Daniels v. The N.Y.C. Police Dep't

• Citation: 2023 NY Slip Op 31357 (U)
• Decision Date: 24 April 2023
• Docket Number: Index No. 158265/2022,Motion Seq. No. 002
• Parties: In the Matter of BRIAN DANIELS, Petitioner, v. THE NEW YORK CITY POLICE DEPARTMENT and THE CITY OF NEW YORK Respondent.
• Court: New York Supreme Court

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2023 NY Slip Op 31357(U)

In the Matter of BRIAN DANIELS, Petitioner, v. THE NEW YORK CITY POLICE DEPARTMENT and THE CITY OF NEW YORK Respondent.

Index No. 158265/2022, Motion Seq. No. 002

Supreme Court, New York County

April 24, 2023

Unpublished Opinion

MOTION DATE 02/03/2023

PRESENT: HON. JOHN J. KELLEY Justice

DECISION + ORDER ON MOTION

JOHN J. KELLEY, J.S.C.

The following e-filed documents, listed by NYSCEF document number (Motion 002) 1, 2, 3, 4, 5, 6, 7, 8, 24, 25, 26, 27, 28, 29 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44 45, 46 were read on this motion to/for ARTICLE 78 (BODY OR OFFICER).

In this proceeding pursuant to CPLR article 78, the petitioner seeks judicial review of a September 21, 2022 determination of the City of New York Reasonable Accommodation Appeals Panel (the Panel). That determination affirmed a February 8, 2022 New York City Police Department (NYPD) Equal Employment Opportunity Division (EEOD) determination that had denied his request for a reasonable accommodation exempting him from the City's mandatory COVID-19 employee vaccination requirement on religious grounds. The respondents-NYPD and City of New York-answer the petition and submit the administrative record. The petition is granted to the extent that the September 21, 2022 determination is annulled as arbitrary and capricious, the denial of the petitioner's request for a religious exemption from the COVID-19 vaccination mandate is vacated, and the matter is remitted to the Panel for further consideration and a new discretionary determination that explicates, with the necessary detail, the reasons for its determination. The petition is otherwise denied.

In the first instance, the court notes that, in a proceeding pursuant to CPLR article 78, the governmental agency that rendered a final determination in connection with a dispute or that performed the challenged action, must be named as a party (see Matter of A & F Scaccia Realty Corp, v New York City Dept, of Envtl. Protection, 200 A.D.3d 875, 877 [1st Dept 2021]; Matter of Centeno v City of New York, 115 A.D.3d 537, 537 [1st Dept 2014]; Matter of Solid Waste Servs., Inc. v New York City Dept, of Envtl. Protection, 29 A.D.3d 318, 319 [1st Dept 2006]; Matter of Emmett v Town of Edmeston, 3 A.D.3d 816, 818 [3d Dept 2004], affd2 N.Y.3d 817 [2004]). The petitioner did not name the Panel as a party respondent, even though it was the agency made the final, reviewable determination here. For reasons that the court cannot fathom, the New York City Corporation Counsel did not defend this proceeding on the ground that the Panel was a necessary party that was neither named nor joined. Nonetheless, "[a] court's power to dismiss a complaint, sua sponte, is to be used sparingly and only when extraordinary circumstances exist to warrant dismissal" (Onewest Bank, FSB v Fernandez, 112 A.D.3d 681, 682 [2d Dept 2013]; see Deutsche Bank Natl. Trust Co. v Winslow, 180 A.D.3d 1000, 1001 [2d Dept 2020]; see generally Transportation Ins. Co. v Simplicity, Inc., 61 A.D.3d 963, 963964 [2d Dept 2009] [Supreme Court improperly dismissed complaint sua sponte for failure to join necessary party]).

The court further notes that the defense of failure to join a necessary party may be raised by motion "at any time" (see CPLR 3211 [e]; GMAC Mortgage, LLC v Coombs, 191 A.D.3d 37, 43-44 [2d Dept 2020]). Consequently, "a court may, at any stage of a case and on its own motion, determine whether there has been a failure to join necessary parties" (Matter of A&F Scaccia Realty Corp, v New York City Dept, of Envtl. Protection, 200 A.D.3d at 877; see Matter of Lezette v Board of Educ., Hudson City School Dist., 35 N.Y.2d 272, 282 [1974]). By virtue of that authority, the court may sua sponte direct a party's joinder or intervention (see Country Wide Home Loans, Inc. v Harris, 136 A.D.3d 570, 571 [1st Dept 2016]). In light of the Corporation Counsel's tactical determination to defend this proceeding on the merits, however, the court declines to direct the joinder or intervention of the Panel (see CPLR 1001 [b][1 ], [2]), and will address the parties' substantive contentions.

On October 20, 2021, the Commissioner of the New York City Department of Health and Mental Hygiene (NYC DOHMH) issued an order requiring City employees, including NYPD officers, to receive vaccinations protecting them from the COVID-19 virus on or before October 29, 2021. That administrative order 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 November 1, 2021." The order also permitted employees to apply for a reasonable accommodation from the vaccine mandate. By administrative order dated December 13, 2021, the NYC DOHMH Commissioner required City agencies to exclude from employment staff members who were not vaccinated against the COVID-19 virus, but provided the opportunity for City employees to apply for a reasonable accommodation exemption from the requirement, based, among other things, on religious grounds. On March 24, 2022, New York City Mayor Eric Adams issued Emergency Executive Order No. 62, referable to the ongoing COVID-19 pandemic. In that executive order, the Mayor incorporated the provisions of the December 13, 2021 order, and directed that "covered entities," including the NYPD,

"shall continue to require that a covered worker provide proof of vaccination, unless such worker has received a reasonable accommodation. Covered entities shall continue to keep a written record of their protocol for checking covered workers' proof of vaccination and to maintain records of such workers' proof of vaccination."

The executive order defined "covered workers" to include NYPD employees and officers.

The petitioner was a police officer assigned the NYPD's Emergency Services Unit Squad 6, in South Brooklyn. On or about October 27, 2021, the petitioner submitted, to the NYPD, a request for a reasonable accommodation exempting him from the COVID-19 vaccination requirement on the ground that his Baptist faith made it impossible for him to take any type of vaccination. He cited several passages from both the Old and New Testaments of the Bible that generally equated the human body with a sacred temple, and discussed the concept of "purity," including Romans 12:2, Proverbs 16:2, Psalms 119:9, I Corinthians 6:19-20, and Psalms 91:1-16. As the petitioner phrased it

"[t]hese are just a few of the many scriptures [sic] that help me to hold strong to my belief and my faith in the holy word that compel[ ] me to make sure that I treat my body as a temple and give me strength to continue to hold strong against the pressures of modern society that try to violate Such beliefs by forcing a vaccine in my Temple. The right to choose is more important than ever before in my blood and all the things that make up my spiritual physical and mental being will stay as pure as they can be in this world and the next. I would greatly appreciate the chance to be exempt from this vaccine mandate as it would destroy my spiritual health and force me to go against all that I believe and all that I am trying to be in god's eyes."

The petitioner conceded that his parents had him vaccinated with numerous childhood vaccines, but that, as an adult, he never had vaccines administered to him, although he did not provide any information as to whether he received all of the vaccinations required to qualify for entry into the NYPD police academy. The petitioner also submitted a boilerplate affidavit by Dr. Harvey A. Risch, which has been submitted along with the petitions of dozens of other City employees seeking exemptions from the vaccine mandate. Dr. Risch averred that even those who are vaccinated with the COVID-19 vaccine nonetheless might experience breakthrough infections, and that the effectiveness of vaccines wanes more rapidly in connection with the more recently discovered variants of the virus.

In its February 8, 2022 determination, the NYPD EEOD wrote that, "[a]fter careful review of your application and the documents you submitted, the reasonable accommodation is DENIED due to the following reasons," and thereupon checked off three boxes on a pre-printed form, indicating that its reasons for the determination were that there was "[insufficient or missing religious documentation," that the petitioner's written statement did "not set forth how religious tenets conflict[ ] with vaccine requirement," and that the petitioner presented "[n]o demonstrated history of vaccination/medicine refusal." It provided no further explanation as to why those boxes were checked.

In a letter dated February 14, 2022, the petitioner appealed to the Panel, again asserting that he held strong religious beliefs that vaccines of any sort somehow violated the tenets of his religion, and that compelling him to receive a vaccination was "unethical." He further asserted that he had only received prior vaccinations because his parents compelled him to do so. Although he claimed to have been raised in a church setting, presumably by his parents, he did not accuse his parents of violating the tenets of the Baptist church in having him receive all childhood vaccinations that were necessary to enroll him in school.

In its September 21, 2022 appeals determination, the Panel, although adopting the reasons identified in the NYPD's February 8, 2022 decision, otherwise denied the petitioner's administrative appeal without further explanation. This proceeding ensued.

In his petition, the petitioner asserted that the NYPD's determination to reject his request for a reasonable accommodation was arbitrary and capricious and affected by errors of law, in that it violated both...