DECISION AND ORDER Upon the papers filed in support of the application and the papers filed in opposition thereto, and after hearing oral arguments, for the reasons set forth on the record it is ORDERED that Respondent’s cross-motion to dismiss the petition is hereby denied; and it is further ORDERED that Respondents must file an answer to the petition on or before March 27, 2023; and it is further ORDERED that this Court will hear oral arguments on the petition On Friday, March 31, 2023. This Court finds that the February 2023 amendment to the New York City Department of Health and Hygiene’s October 2021 vaccination order does not render this petition moot. The Respondent’s position is that amended order no longer requires that the Petitioner and similarly situated people to show proof of COVID-19 vaccination in order to go to work. The Respondent argues that in light of the amendment, and because the Petitioner has returned work, the Petition is moot. However, what the amendment to the order does not address is the question of whether or not the Respondent’s denial of the Petitioner’s request for a religious exemption from the vaccine mandate was done in error, nor does it address the issues of backpay, benefits, vacation and sick time, and attorney’s fee. For these reasons, this Court does not find that the Petition is moot. See Agugliaro v. Eric Adams, et. al., Index No. 156866/2022 decision dated 2/14/2023; Compare Kirkland v. Annucci, 150 A.D.3d 736 (2d Dep’t 2017) (wherein the Second Department held that because the Petitioner had received the ultimate reward they sought in their Petition, the Supreme Court properly determined the matter was moot). Further, this Court finds that the Petition is not time-barred. The Respondent’s argue that the four-month statute of limitations under CPLR §217(1) began to run on November 8, 2021, the date the Petitioner was put on leave without pay (hereinafter “LWOP”). Under this theory, the Petitioner would have had until March 8, 2022 to file his petition. However, this Petition challenges the denial of the Petitioner’s request for a religious exemption, not his initial placement on LWOP. At that time the Petitioner was placed on LWOP, there were still administrative steps that the Petitioner could take, and did take, to obtain the relief he sought. Specifically, the Petitioner was able to appeal his denial to the FDNY directly, and then further to the City of New York Reasonable Accommodation Appeals Panel. This Court finds that the statute of limitations began to run from the Citywide Panel’s denial on October 24, 2022, when the injury inflicted upon the Petitioner could no longer be ameliorated by further available administrative steps. See Fiondella v. Town of E. Hampton Architectural Review Bd., 212 A.D.3d 811, 811 (2d Dep’t 2023); Matter of Best Payphones, Inc. v. Department of Info. Tech. & Telecom. of City of N.Y.; 5 N.Y.3d 30, 34 (2005). Therefore, this Court finds that the Petition, being filed on, February 12, 2023, was timely. This constitutes the Decision and Order of the Court. Dated: March 22, 2023
