADA and HRL and has retaliated against him for exercising his rights under those statutes. Presently before the Court is Defendant's motion pursuant to FED.R.CIV.P. 56 seeking dismissal of the Amended Complaint in its entirety and Plaintiff's cross-motion for partial summary judgment and an Order striking those portions of Defendant's Attorneys affidavit consisting of legal argument and facts not based on personal knowledge.


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 treatment.

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, wrote that:

At present [Plaintiff] is functionally blind in the right eye.
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 and responsibilities.

Def.Ex. H. At that time, Plaintiff agreed to perform light duty, desk work.

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 using it.

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 that:

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.

Def.Ex. I.

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.

On May 14, 1996, Dr. Thomas J. Cavin ("Dr.Cavin"), another of Plaintiff's treating physicians for his eye, wrote that Plaintiff's "vision without correction is 20/60 [in his] right eye. . . . He will require a corneal transplant operation, possible combined with iris surgery. He may require eyelid surgery as well. . . . I would expect that the earliest that his vision would be rehabilitated in the right eye would be six months or so from now." Later, on July 2, 1996, Dr. Cavin wrote that Plaintiff's vision:

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

The standard for summary judgment in employment discrimination cases is wellsettled and need not be restated here. This Court has set forth the appropriate standard to be applied in numerous published decisions, see Roman v. Cornell Univ., 53 F. Supp.2d 223, 232-33 (N.D.N Y 1999); Phipps v. New York State Dep't of Labor, 53 F. Supp.2d 551 (N.D.N.Y. June 24, 1999); Riley v. Town of Bethlehem, 44 F. Supp.2d 451, 458 (N.D.N.Y. 1999), and will apply the same standard discussed in those cases to the pending motion and cross-motion for summary judgment.

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. ...

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