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, 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. DECISION + ORDER ON PETITION Upon the foregoing documents, the court grants in part Petitioner Patrick Agugliaro’s (“Petitioner”), Verified Petition as against Respondent The City of New York (“City”), to the extent that the court determines that Respondent City’s denial of Petitioner’s appeal of The New York City Police Department’s (NYPD’s) denial of his religious accommodation request was arbitrary and capricious, the court annuls and reverses the decision and orders Respondent City to permit Petitioner to continue to work at full pay status. The court also enjoins Respondent City from placing Petitioner on Leave Without Pay, from terminating his employment and from instituting any adverse employment action for Petitioner’s failure to get vaccinated against the Covid-19 virus. The court denies the remainder of the Verified Petition and dismisses it against Respondents Eric Adams and Ashwin Vasan, without costs to any party. Petitioner is an unvaccinated NYPD Detective. Petitioner brought this proceeding against Respondents City, Eric Adams, in his official capacity, and Ashwin Vasan, in his official capacity. In his Verified Petition, Petitioner alleges in substance that he refused to be vaccinated against Covid-19 because it violates his sincerely held religious beliefs. Petitioner further states that he has complied with the weekly testing requirement. On October 20, 2021, the Commissioner of the New York City Department of Health and Mental Hygiene ordered that all City employees were required to show proof of at least one dose of vaccination by 5:00 p.m. on October 29, 2021, or they would be excluded from the premises at which they work beginning on November 1, 2021. City employees could apply for a reasonable accommodation for exemption from the vaccination requirement by October 27, 2021, or they would be placed on Leave Without Pay status effective on November 1, 2021. The City would still require the employee to submit weekly negative PCR Covid-19 test results to continue working. On or about October 26, 2021, Petitioner filed a reasonable accommodation request for exemption from Covid-19 testing based on his alleged sincere and genuine religious beliefs. Petitioner stated in substance that he was a Catholic who believes that life begins at conception and that abortion is a sin and murder. He further stated that he could not take the vaccine because it was developed or tested using cell lines from aborted fetuses/children and that to take the vaccine would be “a sin against God and a violation of his Commandments for which I would be held morally accountable.” Petitioner included a letter from Rev. Patrick Flanagan regarding Roman Catholic beliefs and why Petitioner and other Roman Catholics are precluded from getting the vaccine based on their religious beliefs. On December 14, 2021, NYPD denied Petitioner’s request and checked a box indicating that Petitioner’s objection was “personal, political, or philosophical.” Petitioner appealed. On May 19, 2022, Respondent City paused its Covid-19 vaccine mandate for NYPD employees and Petitioner was not placed on Leave Without Pay or terminated. On or about August 8, 2022, the NYC Employee Vaccine Appeals notified Petitioner via email that his appeal was denied. The denial indicated that the decision classification was “Does Not Meet Criteria.” The denial indicated that the determination was made after The City of New York Reasonable Accommodation Appeals Panel (“Appeals Panel”) carefully reviewed Petitioner’s agency’s determination, all of the documentation submitted to the agency and the additional information that Petitioner submitted in connection with the appeal. It also advised Petitioner that it was the final decision regarding his request for a reasonable accommodation, that he had seven calendar days to submit proof of vaccination, or if he failed to do so, then he would be placed on Leave Without Pay. Petitioner’s Verified Petition challenges the denial of his appeal on various grounds and seeks a judgment: 1) Declaring that Respondents’ denial of Petitioner’s request for a reasonable accommodation exempting him from the Covid-19 vaccination requirement is arbitrary, capricious and an abuse of discretion; 2) Declaring that the decision denying Petitioner’s request for a religious exemption be annulled, voided and vacated; 3) Enjoining Respondents from enforcing the vaccine mandate as an abuse of discretion; 4) Enjoining Respondents from violating Petitioner’s New York State Constitution Free Exercise Rights, all with a temporary restraining order, preliminary and permanent injunction; 5) Declaring that Respondents violated Petitioner’s Constitutional Rights; 6) Granting a Temporary Restraining Order enjoining Respondents from placing Petitioner on Leave Without Pay on August 17, 2022, and terminating him on August 19, 2022, at 5:00 p.m.; and 7) Awarding Petitioner his reasonable attorneys’ fees, costs, and expenses. Respondents filed an Answer in opposition to Petitioner’s Verified Petition. On February 9, 2023, after the filing of the papers in this matter, Respondent City amended its vaccine mandate and no longer required City employees to show proof of vaccination to enter their workplaces. As such, Respondents argue that the Petition is moot, particularly since Petitioner was never placed on Leave Without Pay, nor terminated. Petitioner argues that the Petition is not moot and that the court should decide the matter. In an Article 78 proceeding, the scope of judicial review is limited to whether a governmental agency’s determination was made in violation of lawful procedures, whether it was arbitrary or capricious, or whether it was affected by an error of law (see CPLR §7803[3]; Matter of Pell v. Board of Educ., 34 NY2d 222, 230 [1974]; and Scherbyn v. BOCES, 77 N.Y.2d 753, 757-758 [1991]). In reviewing an administrative agency’s determination, courts must ascertain whether there is a rational basis for the agency’s action or whether it is arbitrary and capricious in that it was without sound basis in reason or regard to the facts (Matter of Stahl York Ave. Co., LLC v. City of New York, 162 AD3d 103, 109 [1st Dept 2018]; Matter of Pell, 34 NY2d at 231). Where the agency’s determination involves factual evaluation within an area of the agency’s expertise and is amply supported by the record, the determination must be accorded great weight and judicial deference (Testwell, Inc. v. New York City Dept. of Bldgs., 80 AD3d 266, 276 [1st Dept 2010]). When a court reviews an agency’s determination it may not substitute its judgment for that of the agency and the court must confine itself to deciding whether the agency’s determination was rationally based (Matter of Medical Malpractice Ins. Assn. v. Superintendent of Ins. of State of N.Y., 72 NY2d 753, 763 [1st Dept 1988]). Furthermore, an agency is to be afforded wide deference in the interpretation of its regulations and, to a lesser extent, in its construction of the governing statutory law, however an agency cannot engraft additional requirements or assume additional powers not contained in the enabling legislation (see Vink v. New York State Div. of Hous. and Community Renewal, 285 AD2d 203, 210 [1st Dept 2001]). The court has the authority to enter judgment granting Petitioner the relief for which he is entitled and since Petitioner seeks review of an agency’s determination, the judgment may annul or confirm the determination in whole or in part, or modify it, and the court may direct or prohibit specified action by the Respondents (CPLR 7806). The court also has discretion to order restitution or damages. As an initial matter, the court determines that the Verified Petition is not moot, despite Respondent City’s lifting of the vaccine mandate. As such, the court will decide the Petition on its merits. The court determines that Respondent City’s decision, dated August 8, 2022, denying Petitioner’s appeal of NYPD’s denial of his request for a reasonable accommodation and exemption from the Covid-19 vaccination requirement was arbitrary and capricious and without a rational basis. The court finds that the determination was without sound basis in reason and without regard for the facts included in Petitioner’s letters, which contradict the purported reason set forth in the denial of Petitioner’s appeal and in NYPD’s underlying checked box denial of his application. However, the court denies the Verified Petition and dismisses it against Respondents Eric Adams and Ashwin Vasan, as Petitioner failed to demonstrate his entitlement to any of the relief requested against them. In his submissions, Petitioner included details about his Catholic beliefs, his belief that the vaccines were developed or tested using cells from fetuses and why taking the vaccine would violate his sincerely held religious beliefs. Conversely, despite Petitioner’s claims, the Appeals Panel failed to mention any of Petitioner’s arguments, let alone refute them as being based on something other than Petitioner’s sincerely held religious beliefs. The decision also failed to mention the reasons set forth in NYPD’s underlying decision denying Petitioner’s application, failed to state whether the Appeals Panel agreed with the reasons set forth in NYPD’s decision and failed to state whether the Appeals Panel was affirming the decision. Additionally, the Appeals Panel failed to state what the criteria was for obtaining a reasonable accommodation, which criteria Petitioner’s request failed to satisfy, or provide any details or support for its determination. The court cannot predict whether the unsatisfied criteria was based on the lack of sincerity of the beliefs, whether the beliefs were non-religious in nature, whether the vaccine did not contradict Petitioner’s beliefs, or something else. Simply put, the denial of the appeal is devoid of any explanation, reasoning, or support for its determination that Petitioner’s request for a reasonable accommodation did not meet criteria. Therefore, the purported reason provided is tantamount to no reason at all. Additionally, even if the Appeals Panel based its decision on the reasons set forth in the underlying checked box denial, then Respondent City still failed to provide any basis for the court to evaluate whether the denial had a rational basis. The checked box was too general, conclusory, and without explanation to adequately apprise Petitioner of the reasons for the denial of his request. There was no evidentiary basis in support of the denial or NYPD’s claim that Petitioner’s objection was based on “personal, political or philosophical” reasons. It is unclear whether Respondent NYPD found that Petitioner’s alleged beliefs were personal, political, philosophical, or a combination of any, or all of these alleged reasons. However, it is clear that neither Respondents nor the court can impose our opinions about whether we agree with Petitioner’s alleged religious beliefs or his understanding of the purported scientific and medical reasons why the vaccines violate his religious beliefs. The City’s decision denying the appeal provided no evidentiary basis or reasons for challenging whether Petitioner’s alleged religious beliefs were sincerely held or whether the vaccine conflicted with those beliefs. Therefore, based on the details and support provided in Petitioner’s submission, the court finds that the Appeals Panel’s decision that Petitioner did not meet criteria, without more, fails to provide a sufficient basis for denial of Petitioner’s appeal. Therefore, the court finds that the Appeals Panel’s decision was not rationally based and was arbitrary and capricious. The court declines to accept Respondents’ additional information provided in their Answer and submissions in opposition to Petitioner’s Verified Petition in an effort to explain the reasons for the denial of Petitioner’s appeal and details of the guidelines and criteria considered by the Appeals Panel as the court is limited to the appellate record before it and cannot consider Respondents’ subsequent explanations. The court denies Petitioner’s additional requests for relief. Therefore, the court grants in part Petitioner’s Verified Petition, to the extent set forth herein. The court has considered any additional arguments not specifically discussed herein and the court denies any additional relief not expressly granted herein. As such, it is hereby ORDERED and ADJUDGED that the court grants in part Petitioner Patrick Agugliaro’s Article 78 Verified Petition against Respondent The City of New York, to the extent that the court determines that Respondent The City of New York’s denial of Petitioner’s appeal of The New York City Police Department’s denial of his religious accommodation request for exemption from the Covid-19 vaccination requirement was arbitrary and capricious, the court annuls and reverses the decision and the court orders Respondent The City of New York to continue permitting Petitioner to work at full pay status with compliance with any weekly PCR Covid-19 testing requirement; and it is further DECLARED that Respondent The City of New York’s denial of Petitioner Patrick Agugliaro’s appeal of The New York City Police Department’s denial of his request for a reasonable accommodation and exemption from the Covid-19 vaccine requirement with weekly Covid-19 testing is arbitrary and capricious and that such denial of the appeal be annulled and reversed; and it is further ORDERED that the court permanently enjoins Respondent The City of New York from placing Petitioner Patrick Agugliaro on Leave Without Pay, from terminating Petitioner from his employment as an employee of the New York City Police Department and from taking any adverse employment action against Petitioner for his refusal to get vaccinated against Covid-19 on the ground that getting vaccinated would violate his sincerely held religious beliefs; and it is further ORDERED that the court denies as moot the portions of the Verified Petition seeking a temporary restraining order and preliminary injunction as the court previously granted them in its decision and order on the order to show cause (NYSCEF Doc. No. 32) based on a Stipulation between the parties; and it is further ORDERED that the court denies the remainder of the Verified Petition and dismisses it against Respondents Eric Adams and Ashwin Vasan; and it is further ORDERED that the court directs the Clerk of the Court to enter judgment in favor of Petitioner Patrick Agugliaro’s as against Respondent The City of New York, only, without costs to any party; and it is further ORDERED that the court directs the Clerk of the Court to enter judgment in favor of Respondents Eric Adams and Ashwin Vasan as against Petitioner Patrick Agugliaro, without costs to any party. This constitutes the decision and order of the court. CHECK ONE: X CASE DISPOSED NON-FINAL DISPOSITION GRANTED DENIED X GRANTED IN PART OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE Dated: February 14, 2023
