
    In the Matter of AT&T Bell Laboratories, Petitioner, v New York State Division of Human Rights, on Complaint of Todd Rohling, Respondent.
    [624 NYS2d 9]
   —Determination of the respondent State Division of Human Rights, dated January 4, 1994, which, inter alia, found that petitioner discriminated against complainant, Todd Rohling, and awarded damages, unanimously vacated, and the proceeding brought pursuant to Executive Law § 298 (transferred to this Court by order of the Supreme Court, New York County [Diane Lebedeff, J.], entered April 15, 1994) dismissed, without costs.

In order to withstand judicial review, a finding that a prospective employer discriminated against a person by failing to hire him or her because of a "disability” within the meaning of Executive Law § 296 (1) (a) must be supported by substantial evidence to sustain, inter alia, the Commissioner’s finding that the disability did "not prevent the complainant from performing in a reasonable manner the activities involved in the job or occupation sought or held” (Executive Law § 292 [21]).

In this case, there is no dispute that complainant Todd Rohling was on actual paid disability leave from his employment at General Electric based on his serious back problems at the time he sought a position with petitioner. Complainant cannot contend that he was entitled to disability leave from his then current employer, which required that he be actually unable to perform his duties at that job, and claim that, at the same time, his "disability” was within the protection of the Executive Law, i.e., that it did not prevent him from reasonably performing his duties at the job sought. Thus, petitioner cannot be held to have discriminated against complainant based on its failure to offer him immediate employment because of his disability. Concur—Sullivan, J. P., Ellerin, Rubin and Williams, JJ.  