National Basketball Ass'n v. New York State Division of Human Rights

OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs. We agree with the Appellate Division that under the circumstances of this case complainant did not establish prima facie "that he was physically fit to fully perform as a professional basketball referee”. Although a doctor’s report which does not give the basis of his opinion is admissible (CPLR 4515) and such a report in affirmation form (CPLR 2106) may constitute substantial evidence even though the doctor is not called by complainant (People ex rel. Vega v Smith, 66 NY2d 130 , 139-140; Matter of Eagle v Paterson, 57 NY2d 831 ), the affirmation of Dr. Unger submitted by complainant was received by the Administrative Law Judge under the limitation that it "would not establish * * * any ultimate fact by itself’. In light of that ruling, petitioner cannot be faulted for not requesting that the doctor be called as a witness (CPLR 4515; State Administrative Procedure Act § 304; Matter of Eagle v Paterson, supra) so that he could be cross-examined.

Concur: Chief Judge Wachtler and Judges Meyer, Simons,