DECISION AND ORDER On November 4, 2022, Defendant City of Amsterdam (hereinafter “the Defendant” or “the City”), by and through its attorneys of record, Johnson & Laws, LLC, by April J. Laws, Esq., filed a motion pursuant to Civil Practice Law and Rules (hereinafter “CPLR”) §3212, seeking an Order dismissing Plaintiff’s Complaint. In support of the motion, Defendant filed a Notice of Motion, dated November 4, 2022, by April J. Laws, Esq.; Affirmation of April J. Laws, Esq. dated November 4, 2022, with Exhibits A through Q; and Memorandum of Law by April J. Laws, dated November 4, 2022. On December 8, 2022, Plaintiff, Thomas Apholz, by and through his attorneys of record, Luibrand Law Firm, PLLC, by Kevin A. Luibrand, Esq filed opposition to Defendant’s motion, consisting of Affirmation of Kevin A. Luibrand, Esq., dated December 7, 2022, with Exhibits A through N; and Memorandum of Law by Kevin A. Luibrand, Esq., dated November 28, 2022. On January 9, 2023, Defendant filed a reply consisting of Affirmation of April J. Laws, Esq., dated January 9, 2023, with Exhibits; and Memorandum of Law in Reply by April J. Laws, Esq., dated January 9, 2023. FACTUAL BACKGROUND Plaintiff had been employed by Defendant as a wastewater operator since 2017 to 2020. In 2017, Plaintiff had signed a Last Chance Agreement with the City, as a result of failing a drug test1. On March 6, 2020, he was suspended with pay as a result of failing a drug test for Marijuana. On March 16, 2020, he received a letter of termination, effective March 15, 2020. Plaintiff’s Complaint alleges a claim for unlawful discrimination against the City, claiming that the City unlawfully discriminated against him for being a medical marijuana certificate card holder. The Complaint also alleges that the City failed to accommodate Plaintiff’s disability under the New York State Human Rights Law. Defendant claims that it was never made aware of Plaintiff’s disability and could, therefore, not have discriminated against him on this basis, or accommodated, or refused to accommodate a request absent knowledge of Plaintiff’s disability. Defendant’s motion for summary judgment argues that Plaintiff cannot even show a prima facie case of employment discrimination since the City was never made aware of Plaintiff’s disability. In addition, the Plaintiff cannot eliminate the legitimate, non-discriminatory causes for his firing — to wit, violation of the City’s Zero Tolerance Policy and Last Chance Agreement. Regarding the second cause of action, Defendant first argues that the cause of action for failure to provide an accommodation was not preserved in the Plaintiff’s Notice of Claim pursuant to GOL §50-e. Additionally, even if substantively considered, the City was never made aware of Plaintiff’s disability and, further, even had it been, Plaintiff cannot show that an accommodation for the consumption of marijuana for medical purposes would have been able to be provided, given Plaintiff’s safety sensitive duties. In response, Plaintiff argues that he advised the City on numerous occasions that he possessed a medical marijuana certificate and that it was the City’s responsibility to engage in conversation to determine Plaintiff’s qualifying disability. Additionally, Plaintiff argues he did not have to use any specific language to request the accommodation. His communication regarding possessing a medical marijuana certificate triggered a response on the part of the City to investigate and engage in good faith interactions to determine Plaintiff’s underlying condition. Further, the burden is on an employer to show that the accommodation requested could not allow Plaintiff to perform his safety sensitive job, and moreover, the performance would have had to apply to essential duties only. Plaintiff also argues that the prohibition in the zero-tolerance policy did not apply to legally prescribed medication. Lastly, Plaintiff argues that a notice of claim is not needed for human rights violations; that even if the Court deems it necessary, the notice of claim does not have to specify the actual causes of action that a plaintiff will allege, but merely put the municipality on notice of the events giving rise to the claim; and that, regardless of how the Court rules, the Defendant was not prejudiced by the addition of Plaintiff’s second cause of action as it had plenty of opportunities to address and develop a factual record regarding it. Defendant’s reply argues that the City cannot be held liable without knowledge of Plaintiff’s actual disability. Further, it cannot retroactively excuse Plaintiff’s conduct that led to his firing, after finding out about his disability. Additionally, there were non-pretextual reasons for Plaintiff’s firing such as violation of the Last Chance Agreement, and the employee was responsible to inform the City of his disability and the accommodation sought. Finally, Defendant could not “perceive” Plaintiff’s disability, as Plaintiff argues, since the alleged disabilities were not readily observable — namely irritable bowel syndrome (IBS) and chronic pain. The City’s Zero Tolerance Policy applies to “every employee performing a ‘safety-sensitive function,’” which is defined therein, in part, as “[l]oading or unloading a commercial motor vehicle, supervising or assisting in the loading or unloading, attending a vehicle being loaded or unloading, remaining in readiness to operate the vehicle, or giving or receiving receipts for shipments being loaded or unloaded” (see Zero Tolerance Policy annexed to Attorney Law’s Affirmation as Exhibit A). Marijuana is included as a “prohibited drug” (see id. at p 5). The Policy also specifies, Legal drugs: The appropriate use of legally prescribed drugs and non-prescription medications is not prohibited. However, the use of any substance which carries a warning label that indicates that mental functioning, motor skills, or judgment may be adversely affected must be reported to a city of Amsterdam supervisor and the employee is required to provide a written release from his/her doctor or pharmacist indicating that the employee can perform his/her safety-sensitive functions (id. at p 8). The Employee Handbook specifies The City of Amsterdam complies with the requirements of the Americans with Disabilities Act (ADA) as amended, the New York State Human Rights Law, and all other applicable federal, state and local laws. Consistent with those requirements, the City will reasonably accommodate qualified individuals with a disability (or pregnancy-related conditions) where such accommodation would allow the individual to perform the essential functions of the job, unless doing so would impose an undue hardship…All requests for a reasonable accommodation should be made to the Director of Employee Relations (Employee Handbook at p 4). Further, the handbook directs that City employees who use prescription medication or over the counter medication that may affect their driving ability “shall not drive City vehicles” (id. at p 14). Failure to comply with the City’s drug policy is grounds for disciplinary action, including termination (id. at pp 19-20). Plaintiff signed the Employee Handbook when he commenced work for the City on July 20, 2017 (see Exhibit C to Law Affirmation). Plaintiff was a member of the CSEA bargaining unit. In the union agreement, it is specified that the City may suspend employees without pay pending suspension or termination for reporting to work under the influence of drugs and/or alcohol (see Exhibit D to Law Affirmation at p 23). The Last Chance Agreement (LCA) was signed by Plaintiff on March 17, 2017 (see Exhibit E to Law’s Affirmation). In it, Plaintiff acknowledges he was selected for a random drug and alcohol test pursuant to the City’s policies and refused to submit to the drug and alcohol test in violation of the City’s policies2. In consideration for the City agreeing not to terminate Mr. Apholz, he agreed to be suspended without pay for thirty calendar days; to comply with the city’s recommendations and requirements of Substance Abuse Professional and execute necessary releases in order for the City to verify his compliance; and that any future violation of the City’s Drug and Alcohol Testing Policies and Procedures, including a positive test or refusal o submit to a test, shall be deemed a violation of the LCA and may result in immediate termination (see id.). The letter of termination provided to Plaintiff on March 16, 2020 references Plaintiff’s failure of the drug test in coming back positive for marijuana on February 2, 2020, in violation of the City’s drug policy and Last Chance Agreement (see Exhibit G to Law Affirmation). In his 50-h deposition, Plaintiff testified that his job was dewatering the sludge — “[t]he poop that was in the tanks comes in and it goes on a press and we dewater it and load it in a truck” (Apholz 50-h hearing transcript at p 9
13-16). His supervisor at the time of termination was Mike Clark, the City Engineer (id. at p 15). When asked about the first time he told anyone from the City that he was taking medicine, Plaintiff testified that it was “[t]wo weeks prior to the 16th [of March 2020], he [Mike Clark] informed [Plaintiff] that [Plaintiff] bombed [his] drug test and was being suspended with pay because Kim Brumley was on vacation” (id. at p 19
