Opinion
Index No. 157990/2022 Motion Seq. No. 001
12-22-2022
In the Matter of LEONARD MOSCATELLI, Petitioner, v. THE NEW YORK CITY POLICE DEPARTMENT and THE CITY OF NEW YORK, Respondents.
Unpublished Opinion
MOTION DATE 10/14/2022
PRESENT: HON. JOHN J. KELLEY JUSTICE
DECISION, ORDER, AND JUDGMENT
John J. Kelley, Judge
The following e-filed documents, listed by NYSCEF document number (Motion 001) 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, and 34 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 May 31, 2022 determination of the City of New York Reasonable Accommodation Appeals Panel (the Panel) denying his appeal of a November 30, 2021 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 May 31, 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, the termination of the petitioner's employment with the NYPD is vacated, the petitioner is reinstated to the position of employment he had with the NYPD as of the date of termination, and the petitioner is awarded all back wages and benefits from the date of the termination of his employment, as set forth herein. The petition is otherwise denied.
By administrative order dated December 13, 2021, the Commissioner of the New York City Department of Health and Mental Hygiene 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 Detective 1st Grade in the NYPD's DSCI Project Management and Design and Evaluation Offices. On October 26, 2021 and, thus, one day before the applicable deadline, he 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. He requested that he "be permitted to continue with the current practice of submitting to regular testing and other reasonable prophylactic means, specifically the use of a mask as indicated in current Department policy." Specifically, he wrote in his request that
"[a]s a child, I was baptized and confirmed as a Catholic and I remain a faithful, active Christian today who subscribes to Christian values and believes in divine law, the bible, and the principles laid out therein, with the deepest of conviction. Based on these holy values, laws, and beliefs communicated by God the Father in the bible and through the blessed teachings of Jesus Christ, I firmly and sincerely believe in the sanctity of human life and attest to the inseparable connection between the presentation of human life as a sacred gift from God and the fruit and sign of his love embodied as such. I have supported these beliefs repeatedly in both my words and actions. In the image and spirit of Christ, I have dedicated my life to the service of others both in my professional and personal
life, spending much of my time helping the sick and those in need, through benevolent acts and by seeking guidance in prayer."
"Therefore, I hold the sincerest belief that the use of the bodies of humans killed in elective abortions, regardless of the timing of those acts, to promote biotech research, specifically the development, production, and confirmatory testing of vaccines, is immoral. I believe God has charged all faithful Christians with the duty to oppose any effort to justify and extend the actions of those who benefit from the taking of innocent life. I believe that all medical interventions derived in any way from the use of these cell lines are of illicit origins. In accordance with Christian doctrine, I believe that the bodies of humans during life and after death must be treated with respect and not exploited. According to Church teachings and doctrine, I strongly believe that to be a faithful Christian, I possess the right to live life in accordance with my conscience and I personally cannot ignore my deepest held beliefs, my faith in God, and my adherence to divine law. I also assert that the Church has taught me that a Christian is obliged to faithfully follow what they know in their heart to be just and right by the judgment of their conscience, which is the voice of divine law and the Vicar of Christ. Therefore, as a faithful Christian, I believe I must not be forced to act contrary to my conscience, especially in religious matters and moral decisions. In the bible, Ecclesiastes 12:14 states 'For God will bring every deed into judgment, with every secret thing, whether good or evil' which in my personal understanding of God's message is that each of us will be judged according to our own deeds, not those of another. Therefore I believe that in order to achieve salvation I must act in accordance with my conscience and do not believe in material or formal cooperation with evil acts, past or present, nor do I believe in moral proportionality."
The petitioner further asserted, that, while he did not reject all medical intervention, and that traditional vaccines utilized an adjuvant to induce an immune response, it was his "belief" that
"mRNA vaccines and adenovector vaccines are genetic coding instructions that aim to alter God's design as they purport to instruct your body to produce a spike protein that is not natural to the human genetic system. I believe that the use of this type of biotechnology conflicts with my conviction that we are created in God's image and believe that it is a sin for mankind to mutate his design."
In its November 30, 2021 determination, the NYPD EEOD wrote that, "[a]fter careful review of your application and the documents you submitted, the reasonable accommodation is DENIED at this time." In a supplemental memorandum dated February 8, 2022, that same agency checked off two boxes on a pre-printed form, indicating that its reasons for the determination were that the "[w]ritten statement does not set forth how religious tenets conflict[ ] with vaccine requirement" and that there was "[n]o demonstrated history of vaccination/medicine refusal." It provided no further explanation as to why those boxes were checked. By appeal letter dated February 15, 2022, the petitioner asserted that "fv]accination is not morally obligatory" and that "[t]here is a general moral duty to refuse the use of . . . vaccines that are produced by using human cells derived from direct abortions." The petitioner, however, acknowledged that his faith allowed him to use some vaccines in "certain case-specific conditions, based on a judgment of conscience," and averred that his "informed judgments about the proportionality of medical interventions are to be respected." The petitioner disagreed that he had "[n]o demonstrated history of vaccination/medicine refusal" on religious grounds or any other, although his appeal letter did not describe any prior refusals to accept a vaccination or medication. In its May 31, 2002 appeals determination, the Panel, without explanation, and without adopting the reasons identified in the February 8, 2022 supplemental memorandum, simply denied the petitioner's administrative appeal. 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 the Free Exercise clause of the First Amendment to the United States Constitution and the New York City Human Rights Law (Admin. Code of City of N.Y. §§ 8-101, et seq.) by discriminating against him on the basis of his religion. In support of their answer, the respondents submitted, among other things, an affirmation of Michael Melocowsky, an in-house attorney for the NYPD EEOD, who explained the NYPD's procedures for the submission and determination of requests for reasonable accommodations. As he described it,
"[i]n evaluating these requests I relied in part on EEOC guidelines, which set forth four factors that, '. . . either alone or in combination - might undermine an employee's credibility,' including:
(1) whether the employee has behaved in a manner markedly inconsistent with the professed belief;
(2) whether the accommodation sought is a particularly desirable benefit that is likely to be sought for secular reasons;
(3) whether the timing of the request renders it suspect (e.g., it follows an earlier request by the employee for the same benefit for secular reasons); and
(4) whether the employer otherwise has reason to believe the accommodation is not sought for religious reasons.
"Many requests for religious accommodations contained staternents or narratives with identical or verbatim language. These requests were duly considered, although the use of pro forma language may have weighed against the sincerity of an applicant's purported religious belief.
"If a reasonable accommodation request based on religious beliefs did not contain sufficient information to evaluate either these factors or other concerns, reviewers attempted to contact the applicant individually by phone or email to discuss any questions."
The respondents also submitted a written memorandum indicating that the petitioner appeared before the NYPD Pension Fund on June 1, 2022 "for service retirement," thus suggesting that the petitioner's request for a reasonable accommodation only seven months earlier was not sincere. They referred to the United States Equal Employment Opportunity Commission's (EEOC's) guidance that "personal preferences, or any other nonreligious concerns (including about the possible effects of the vaccine), do not qualify as religious beliefs," and that to qualify as a religious belief the cited belief "should be . . . part of a comprehensive religious beliefs system and is not simply an isolated teaching."
Where, as here, an administrative determination is made, and there is no statutory requirement of a trial-type hearing, that determination must be confirmed unless it is arbitrary and capricious, affected by an error of law, or made in violation of lawful procedure (see CPLR 7803[3]; Matter of Madison County Indus. Dev. Agency v State of N.Y. Auths. Budget Off., 33 N.Y.3d 131, 135 [2019]; Matter of Lemma v Nassau County Police Officer Indem. Bd., 31 N.Y.3d 523, 528 [2018]; Matter of McClave v Port Auth. of N.Y. & N.J., 134 A.D.3d 435, 435 [1st Dept 2015]; Matter of Batyreva v New York City Dept. of Educ., 50 A.D.3d 283, 283 [1st Dept 2008]; Matter of Rumors Disco v New York State Liquor Auth., 232 A.D.2d 421, 421 [2d Dept 1996]). Inasmuch as the petitioner made no allegations that the Panel's determination was made in violation of lawful procedure, the Panel's determination to deny the petitioner's administrative appeal must be confirmed unless it was arbitrary and capricious or affected by an error of law.
A determination is arbitrary and capricious where it is not rationally based, or has no support in the record (see Matter of Gorelik v New York City Dept. of Bldgs., 128 A.D.3d 624, 624 [1st Dept 2015]), or where the decision-making agency fails to consider all of the factors it is required by statute to consider and weigh (see Matter of Kaufman v Incorporated Vil. of Kings Point, 52 A.D.3d 604, 608 [2d Dept 2008]). Stated another way, a determination is arbitrary and capricious when it is made "without sound basis in reason and is generally taken without regard to the facts" (Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 N.Y.2d 222, 231 [1974]). Consequently, an agency determination is arbitrary and capricious where the agency provides only a "perfunctory recitation" of relevant statutory factors or other required considerations as a basis for its conclusions (Matter of BarFreeBedford v New York State Liq. Auth., 130 A.D.3d 71, 78 [1st Dept 2015]; see Matter of Wallman v Travis, 18 A.D.3d 304, 308 [1st Dept 2005] ["perfunctory discussion"]), provides no reason whatsoever for its determination (see Matter of Rhino Assets, LLC v New York City Dept. for the Aging, SCRIE Programs, 31 A.D.3d 292, 294 [1st Dept 2006]; Matter of Jones v New York State Dept. of Corrections &Community Supervision, 2016 NY Misc. LEXIS 15778, *1-2 [Sup Ct, Erie County, Jul. 28, 2016]), or provides only a post hoc rationalization therefor (see Matter of New York State Chapter, Inc., Associated Gen. Contrrs. of Am. v New York State Thruway Auth., 88 N.Y.2d 56, 756 [1996]; Matter of L&M Bus Corp. v New York City Dept. of Educ., 71 A.D.3d 127, 135 [1st Dept 2009]).
"Notably, a fundamental principle of administrative law long accepted limits judicial review of an administrative determination solely to the grounds invoked by the respondent, and if those grounds are insufficient or improper, the court is powerless to sanction the determination by substituting what it deems a more appropriate or proper basis. Consequently, neither Supreme Court nor this Court may search the record for a rational basis to support respondent's determination, or substitute its judgment for that of respondent"(Matter of Figel v Dwyer, 75 A.D.3d 802, 804-805 [3d Dept 2010] [internal quotation marks and citations omitted]).
"Courts have rarely singled out error of law by name . . . as a question for consideration in an Article 78 proceeding" (Vincent C. Alexander, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR 7803:1) "The question of whether an administrative agency's determination is affected by an error of law is often implicit in the nature of the grievance, and will often turn on the underlying substantive law applicable to the determination" (Matter of Held v State of New York Workers' Compensation Bd, 2008 NY Slip Op 52741[U], *7, 2008 NY Misc. LEXIS 10881, *20-21 [Sup Ct, Albany County, Jul 7, 2008]; see also 14-7803 Weinstein-Korn-Miller, NY Civ Prac P 780301[3]) Hence, an administrative determination is affected by an error of law where the agency incorrectly interprets or improperly applies a statute, regulation, or rule (see Matter of New York State Pub Empl Relations Bd v Board of Educ of City of Buffalo, 39 N.Y.2d 86, 92 [1976]; see generally Matter of CVS Discount Liquor v New York State Liq Auth, 207 A.D.2d 891, 892 [2d Dept 1994]), or where its determination violates some other statutory or constitutional provision (see Matter of New York State Pub Empl Relations Bd v Board of Educ of City of Buffalo, 39 N.Y.2d at 93 [Fuchsberg, J, concurring] ["an order which is specifically and expressly forbidden by . . . statute is an error of law"]).
Initially, only the Panel's administrative determination is subject to review in this proceeding. When an administrative agency renders a determination on an administrative appeal from the decision of another agency, the agency rendering the initial determination generally is not a proper party to any CPLR article 78 challenge to the appellate determination, as the initial determination has been superseded. Rather, only the determination of the administrative appeal is subject to judicial review (see Matter of Rivera v Blass, 127 A.D.3d 759 [2d Dept 2015]; Matter of Safran v Shah, 119 A.D.3d 590, 590-591 [2d Dept 2014]; Matter of Berman v New York State Dept. of Social Servs., 107 A.D.3d 509 [1st Dept 2013]; Matter of Baker v Mahon, 72 A.D.3d 811, 813 [2d Dept 2010]; see also Matter of Holland v New York City, 271 A.D.2d 609 [2d Dept 2000]; Jiggetts v Grinker, 148 A.D.2d 1, 21 [1st Dept 1989], revd on other grounds 75 N.Y.2d 411 [1990]; see generally Matter of Armacida v Reitz, 141 A.D.3d 713 [2d Dept 2016]; Matter of TAC Peek Equities, Ltd. v Town of Putnam Val. Zoning Bd. of Appeals, 127 A.D.3d 1216 [2d Dept 2015]; Matter of Johnson v Scholastic, Inc., 52 A.D.3d 375, 375 [1st Dept 2008]; Matter of Solid Waste Servs., Inc. v New York City Dept. of Envtl. Protection, 29 A.D.3d 318, 319 [1st Dept 2006]). Where, as here, the joinder of the agency that rendered the initial determination is necessary to give complete relief to the petitioner, that agency is a proper party for that limited purpose only, and not for the purpose of reviewing its determination.
Inasmuch as the Panel's determination sets forth absolutely no rationale whatsoever for its conclusions, failing even to incorporate or refer to the reasons articulated by the NYPD EEOD, it is facially arbitrary and capricious, and may be annulled on that ground alone (see Matter of Deletto v Adams, 2022 NY Slip Op 33129[U], *6, 2022 NY Misc. LEXIS 5571, *7 [Sup Ct, N.Y. County, Sep. 13, 2022]).
Even were the court directly to review the NYPD EEOD's initial determination, it nonetheless would be constrained to conclude that the initial determination also was arbitrary and capricious. The NYPD EEOD's determination is a prime example of a determination that sets forth only the most perfunctory discussion of reasons for administrative action. The court has nothing before it that would enable it to analyze how the pre-printed "reasons" that were checked off on the supplement memorandum related to or defeated the petitioner's request for accommodation. This type of conclusory administrative determination would require the court to speculate as to the thought processes of the person who checked the boxes, and provide its own reasons for those choices, an approach prohibited by longstanding rules of law. (see id., 2022 NY Slip Op 33129[U], *3-4, *6, 2022 NY Misc. LEXIS 5571, *5-6). Here, it is simply incomprehensible as to how the NYPD EEOD could conclude that the petitioner's written statement "does not set forth how religious tenets conflict[ ] with vaccine requirement," as the petitioner set forth, in detail, how and why it violated his religious tenets were he to be inoculated with a vaccine that was developed from stem cells from aborted fetuses. In the absence of any explanation as to why the petitioner's statement did not articulate his beliefs in this regard, the NYPD EEOD determination is arbitrary and capricious. Moreover, the NYPD EEOD's bald conclusion that the petitioner had "[n]o demonstrated history of vaccination/ medicine refusal" cannot serve as the basis for an administrative determination where, as here, he was not asked to provide such examples, and the record thus is silent as to whether he had or had not previously refused medications or vaccinations on the ground of religious opposition to the use of fetal stem cells.
The court's conclusion in this regard should not be construed as a ruling that, had the petitioner's stated reasons for his request for an exemption, and his discussion of religious doctrine, properly been analyzed and explained by the Panel or the NYPD EEOD in the challenged decisions, those contentions would have constituted a proper basis for an exemption. That would have required a forthright engagement by those agencies with the religious contentions and arguments raised by the petitioner in his application, which was not done here. It would also have required some actual inquiry by the decision makers into the petitioner's prior behavior concerning vaccines and medications. Had those agencies taken that approach, their determinations might have survived judicial scrutiny, as the petitioner provided scanty proof that the rejection of vaccinations or medications that have been developed, improved, or tested using fetal stem cells is an accepted tenet of Catholic doctrine, as opposed to a personal interpretation of doctrine by a lay person or even a few members of the clergy. Since the agencies did not pursue such an inquiry here, the court is constrained by long-established principles of administrative law to annul the challenged determination.
With respect to the errors of law that the petitioner alleged, namely, the violation of his First Amendment right to free exercise of religion and discrimination in employment on the basis of religion, the petitioner has not established either that the City's vaccine mandate or the termination of his own employment were premised upon religion, as he has not demonstrated that his conclusions about sin, the use of embryonic stem cells in the development and improvement of various vaccinations and medications, and the alleged proscription of desecrating the human body via any genetic manipulation that mRNA vaccinations might generate, are established Catholic doctrine, or merely his personal interpretation of his obligations as a practicing Catholic (see generally F.F. v State of New York, 65 Misc.3d 616 [Sup Ct, Albany County 2019]). Nor has he demonstrated that he had previously declined to be treated with drugs such as acetaminophen, albuterol, aspirin, ibuprofen, Tylenol, Pepto Bismol, Tums, Lipitor, Senokot, Motrin, Maalox, Ex-Lax, Benadryl, Sudafed, Preparation H, Claritin, Prilosec, and Zoloft, all of which were either developed, improved, or recently tested by their manufacturers for adverse side effects using stem cells from aborted fetuses. With respect to these causes of action, the court further notes that declaratory relief is not available as a remedy in a CPLR article 78 proceeding (see Matter of Cuffy v Pesce, 178 A.D.3d 695, 695 [2d Dept 2019]; Matter of Krichevsky v Dear, 172 A.D.3d 1370, 1370 [2d Dept 2019]; CPLR 3017). Rather, only a judgment annulling or vacating an administrative determination is available in a CPLR article 78 proceeding where a petitioner establishes an error of law, and the court concludes here that the adverse determinations against the petitioner cannot be annulled or vacated on that ground.
Moreover, although the petitioner relies on the decision in the declaratory judgment action entitled Police Benevolent Assn. of City of N.Y., Inc. v City of New York (2022 NY Slip Op 33185[U], 2022 NY Misc. LEXIS 5420 [Sup Ct, N.Y. County, Sep. 23, 2022] [Lyle Frank, J.]), the judgment in that action declared only that the City's vaccine mandate was invalid to the extent that it had been employed to impose a "new condition of employment" to "current P[olice] B[enevolent] A[ssociation] members" that had not been the subject of collective bargaining. The petitioner here did not allege, and there is no evidence in the record, that he was a PBA member at the time that the NYPD EEOD denied his request for an exemption or the Panel denied his administrative appeal. Hence, although the court recognizes that a "court of coordinate jurisdiction is precluded from issuing any ruling at variance with an existing order or judgment that is binding upon the party seeking to vacate or modify its terms" (Arroyo-Graulau v Merrill Lynch Pierce, Fenner & Smith, Inc., 135 A.D.3d 1, 9 [1st Dept 2015]), and thus is bound to give effect to Justice Frank's ruling, the court is unable to grant relief to the petitioner on the ground that the vaccine mandate was vacated with respect to PBA members.
Under the circumstances presented here, it is appropriate for the court, upon the vacatur and annulment of the Panel's determination, to direct the NYPD to grant the petitioner's request for an exemption and reinstate him to his prior position of employment, rather than remitting the matter to the Panel or the NYPD EEOD, either for the reconsideration of the petitioner's application or the explication of the reasons for the challenged determinations (see generally Matter of B.L. v Lawsky, 171 A.D.3d 401, 402 [1st Dept 2019]; Matter of Jay's Distribs., Inc. v Boone, 148 A.D.3d 1237, 1241 [3d Dept 2017]; Matter of Pantelidis v New York City Bd. of Stds. & Appeals, 43 A.D.3d 314 [1st Dept. 2007]; cf. Matter of Weill v New York City Dept. of Educ., 61 A.D.3d 407, 408 [1st Dept 2009] [remitting to a Board of Education panel considering a teacher's allegedly inappropriate conduct so that it may articulate its reasons for rejecting petitioner's excuse for failing timely to request a hearing]).
In light of the vacatur of the Panel's determination and the reinstatement of the petitioner's employment, there is no need to address whether the penalty of termination of employment constituted an abuse of discretion.
The court declines to award attorneys' fees to the petitioner since it is denying relief to him in connection with his First Amendment cause of action, presumably asserted pursuant to 42 USC § 1983, and his cause of action alleging violation of the New York City Human Rights Law, which are the only claims that he asserted for which attorneys' fees may be awarded. City agencies generally are not otherwise liable for an award of attorneys' fees in CPLR article 78 proceedings, as they are not State agencies within the meaning of the Equal Access to Justice Act (CPLR art 86) (see Matter of Herman v New York City Dept. of Hous. Preserv. & Dev., 147 A.D.3d 756, 757 [1st Dept 2017]).
The parties' remaining contentions are without merit.
Accordingly, it is
ADJUDGED and ORDERED that the petition is granted to the extent that the May 31, 2022 determination of the City of New York Reasonable Accommodation Appeals Panel denying the petitioner's appeal of a November 30, 2021 New York City Police Department Equal Employment Opportunity Division determination, that had denied his request for a reasonable accommodation exempting him from the City's mandatory COVID-19 employee vaccination requirement, is annulled, the petitioner's request for the exemption is thereupon granted, the termination of the petitioner's employment with the New York City Police Department is annulled, the petitioner is reinstated to the position of Detective 1st Grade in the New York City Police Department's DSCI Project Management and Design and Evaluation Offices retroactive to May 31, 2022, and the petitioner is awarded back pay and benefits retroactive to May 31, 2022 to the extent that he has yet to receive them, and the petition is otherwise denied and the proceeding is otherwise dismissed; and it is further, ORDERED that the New York City Police Department shall forthwith reinstate the petitioner to the position of Detective 1st Grade in its DSCI Project Management and Design and Evaluation Offices; and it is further, ORDERED that the petitioner, within 30 days of the entry of this Order and Judgment, shall submit to the court proof of the back salary and benefits that he has not been paid, as of the date of the termination of his employment with the New York City Police Department, after which the court will issue a supplemental order directing the payment thereof.
This constitutes the Decision, Judgment, and Order of the court.