Opinion
Index No. 522405/2023 Cal. Nos. 8 9 Mot. Seq. Nos. 1 2
03-01-2024
James Farah, Plaintiff, v. The City of New York, The New York City Police Department, Michael Melocowsky, The New York City Department of Health and Mental Hygiene and John Does 1-10, Defendants.
Unpublished Opinion
DECISION/ORDER
HON. PATRIA FRIAS-COLÓN, J.S.C.
Recitation as per CPLR §§ 2219(a) and/or 3212(b) of papers considered on review of this motion:
NYSCEF Doc #s 1, 7-13; 27 by Defendants
NYSCEF Doc #s 17-26 by Plaintiff
Upon the foregoing cited papers and after oral argument on January 24, 2024, Defendants City of New York ("City"), New York City Police Department ("NYPD"), Michael Melocowsky, and New York City Department of Health and Mental Hygiene ("DOHMH"; collectively, "Defendants"), jointly move, pre-answer, for an Order, pursuant to CPLR § 3211(a)(7), dismissing Plaintiff's Verified Complaint, dated July 28, 2023 (the "Complaint"). Concurrently, Plaintiff cross-moves for an Order, pursuant to CPLR § 3025(b), for leave to serve his proposed Amended Verified Complaint (the "Proposed Amended Complaint"). For the reasons stated below, the Defendants' Motion is GRANTED and Plaintiff's cross-motion is DENIED.
Background
Since July 1, 2004, Plaintiff has been, and to date remains, a uniformed police officer with NYPD.
NYCEF Doc. # 1 at ¶¶14.
On October 20, 2021, the DOHMH Commissioner issued an Order requiring City employees, including those of NYPD, to receive COVID-19 vaccinations on or before Friday, October 29, 2021 (the "Vaccine Mandate"). The Vaccine Mandate further provided that "[a]ny City employee who has not provided...proof [of vaccination] must be excluded from the premises at which they work beginning on [Monday,] November 1, 2021". The Vaccine Mandate permitted City employees to apply for a reasonable accommodation to be exempt from vaccination.
See "Order of the Commissioner of Health and Mental Hygiene to Require COVID-19 Vaccination for City Employees and Certain City Contractors," dated October 20, 2021 (available at https://www.nyc.gov/assets/doh/ downloads/pdf/covid/covid-19-vaccination-requirement-city-employees.pdf) (last accessed March 4, 2024). This Court has discretion to take judicial notice of material derived from official government Web sites, such as those from DOHMH. See Kingsbrook Jewish Med Ctr. v. Allstate Ins. Co., 61 A.D.3d 13, 19-20 (2d Dept 2009).
Id. at 3.
Id. at 8.
On the same day (October 20, 2021), NYPD issued an Administrative Bulletin directing (in relevant part) that all of its uniformed members receive the first dose of a two-dose COVID-19 vaccine no later than Friday, October 29, 2021, with a proviso that "[i]f a member is unable to obtain proof of COVID-19 vaccination because of a medical condition, disability, or other qualifying reason, a reasonable accommodation may be sought by contacting the Equal Employment Opportunity ['EEO'] Division," with all such requests to be submitted to the EEO by Wednesday, October 27, 2021".
See "COVID-19 Vaccine Mandate"; AdministrativeBulletins@nypd.org, page 1 at NYSCEF Doc No. 13.
According to Plaintiff, a COVID-19 vaccination would "violate the sanctity of [his] own body and soul". A self-described "loyal God-fearing Christian public servant," who has been "created in God's image".
NYSCEF Doc.17, "Under CPLR 3211 a trial court may use affidavits in its consideration of a pleading motion to dismiss ...[, albeit] for a limited purpose only, serving normally to remedy defects in the complaint." Rovello v. Orofino Realty Co., Inc., 40 N.Y.2d 633, 635-636 (1976).
NYSCEF Doc. #1 at ¶¶ 18, 21.
On October 26, 2021, Plaintiff requested an exemption from (or an accommodation for) the Vaccine Mandate by submitting to NYPD's EEO Division a reasonable accommodation application for COVID-19 vaccine exemption for members of service on the grounds of religious beliefs/practices.On December 14, 2021, NYPD's EEO Division denied Plaintiff's request for an exemption/accommodation from the Vaccine Mandate.
Although the Complaint frequently uses the term "accommodation," what the Plaintiff actually requested was a Vaccine Mandate exemption that, if granted, would have allowed him to continue working for NYPD while remaining unvaccinated.
NYSCEF Doc. #1 at ¶¶ 28.
From December 28, 2021 until May 26, 2022, Plaintiff "engaged in weekly [COVID-19] testing until the NYPD told [him] to either get vaccinated or be terminated".
NYSCEF Doc. #17 at ¶¶ 16.
On May 26, 2022, Plaintiff received the mandatory COVID-19 vaccination. According to Plaintiff, he was "coerced" into undergoing the COVID-19 vaccination. More specifically, "a condition of [his] divorce court order state[d] that [he had] to cover [his] daughter on [his] healthcare plan or lose custody. Therefore, losing [his] job [with NYPD] would [have] create[d] the domino effect of losing [his] healthcare and [the custody of his] daughter". As the result of the "coerced" COVID-19 vaccination, Plaintiff "suffer[s] from PTSD, [has] lost all faith in [his] prosperity, [and] lost the willingness to go on in this sort of society".
NYSCEF Doc. #1 at ¶¶ 1.
NYSCEF Doc. #17 at ¶¶ 7, 9, 21-22, 24-25.
NYSCEF Doc. #17 at ¶¶ 17.
Id. at 23.
Plaintiff did not challenge NYPD's denial of his request for religious exemption or accommodation in a CPLR article 78 proceeding.
Compare Matter of Fahy v. City of NY, 79 Misc.3d 1219(A), 2023 NY Slip Op 50668(U) (Sup Ct, Kings County 2023); Matter of Handle v. City of NY, 2023 NY Slip Op 32392(U) (Sup Ct, Kings County 2023); Matter of Demerest v. New York City Police Dept., 2023 NY Slip Op 30232(U) (Sup Ct, NY County 2023).
On November 10, 2022, Plaintiff served a Notice of Claim for "religious discrimination under NYS and NYC Human Rights Law[s]" under Executive Law § 296, et seq. ("State HRL") and Administrative Code § 8-107, et seq.) ("City HRL") respectively. The Notice of Claim was served more than 90 days after Plaintiff was vaccinated on May 26, 2022.
NYSCEF Doc. #'s 11-12.
On August 3, 2023, Plaintiff commenced the instant action. His Complaint asserts eight causes of action sounding in: (1) religious discrimination under the State and City HRLs; (2) failure to engage in a cooperative dialogue in violation of the City HRL; (3) declaratory judgment; (4) violation of the Free Exercise Clause of the Constitution of the State of New York ("State Constitution"); (5) intentional infliction of emotional distress; (6) aiding, abetting, compelling, and coercing violations under the City HRL; (7) "Intentional Tort of Forcing Unwanted Medical Care on Plaintiff and in Violation of the Nuremberg Code"; and (8) attorneys' fees (the First through Eighth Causes of Action, respectively).
As noted, pre-answer, Defendants moved for an Order, pursuant to CPLR § 3211(a)(7), dismissing the entirety of the Plaintiff's Complaint for failure to state a cause of action. As further noted, Plaintiff has cross-moved for leave to serve the Proposed Amended Complaint.
Analysis
"It is well established that determinations which are made within the jurisdiction of the [administrative] official or body concerned, stand unless they are avoided by a direct attack where the infirmity is alleged to be that the action has been arbitrary or capricious." Matter of Foy v. Schechter, 1 N.Y.2d 604, 612 (1956). Such "direct attack" takes the form of a CPLR article 78 proceeding which is to be commenced within four months of the challenged act, pursuant to CPLR § 217. See e.g. Matter of Metropolitan Museum Historic Dist. Coalition v. De Montebello, 20 A.D.3d 28, 36 (1st Dept 2005).
Here, it is undisputed that Plaintiff failed to commence a CPLR article 78 proceeding in connection with NYPD's denial of his religious exemption/accommodation request. Although the Plaintiff frames this action as a religious discrimination lawsuit under the State and City HRLs (as well as under the State Constitution), the crux of his Complaint is a challenge to the administrative denial to him of a religious exemption/accommodation from the COVID-19 vaccination, as well as the City's procedures underlying such denial. As the true nature of the Complaint, stripped of all artifice, squarely fits the parameters of a CPLR article 78 proceeding, Plaintiff was required to commence it "within four months of the act giving rise to the litigation." Town of Southampton v. County of Suffolk, 98 A.D.3d 1033, 1034. 2d Dept. (2012); Sekulski v. City of NY, 79 Misc.3d 1240(A), 2023 NY Slip Op 50839(U). Sup Ct, Kings County. (2023). Thus, because Plaintiff first became aware of the denial of his religious exemption/accommodation request on December 14, 2021, he should have commenced this action by April 14, 2022. Because he commenced this action much later (on August 3, 2023), the Complaint must be dismissed in its entirety as untimely. See CPLR § 217 (1); Sloninski v. City of NY, 173 A.D.3d 801, 802. 2d Dept. (2019); Dolce-Richard v. New York City Health & Hosps. Corp., 149 A.D.3d 903, 905. 2d Dept (2017); Town of Southampton, 98 A.D.3d at 1035. 2d Dept. (2012).
See also Steen v. Quaker State Corp., 12 A.D.3d 989, 990 (3d Dept 2004); State v. Butti, 304 A.D.2d 917, 918 (3d Dept 2003); Cahill v. Harter, 277 A.D.2d 655, 656 (3d Dept 2000); Charwat v. Kustas, 233 A.D.2d 288, 289 (2d Dept 1996); Brawer v. Johnson, 231 A.D.2d 664 (2d Dept 1996); Willis v. City of NY Police Dept., 2015 WL 5192461 (Sup Ct, NY County 2015).
CPLR § 103(c), which grants the Court the discretion to convert a plenary action to a CPLR article 78 proceeding, does not aid Plaintiff. See Dolce-Richard, 149 A.D.3d at 904 2d Dept. (2017). A mere assertion of claims in a plenary action cannot override the requirements of a CPLR article 78 proceeding, in particular the four-month statute of limitations governing it. See CPLR § 7803 (3); Clogher v. New York Med. Coll., 112 A.D.3d 574, 575-576. 2d Dept (2013); Demas v. Levitsky, 291 A.D.2d 653, 6603d Dept. (2002), lv dismissed 98 N.Y.2d 728 (2002); Matter of Johnson v. City of NY, 2023 NY Slip Op 31967(U), *4. Sup Ct, NY County (2023); Sekulski v. City of NY, 79 Misc.3d 1240(A), 2023 NY Slip Op 50839(U), *4. Sup Ct, Kings County (2023).
Plaintiff's claims against the NYPD must be dismissed because it is not an entity amenable to being sued under the New York City Charter. See NYC Charter, Ch. 17, § 396; Metwally v. City of NY, 215 A.D.3d 820, 823. 2d Dept (2023); Brown v. City of NY, 192 A.D.3d 963, 965. 2d Dept (2021), lv denied 38 N.Y.3d 902 (2022).
Contrary to Defendants' position (in Point III of each of their opening and reply Memoranda of Law at NYSCEF Doc Nos. 9 and 27, respectively), DOHMH possesses the capacity to be sued in the name of the agency. See NYC Charter Ch. 22, § 564 ("The department may sue and be sued in and by the proper name of 'Department of Health and Mental Hygiene of the City of New York'..."); see also Clifton v. NY, 2024 WL 343088, *3 (SD NY 2024).
Even if the Court were to permit Plaintiff's claims to proceed in a plenary action, each of his eight causes of action would be dismissed either for failure to state a cause of action and/or failure to serve a timely notice of claim, for the following reasons:
(1) Religious Discrimination:
Plaintiff's religious discrimination claim, as grounded on his failure to accommodate theory, is inadequate. He failed to plead that NYPD could, in fact, accommodate him, a uniformed NYPD officer, without suffering an undue hardship in light of his work duties at the time, particularly where the Vaccine Mandate was a condition of employment for front line workers (such as the uniformed police officers with NYPD). Insofar as Plaintiff's religious discrimination claim is grounded on the disparate treatment theory of liability, he failed to allege any facts to show that he was treated differently because of his religion. Such failure is fatal to his religious discrimination claim. See St. Hillaire v. Montefiore Med. Ctr., 2024 WL 167337, *4. SDNY (2024).
See We The Patriots USA, Inc. v. Hochul, 17 F4th 266, 294 (2d Cir 2021), clarified 17 F4th 368 (2d Cir 2021), stay pending appeal denied __US__, 142 S.Ct. 734 (2021); Beickert v. New York City Dept. of Educ., 2023 WL 6214236, *4 (ED NY 2023); Marte v. Montefiore Med. Ctr., 2022 WL 7059182, *5 (SD NY 2022); Broecker v. New York Dept of Educ., 585 F.Supp.3d 299, 314-315 (ED NY 2022); Marciano v. De Blasio, 589 F.Supp.3d 423, 431-433 (SD NY 2022), appeal dismissed as moot 2023 WL 3477119 (2d Cir 2023), cert denied __US__, 144 S.Ct. 286 (2023); Garland v. New York City Fire Dept., 574 F.Supp.3d 120, 129 (ED NY 2021); Matter of Police Benevolent Assn. of City of NY, Inc. v. City of NY, 215 A.D.3d 463 (1st Dept 2023); Matter of Police Benevolent Assn. of City of NY, Inc. v. De Blasio, Index No. 85229/21, Decision & Order, dated February 16, 2022 (Sup Ct, Richmond County, Colon, J.), appeals withdrawn Docket Nos. 2022-02225 and 2022-02238 (2d Dept, Nov. 23, 2022).
See NYSCEF Doc. # 1 at ¶¶25 ("Upon information and belief, many other workers were routinely allowed to work wearing masks or taking weekly tests. These options were never offered to Plaintiff."); see also NYSCEF Doc. # 17 at ¶¶ 16 ("I personally witnessed many other workers, including those in managerial and higher posts, routinely being allowed to work while wearing masks and/or taking weekly tests.").
(2) Absence of Cooperative Dialogue.
Regarding Plaintiff's "lack of-cooperative-dialogue" claim under the City HRL, beyond bare legal conclusions, he has not alleged facts that the City's process for resolving requests for accommodations to the Vaccine Mandate generally, and the Plaintiff's request in particular, fell short of the requirements of the City HRL regarding cooperative dialogue. To the contrary, the City's process was repeatedly found to have been rational by the First Judicial Department. Under his particular circumstances, Plaintiff has not alleged facts showing that the City HRL required "a more robust or individualized dialogue than the process he received." Matter of Marsteller v. City of NY, 217 A.D.3d 543, 5451st Dept. (2023), lv rearg & lv appeal denied 2023 NY Slip Op 72547(U) 1st Dept. (2023), application for lv to appeal filed Docket No. APL-2023-00170 (Ct App. (2023).
See also Matter of Lynch v. Board of Educ. of City School Dist. of City of NY, 221 A.D.3d 456 (1st Dept 2023); Matter of Lebowitz v. Board of Educ. of City School Dist. of City of NY, 220 A.D.3d 537 1st Dept. (2023), lv rearg & lv appeal denied 2024 NY Slip Op 60773(U) 1st Dept. (2024); Matter of Hogue v. Board of Educ. of City School Dist. of City of NY, 220 A.D.3d 416, 4171st Dept. (2023), lv rearg & lv appeal denied 2024 NY Slip Op 60411(U) 1st Dept. (2024); Currid v. City of NY, 2024 NY Slip Op 30222(U),*6 Sup Ct, Kings County (2024); Matter of Quagliata, 2023 WL 8523718, *1. Sup Ct, NY County (2023); Matter of Hunold v. City of NY, 2023 NY Slip Op 33508(U). Sup Ct, NY County (2023); Matter of Bath v. Fire Dept. of City of NY, 2023 NY Slip Op 31855(U). Sup Ct, NY County (2023).
(3) Declaratory Judgment.
As Defendants correctly point out, Plaintiff's declaratory judgment cause of action is without merit because the Complaint does not present a justiciable controversy sufficient to invoke the Court's power to render a declaratory judgment. See Krawczyk v. Incorporated Vil. of Lindenhurst, 216 A.D.3d 929, 931. 2d Dept. (2023).
(4) Free Exercise Clause.
A cause of action for a violation of the State Constitution arises only where it is necessary to ensure the full realization of the claimant's constitutional rights. See Brown v. State of NY, 89 N.Y.2d 172, 186 (1996); Martinez v. City of Schenectady, 97 N.Y.2d 78, 83-84 (2001). Here, the invocation of a constitutional tort cause of action is neither necessary nor appropriate because Plaintiff has alternative avenues of redress available. See Lyles v. State, 2 A.D.3d 694, 695. 2d Dept. (2003), affd 3 N.Y.3d 396 (2003).
(5) Intentional Infliction of Emotional Distress.
Plaintiff's claim of intentional infliction of emotional distress fails because it is not listed in the Plaintiff's Notice of Claim, and thus may not be maintained in his Complaint. See Bayer v. City of NY, 60 A.D.3d 713, 7142d Dept. (2009), lv denied 13 N.Y.3d 707 (2009).
(6) Aiding, Abetting, Compelling, and Coercing.
To assert a claim for aiding and abetting, a plaintiff must allege: (1) the existence of an underlying tort; (2) the defendant's actual knowledge of the underlying tort; and (3) the defendant's provision of substantial assistance in the commission of the underlying tort. See Markowits v. Friedman, 144 A.D.3d 993, 996. 2d Dept. (2016). Because Plaintiff failed to state a cognizable underlying tort, there can be no aiding and abetting liability. See Li v. Shih, 207 A.D.3d 444, 4482d Dept. (2022).
(7) "Intentional Tort of Forcing Unwanted Medical Care," etc.
This claim sounds in common-law battery which was required to have been (but was not) listed in the Notice of Claim. Plaintiffs failure to comply with a statutory notice of claim requirement regarding his claim for common-law battery is a ground for dismissal pursuant to CPLR § 3211 (a) (7) for failure to state a cause of action. See Parpounas v. Ohagan, 216 A.D.3d 985, 986. 2d Dept. (2023).
See Picciano v. Nassau County Civ. Serv. Commn., 290 A.D.2d 164, 1702d Dept. (2001) ("General Municipal Law § 50-i...requires service of a notice of claim in compliance with General Municipal Law § 50-e in an action to recover damages for 'personal injury, wrongful death or damage to real or personal property'...").
The Plaintiff's claim of common-law battery would otherwise have been timely because he received his vaccination on May 26, 2022 and commenced this action on August 3, 2023, which was within one year and 90 days after his vaccination. See Jorge v. City of NY, 220 A.D.3d 593, 5931st Dept. (2023) ("Plaintiff had one year and 90 days from the assault, which occurred at the time of his arrest on October 30, 2007, to file the claims, but he did not commence this action until January 13, 2012, well after the statute of limitations expired [see CPLR (§) 217-a; General Municipal Law § 50-i [1] [c])].").
(8) Attorneys' Fees.
Plaintiffs final cause of action for an award of attorneys' fees is likewise without merit. Although a prevailing plaintiff may be awarded attorneys' fees under the State and City HRLs (see Executive Law § 297 [10]; Administrative Code § 8-502 [g]), a claim for attorneys' fees may not be maintained as a separate cause of action. See La Porta v. Alacra, Inc., 142 A.D.3d 851, 853. 1st Dept. (2016). Because none of the underlying causes of action are viable, Plaintiff is not a prevailing party warranting the award of attorneys' fees.
A few closing comments are in order. First, in light of the dismissal of the entirety of the Complaint, Plaintiff is not entitled to damages of any kind, including punitive damages which he is seeking in the second "Wherefore" clause. See Niles v. New York City Human Resources Admin., 2024 WL 496346, *10 ED NY (2024). Second, leave to serve and file the Proposed Amended Complaint is denied as futile. See Wiltz v. New York Univ., 217 A.D.3d 521, 5221st Dept. (2023), appeal dismissed 2024 NY Slip Op 62418. Ct. App. (2024); Quire v. City of NY, 210 A.D.3d 448, 4491st Dept. (2022). Lastly, the Court has considered the Plaintiff s remaining contentions and found them either unavailing or moot in light of its determination.
Conclusion
Accordingly, Defendants' Motion to Dismiss is GRANTED, the Complaint is dismissed with prejudice in its entirety against all Defendants without costs or disbursements. Plaintiff s Cross-Motion for Leave to Serve the Proposed Amended Complaint is DENIED. Corporation Counsel is directed to electronically serve a copy of this Decision and Order on Plaintiffs counsel and to electronically serve an affidavit of service with the Kings County Clerk.