
    Louis Massaro, Appellant, v Edward Mercado [sic], as Commissioner of Human Rights Division, Respondent.
    [715 NYS2d 396]
   Judgment, Supreme Court, New York County (Lottie Wilkins, J.), entered July 15, 1999, inter alia, dismissing a CPLR article 78 proceeding challenging respondent’s determination to dismiss, without a hearing, petitioner’s administrative complaint charging the Police Department with disability discrimination in rejecting petitioner as a police officer, unanimously affirmed, without costs.

Respondent was not required to conduct a hearing simply because it had previously made a probable cause determination in petitioner’s favor. On the basis of the administrative pleadings, there was simply no question that the Police Department’s rejection of petitioner was based on a finding of psychological unsuitability that is not a disability within the meaning of the Human Rights Law (see, Executive Law § 292 [21]), and was not perceived as a disability by the Police Department (cf., Daley v Koch, 892 F2d 212, 215-216). As respondent appropriately noted in its administrative decision, it cannot disturb a hiring decision absent a showing that the decision was influenced by unlawful discrimination. Nor should respondent be required to hold a hearing when it is clear that such a showing cannot be made. Concur — Nardelli, J. P., Williams, Mazzarelli, Andrias and Saxe, JJ.  