Opinion
Index No. 504639/2024 Motion Seq No. 1
09-30-2024
JOHANNA NIEVES, Plaintiff, v. THE NEW YORK CITY POLICE DEPARTMENT, AND THE CITY OF NEW YORK, Defendants.
Unpublished Opinion
PRESENT: HON. GINA ABADI. J.S.C.
DECISION, ORDER, AND JUDGMENT
HON. GINA ABADI J. S. C.
Recitation, as required by CPLR § 2219(a), of the papers considered in the review of this motion;
Papers NYSCEF Numbered
Notice of Motion/Cross Motion/Order to Show Cause and Affidavits (Affirmations) Annexed .......................................7-10
Opposing Affidavits (Affirmations).............................15-17
Reply Affidavits (Affirmations) ................................18-20
Other.................................................................
Upon the foregoing cited papers and after oral argument, defendants New York City Police Department (NYPD) and City of New York (City' and, collectively with NYPD, defendants), jointly move, pre-answer, for an order, pursuant to CPLR 3211(a)(5) and (7), dismissing the entirety of the verified complaint, dated January 29, 2024 (Verified Complaint or VC), of plaintiff Johanna Nieves (plaintiff).
Background
Plaintiff was a police officer with the NYPD from July 8, 2008 to November 21, 2021 (VC, ¶¶ E 22. 86) As the result of the COVID-19 pandemic, on October 20, 2021, the Commissioner of the New York City Department of Health and Mental Hygiene issued an order mandating all city employees, including those at the NYPD, provide proof of at least one dose of a COVID-19 vaccine by October 29, 2021 (the vaccine mandate) (NYSCEF Doc No. 3). The vaccine mandate (in § 8 thereof) permitted employees to apply for a reasonable accommodation to be exempt from vaccination.
See also plaintiff's Reasonable Accommodation Request for Religious Practices or Observances, dated October 21, 2021 (NYSCEF Doc No; 4).
Plaintiff, a practicing Christian, applied on October 21, 2021 for a religious accommodation to be exempt from the vaccine mandate (VC. ¶ 14). Three days later, on October 24, 2021, "[p]laintiff received a call from [a] Sgt. Acevedo from the EEO Reasonable Accommodation Unit asking[,] 'Why she [plaintiff] didn't want to receive the [COVID] vaccine? Sgt; Acevedo did not mention anything about accommodating [p]laintiffs religious beliefs or any reasonable accommodations that could be offered to [her]" (VC, ¶ 13). Sometime thereafter, "[p]laintiff was told that [n]o [a]ccommodations would be given" (VC, ¶ 1). Plaintiff further alleges that she "told the NYPD that she was prepared to accept numerous accommodations, so long as she could keep [her] job, including masking and participating in weekly testing," but "[a]t no point did any member of the NYPD engage [her] in a cooperative dialogue" (VC, ¶¶ 16-17). On November 28, 2021, "[p]laintiff was [either] forced to resign" or "was forced into retirement" "because she did not receive the [COVID]-19 vaccination" (VC. ¶¶ 3, 22, and 86).
On February 15, 2024. plaintiff commenced this action against the NYPD and City asserting five causes of action under the New York City Human Rights Law (Administrative Code § 8-107, et seq.) (the City HRL): (1) religious discrimination; (2) refusal to engage in the cooperative dialogue; (3) failure to accommodate plaintiffs religious needs;(4) an award of punitive damages; and (5) an award of attorney's fees (first through fifth causes of action, respectively). In lieu of an answer, defendants served the aforementioned motion to dismiss. The Court heard oral argument on August 14, 2024 and reserved decision. The well-established standard of review on a pre-answer motion to dismiss has been omitted from this Decision. Order, and Judgment in the interest of brevity.
Discussion
Plaintiff s claims as 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; Meiwally 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), Iv denied 38 N.Y.3d 902 (2022).
Plaintiff s claims as against the City should have been brought as a CPLR article 78 proceeding, insofar as she is challenging the denial of her reasonable accommodation request, and as such, her claims as against the City are now time-barred. "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).
It is undisputed that plaintiff failed to commence a CPLR article 78 proceeding in connection with the NYPD's denial of her religious exemption/accommodation request. Although plaintiff frames this, action as a religious discrimination lawsuit under the City HRL, the crux of her Verified Complaint is a challenge to the administrative denial of her request for a religious exemption/accommodation from the COVID-19 vaccination. As the true nature of the Verified 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): Goolsby v City of NY, 83 Misc.3d 445, 453-455 (Sup Ct, NY County 2024); Hunold v City of NY, 2024 NY Slip Op 51241(U) (Sup Ct, NY County 2024); Almodovar v City of NY, 82 Misc.3d 1235(A), 2024 NY Slip Op 50475(U) (Sup Ct, NY County 2024), amended on rearg 83 Misc.3d 1271(A), 2024 NY Slip Op 51074(C) (Sup Cl. NY County 2024); Farah v City of NY, 83 Misc.3d 1252(A), 2024 NY Slip Op 50961(C) (Sup Ct, Kings County 2024); Sekulski v City of NY, 79 Misc.3d 1240(A), 2023 NY Slip Op 50839(C) (Sup Ct, Kings County 2023).
Plaintiffs reliance on Chinchilla v New York City Police Dept, 2024 WL 3400526 (SD NY 2024), is unavailing because it is hot binding or this Court. See Cox v. Microsoft Corp., 290 A.D.2d 206, 207 (1st Dept 2002) Federal case law is at best persuasive in the absence of State authority.....”), Iv dismissed 98 N.Y.2d 728 (2002).
Because plaintiff here first became aware of the denial of her religious exemption accommodation request on or before November 28, 2021, she should have commenced this action by March 28. 2022. Inasmuch as she commenced this action much later on February 15, 2024, her Verified Complaint must be dismissed in its entirety' as untimely. See CPLR §§ 217(f) and 3211(a)(5); see also Sloninski v City of NY, 173 A.D.3d 801, 802 (2d Dept 2019); Dohe-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.
In any event, each of plaintiff s five causes of action is subject to dismissal for failure to state a cause of action, pursuant to CPLR § 3211(a)(7). Plaintiffs first and third causes of action for religious discrimination, as grounded on the failure to accommodate theory, are inadequately pleaded. In particular, she failed to plead that the City could, in fact, accommodate her, a Uniformed NYPD sergeant, without suffering an undue hardship in light of her work duties, particularly where (as was the instance at the time) the vaccine mandate was a condition of employment for the frontline workers, such as the uniformed police officers with the NYPD See Hunold, 2024 NY Slip Op 51241(U); Alinodovar, 82 Misc.3d 1235(A). 2024 NY Slip Op 50475(U); Farah, 83 Misc.3d 1252(A), 2024 NY Slip Op 50961(U): Benoit v City of NY, 2024 WL 2188850 (Sup Ct. Kings County 2024); Chun v City of NY, 2024 NY Slip Op 30962(U) (Sup Ct, Kings County 2024); Currid v City of NY, 2024 NY Slip Op 30222(C) (Sup Ct. Kings County 2024).
See We The Patriots USA. Inc. v Hodnd, (7 F4th 266, 294 (2d Ci r 2021), clarified 17 F4th 368 (2d Cir 2021), stay, pending appeal denied 142 S Cl 734 (2021); Betoken v New York City Dept of Educ., 2023 WL 6214236, *4 (ED NY 2023), appeal filed (2d Cir 2023); Marler Montefiore Med Ctr, 2022 WL 7059182, *5 (SD NY 2022); Broeeker v New York Dept of Ediie., 585 F.Supp.3d 299, 3 14-3 15 (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 144 S.Ct. 286 (2023); Garland v New York City Fire Dept, 574 F.Supp.3d 120, 129 (EDNY 2021); Matter of Police Benevolent Assn, of City of NY, Inc. v City of N Y, 215 A.D.3d 463 (1st Dept 2.023), Iv denied AQ N.Y.3d 906 (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).
Plain tiff's second cause of action, as predicated on the City's alleged refusal to engage in the cooperative dialogue, is likewise insufficiently pleaded. She has not alleged, beyond bare legal conclusions, that the City's process for resolving plaintiff's request 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 her particular circumstances, plaintiff has not alleged facts, showing that the City HRL required "a more robust or individualized dialogue than the process [she] received." Matter of Marsteller v City of NY, 217 A.D.3d 543, 545 (1st Dept 2023), Iv dismissed & denied 41 N.Y.3d 960 (2024).
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), Iv denied 2024 NY Slip Op 74666 (Ct App 2024); Matter of Lebowit v Board of Educ. of City School Dist. of City of NY. 220 A.D.3d 537 (1st Dept 2023), Iv denied 41 N.Y.3d 987 (2024); Matter of Hogue v Board of Educ. of City School Dish of City of NY, 220 A.D.3d 416 (1st Dept 2023), Iv denied 2024 NY Slip Op 74661 (Ct App 2024): Currid, 2024 NY Slip Op 30222(13); Matter of Quagliata, 2023 WL 8523718 (Sup Ct, NY County 2023); Matter of Hithold v City of WE 2023 NY Slip Op 33508(U) (Slip Ct, NY County 2023). Matter of Bath v Fire Dept of City of NY, 2023 NY Slip Op 31855(0) (Sup Ct, NY County 2023).
Plaintiff's fourth and fifth causes of action for punitive damages and attorney's fees, respectively, may not be maintained as separate Causes of action. See Pergament v Government Empl. Ins. Co., 225 A.D.3d 799. 801 (2d Dept 2024); La Porta v Alacra, Inc., 142 A.D.3d 851, 853 (I st Dept 20I6).
The Court has considered plaintiff s remaining contentions and found them either unavailing or moot in light of its determination.
Conclusion
Accordingly, it is
ORDERED that defendants' pre-answer motion for an order, pursuant to CPLR 3211 §§ (a)(7) and (5), dismissing the Verified Complaint is granted, and the Verified Complaint is dismissed in its entirety with prejudice and without costs or disbursements; and it is further
ORDERED that the Corporation Counsel is directed to electronically serve a copy of this Decision, Order, and Judgment on plaintiffs counsel and to electronically file an affidavit of service thereof with the Kings County Clerk.
The foregoing constitutes the Decision, Order, and Judgment of this Court.