(dissenting). The question presented in this *11proceeding is whether the municipal petitioners may deny employment to a prospective police officer on the authority of Civil Service Law § 50 (4) (b) in the face of an order by the Commissioner of Human Rights, after a hearing, finding that the candidate can presently, and for an indefinite period of time, perform in a reasonable manner the duties of a police officer.
The Human Rights Law (Executive Law art 15) prohibits an employer from refusing to hire a person on the basis of discrimination because of disability (Executive Law § 296). For the purposes of employment discrimination within this statute, "disability” is defined as a medical impairment "which [does] not prevent the claimant from performing in a reasonable manner the activities involved in the job or occupation sought or held”. (Executive Law § 292 [21].)
The report of Dr. Gold indicated that Granelle’s spondylosis condition is a congenital finding present in approximately 10% to 11% of the normal population. He opined that in view of Granelle’s excellent previous history, with no problems referable to his back, he would have no difficulty performing the duties of a New York City Police Officer.
Dr. Liebowitz, the neutral expert accepted by both parties, reported after his examination of the complainant that the strength of his extremities is normal and back mobility is also normal. While Dr. Liebowitz stated that the physical activities included in police functions may tend to aggravate the condition and that the forward slippage of one vertebra may tend to ultimately result in pain and disability in the back and legs, his report stated this was not a specific prediction for Granelle but rather a mere statistical possibility compared to a person with normal back X rays.
However, complainant testified concretely as to his prior employment history and excellent physical condition. He had continually worked for the previous 10 years, performing heavy labor such as masonry, digging ditches, and installing cesspools without ever having lost time from work because of his back problems. He has served as a volunteer fireman. Complainant also drove heavy duty flatbed trucks over rough terrain without incident, a fact particularly noteworthy in light of the city’s assertion that riding in a police car over city streets would aggravate his back condition to the point of disabling injury.
Also significant in this regard is the fact that Granelle *12passed the physical agility test administered by the Police Department, a factor which the city’s expert admits is an indication that Granelle can presently perform the job.
Having shown that his disability did not prevent him from performing the activities of a police officer in a reasonable manner, Granelle made out a prima facie case of discrimination in the city’s refusal to hire him because of his disability.
To rebut the evidence of discrimination, the petitioners offered the testimony of its expert physician, Dr. Schein. Dr. Schein did not personally examine Granelle but instead testified on the basis of prior medical reports. Dr. Schein theorized that there was a 25% likelihood of the development of low back disability from Granelle’s defect. Alternatively basing another opinion on the "Israeli Study”, Dr. Schein testified that there is a definite connection between spondylosis and later development of low back disability. While he noted that there are no firm statistics available, he offered an opinion that there was a "25-50% chance” that Granelle would become disabled within 10 or 20 years of his employment. But Dr. Schein unequivocally testified that Granelle was "able to do the job now”.
The city relies on Civil Service Law § 50 (4) (b) which permits a municipal department to disqualify from employment an eligible applicant who is found to have a physical or mental disability which may reasonably be expected to render him unfit to continue to perform the duties of such position. The city contends that Dr. Schein’s speculative prognosis constitutes a reasonable expectation that Granelle would be unfit to continue to perform a police officer’s duties. The city then advances the view that its reliance on the Civil Service Law provides a valid, nondiscriminatory ground for disqualification from public employment.
I believe, as the majority does, that this provision of the Civil Service Law must be reconciled with the employment discrimination statutes of the Human Rights Law. However, in harmonizing these two statutes, the Civil Service Law cannot be construed in a manner which totally eviscerates the plain meaning and intent of the discrimination statute. When the Legislature amended Executive Law § 292 (21) and defined "disability” as a condition which does not prevent a claimant from performing in a reasonable manner the activities involved in the job, it clearly intended to encompass a situation such as exists here where a person is refused employment *13solely because of a disability which has no relation to his ability to perform the job.
The cases interpreting this statute clearly support this conclusion. In Matter of Miller v Ravitch (60 NY2d 527), wherein the MTA argued that the employee’s heart condition may relate to his ability to perform the duties of an assistant station manager, the court held (at p 532): "Under the current statute, then, it is not enough for the employer to show that the employee’s physical impairment is somehow related to the duties he must perform in the position sought. Nor is it sufficient to show that the impairment precludes the employee from performing the duties in a perfect manner. The statute bars discrimination against an impaired individual who is reasonably able to do what the position requires. Unless it is shown that the employee’s physical condition precludes him from performing to that extent, the disability is irrelevant to the job and can form no basis for denying him the position.”
Here, the city contends not that Granelle cannot perform the job fully but that there is a statistical probability that a person with his condition may develop a disability in the future. The Court of Appeals addressed these concerns in State Div. of Human Rights v Xerox Corp. (65 NY2d 213, 217-218), where the employer denied complainant employment not because of a present impairment but "because of a statistical likelihood [that the] condition would produce impairments in the future.” The court held (p 219) that: "Fairly read, the statute covers a range of conditions varying in degree from those involving the loss of a bodily function to those which are merely diagnosable medical anomalies which impair bodily integrity and thus may lead to more serious conditions in the future. Disabilities, particularly those resulting from disease, often develop gradually and, under the statutory definition, an employer cannot deny employment simply because the condition has been detected before it has actually begun to produce deleterious effects.”
The city’s reliance on the alleged statistical likelihood of future impairment in Granelle’s case is especially troubling since it gives no consideration to the pertinent realities of complainant’s excellent current physical condition or a reasonably related inquiry as to complainant’s prognosis on an individual basis (see, Matter of Palozzolo v Nadel, 83 AD2d 539 [Kupferman, J., dissenting]). The Civil Service Law allows the city to disqualify an applicant with a disability which may reasonably be expected to render him unfit to continue to *14perform the duties. A reasonable expectation may not, however, be based on the speculative and theoretical nature of the predictions of Dr. Schein’s testimony. A mere possibility that an applicant may be impeded in performance of the job because of a handicap that in theory may affect the ability to perform the job but in reality does not do so, is a discriminatory basis to reject the applicant (State Div. of Human Rights v Le Roy Cent. School Dist., 107 AD2d 153).
Moreover, the Civil Service Law does not require the municipality to reject an applicant because of a reasonable expectation of inability to continue to perform but only allows it to do so. It is to be expected that the city would exercise this discretion in a reasonable and lawful manner, in this case as limited by the Human Rights Law and the facts as admitted by their own expert witness, that Granelle could presently perform the duties of a police officer, and continue to do so for a lengthy period of time, notwithstanding the possibility that 10 or 20 years in the future he may develop a disabling condition.
In this case, the city, relying solely on the expert’s testimony of possible future impairment, cannot be said to have established reasonable grounds to disqualify Granelle, in the face of the substantial evidence in the record to support the Commissioner’s determination that complainant could perform a police officer’s duties in a reasonable manner and that his disqualification from employment violated the Human Rights Law. (Cf. Matter of Carrero v New York City Hous. Auth., 116 AD2d 141; City of New Rochelle v New York State Div. of Human Rights, 111 AD2d 738.)
Accordingly, I would confirm the determination.
Sullivan and Ross, JJ., concur with Rosenberger, J.; Kupferman, J. P., and Eller'in, J., dissent in an opinion by Ellerin, J.
Determination and order of respondent dated January 29, 1985, annulled, on the law, and the complaint dismissed, without costs and without disbursements.