Quagliata v. N.Y. City Police Dept.

• Docket Number: Index No. 158420/2022,Motion Seq. No. 001
• Decision Date: 17 March 2023
• Parties: In the Matter of MARCHELO QUAGLIATA, Petitioner, v. NEW YORK CITY POLICE DEPARTMENT and CITY OF NEW YORK, Respondents.
• Court: New York Supreme Court

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2023 NY Slip Op 30836(U)

In the Matter of MARCHELO QUAGLIATA, Petitioner, v. NEW YORK CITY POLICE DEPARTMENT and CITY OF NEW YORK, Respondents.

Index No. 158420/2022, Motion Seq. No. 001

Supreme Court, New York County

March 17, 2023

Unpublished Opinion

MOTION DATE 11/30/2022

DECISION + ORDER ON MOTION

JOHN J. KELLEY, JUSTICE

The following e-filed documents, listed by NYSCEF document number (Motion 001) 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29 30 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 15, 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. He also seeks reinstatement to his position with the NYPD, along with back wages and benefits. 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], affd 2 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, 963-964 [2d Dept 2009] [Supreme Court improperly dismissed complaint sua sponte for failure to join necessary party]). The court further notes, however, 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, the court declines to direct the joinder or intervention of the Panel, 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 123rd Precinct. On October 22, 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 Catholic faith made it impossible for him to take medications and vaccinations that were developed employing embryonic stem cells. Specifically, he wrote in his request that

"[t]he undersigned is seeking a religious accommodation from the City of New York's COVID 19 vaccine requirement because of my sincerely held beliefs as a devout Christian. In Corinthians 6:19-20, The Bible commands followers to honor God by caring responsibly for our bodies as temples of the Holy Spirit. I believe that receiving any COVID-19 vaccine would violate the bibles command to honor God with my body because of the involvement of fetal stem cell lines in the COVID-19 vaccines' development (Johnson & Johnson) and testing (Moderna and Pfizer). The Bible teaches that a developing fetus in the womb was created by God and is a life that deserves to be protected, see Psalm 139. Therefore, receiving a COVID-19 vaccine would violate my deeply held beliefs about, first honoring god in caring for my body, and second, advocating for the protection of sacred life. See Proverbs 13:8-9, Jeremiah 22:3, James 1:27."

In its February 15, 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 two boxes on a pre-printed form, indicating that its reasons for the determination were that the "[o]bjection was personal, political, or philosophical" and that there was "[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 19, 2022, the petitioner appealed to the Panel, asserting that "I believe that if I were to receive this vaccination I would be prevented from worshiping my Creator in the way that I see fit, and that which is protected under the First Amendment of Freedom of Religion." He further asserted that

"[t]he Bible says that man has free will, which in turn means we have the right to decide what medication and vaccinations we put into our bodies. Mandates that force vaccinations go against the Word of the Lord. The medical establishment, as well as most friends and family apply pressure and guilt to others in society to participate in the vaccination process. We are told that if we do not vaccinate, we put ourselves and everyone around us in jeopardy. However, the beliefs that 1 hold true take precedent in order for me to ensure that my body is clean, and my faith is strong. God has communicated to me that to address my lawless, healthy, God-given body, the procedure of vaccination would be a sin against my conscience."

Although the petitioner apparently is not a physician or scientist, he claimed to have conducted "much individual research" to "understand how these vaccines were developed," asserted that "aborted fetal cells" were used to conduct testing on both Pfizer and Moderna vaccines, and averred that, due to the uncertainty as to long-term effects, he could not "comply with being forced to put genetically modified mRNA protein strands into my body that may affect my means to having a family in the future." Although he essentially admitted that he had received numerous vaccinations as a child, he claimed that he "never received any vaccines that were [his] choice as a grown adult man." The petitioner also contended that his objection to getting vaccinated was indeed religious, and not merely political or philosophical.

In its September 21, 2022 appeals determination, the Panel, although adopting the reasons identified in the NYPD's February 15, 2022 decision, otherwise denied the petitioner's administrative...