DECISION & ORDER FOR A JUDGMENT PURSUANT TO ARTICLE 78 OF THE CPLR Upon the papers filed in support of the application and the papers filed in opposition thereto, and after hearing oral arguments, it is ORDERED that the Article 78 Petition is hereby granted; ORDERED that the Petitioner is entitled to a medical exemption from the vaccine mandate; and ORDERED that the Petitioner shall be awarded counsel fees, costs and expenses. Petitioner shall submit a proposed Order regarding, fees, costs and expenses consistent with this decision. BACKGROUND & PROCEDURAL HISTORY Petitioner, Christie Ferrera, (hereinafter “the Petitioner”), is a special education teacher with the Respondent, New York City Department of Education (hereinafter “DOE”). In March 2020, the DOE suspended in-person instructions in their school facilities amidst the COVID-19 pandemic and began remote instruction. The Department of Health and Mental Hygiene issued an Order on August 24, 2021 (hereinafter “the vaccine mandate”) which required all DOE employees to receive vaccination against COVID-19 no later than September 27, 2021. The order was later amended, requiring the proof to be provided no later than October 1, 2021. Pursuant to an Arbitration Award between the United Federation of Teachers and the DOE (hereinafter “the arbitration agreement”), DOE members were permitted to submit requests for reasonable accommodations through an online portal called the Self-Service Online Leave Application System (hereinafter “SOLAS”). On September 9, 2021, the Petitioner submitted a request for a medical exemption to the vaccine mandate based upon various medical conditions that prohibited her from receiving the available vaccinations against COVID-19, as well as letters from her doctor that indicated the Petitioner had a “positive immunity to COVID virus.” On September 23, 2021, the DOE granted the Petitioner a medical exemption, which ran from September 28, 2021, through June 30, 2022. At that time the Petitioner was informed, “[i]f your condition medically necessitates a longer deferral of time before vaccination, you will have the opportunity to apply with relevant documentation for an extension of the medical exemption.” On August 17, 2022, the DOE extended the Petitioner’s exemption through December 31, 2022. On December 5, 2022, the DOE extended the Petitioner’s exemption again through January 27, 2023. At that time, the Petitioner was informed: [a]s you have previously been advised, if you wish to apply for an exemption to the vaccine mandate after that date, you will be required to submit a new application in January with updated medical information. Please do not submit an application at this time. You will be advised on a timeline for such applications but anticipate it will be after January 3, 2023. The Petitioner was then informed on January 10, 2023, that her exemption would end on January 27, 2023, and that she was required to submit a new application via SOLAS. On January 18, 2023, the Petitioner submitted her new application for a medical exemption (hereinafter “2023 application”), based on the same reasoning as her initial application, with the addition of two new letters from medical professionals. On January 24, 2023, the DOE denied the Petitioner’s request for a medical exemption. The DOE informed the Petitioner that her request was denied because it was “not medically warranted” and because “per CDC guidelines [the Petitioner's] conditions do not qualify for Covid 19 vaccine exemption.” On January 25, 2023, the DOE emailed the Petitioner that her medical exemption had been extended until February 17, 2023. This action was commenced with the filing of a Petition pursuant to CPLR Article 78 on February 6, 2023. The Petitioner alleges that the denial of her request for a medical exemption was arbitrary and capricious. On February 10, 2023, the New York City Board of Health amended the vaccine mandate (hereinafter referred to as “the amendment”), removing the requirement that City employees that do not provide proof of vaccination against COVID-19 be excluded from their place of work. Oral arguments on this Petition were heard by this Court on March 24, 2023. ARTICLE 78 Mootness Our courts should only entertain a case “where there is no presently justiciable controversy.” Prashker v. United States Guarantee Co., 1 N.Y.2d 584, 592 (1956). “The doctrine of mootness is invoked where a change in circumstances prevents a court from rendering a decision that would effectively determine an actual controversy.” Matter of Dreikausen v. Zoning Bd. of Appeals of City of Long Beach, 98 N.Y.2d 165, 172, (2002). If the relief requested by a petitioner has already been obtained or is no longer available, a case is considered moot. See Matter of Police Benevolent Assn. of N. Y, Inc. v. State of New York, 161 A.D.3d 1430, 1431 (3d Dep’t 2018). However, where a judicial determination would carry immediate practical consequences for the parties, the controversy presented is not moot. See Saratoga County Chamber of Commerce v. Pataki, 100N.Y.2d 801, 812 (2003). Standard of Review Judicial review of the acts of an administrative agency under Article 78 is limited to questions expressly identified by statute (see CPLR §7803; Matter of Featherstone v. Franco, 95 NY2d 550, 554 [2000]). CPLR §7803 states: The only questions that may be raised in a proceeding under this article are: 1. whether the body or officer failed to perform a duty enjoined upon it by law; or 2. whether the body or officer proceeded, is proceeding or is about to proceed without or in excess of jurisdiction; or 3. whether a determination was made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion, including abuse of discretion as to the measure or mode of penalty or discipline imposed; or 4. whether a determination made as a result of a hearing held, and at which evidence was taken, pursuant to direction by law is, on the entire record, supported by substantial evidence. 5. A proceeding to review the final determination or order of the state review officer pursuant to subdivision three of section forty-four hundred four of the education law shall be brought pursuant to article four of this chapter and such subdivision; provided, however, that the provisions of this article shall not apply to any proceeding commenced on or after the effective date of this subdivision. Under CPLR Article 78, a Petitioner must establish that the agency determination or decision is so “lacking in reason for its promulgation that it is essentially arbitrary.” New York State Ass ‘n. of Counties v. Axelrod, 78 N.Y.2d 158, 166 (1991). The standard of review is “whether the regulation has a rational basis, and is not unreasonable, arbitrary, or capricious.” Matter of Consolation Nursing Home, Inc., v. Commr. Of New York State Dept. of Health, 85 N.Y.2d 326, 331-332 (1995). The reviewing court “must be certain that an agency has considered all the important aspects of the issue and articulated a satisfactory explanation for its action, including a rational connection between the facts found and the choice made.” O’Rourke v. City of NY, 64 Misc. 3d 1203 [A] (Sup. Ct. Kings County 2019). The Court “may not substitute its own judgment of the evidence…but should review the whole record to determine whether there exists a rational basis to support the findings upon which the…determination is predicated.” Purdy v. Kreisberg, 47 N.Y.2d 354, 358 (1979). “Public health agencies, in particular, are entitled to a high degree of judicial deference when acting in their area of their particular expertise.” C.F. v. NYC Dept. Of Health & Mental Hygiene, 191 A.D.3d 52, 69 (2d Dep’t. 2020). However, if the grounds relied upon by an agency are lacking a rational basis, the reviewing court cannot affirm an agency determination “substituting what it deems a more appropriate or proper basis.” Matter of Pell v. Board of Educ. of Union Free Sch. Dist. No. 1 of Towns of Scarsdale & Mamaroneck. Westchester County, 34 N.Y.2d 222, 231 (1974). In reviewing alleged arbitrary and capricious administrative determinations, a reviewing court’s function is limited to “whether the record contains sufficient evidence to support the rationality of the…determination.” Atlas Henrietta LLC v. Town of Henrietta Zoning Bd. Of Appeals, 46 Misc. 3d 325, 332 (Sup. Ct. 2013) aff’d, 120 A.D.3d 1606 (2014). Furthermore, “capricious action in a legal sense is established when an administrative agency on identical facts decides differently.” Italian Sons & Daughters, Inc. v. Common Council of Buffalo, 453 N.Y.S.2d 962 (4d Dep’t 1982). Reasonable Accommodation Process The Petitioner challenges the DOE’s denial of her request for a medical exemption to the vaccine mandate. The Petitioner submitted two relevant applications for a medical exemption, both because of various medical conditions that she suffers that prevent her from taking the available COVID-19 vaccinations. The Petitioner submitted documentation from her treating physician in support of both applications. In support of her 2023 application, the Petitioner submitted an additional letter from a treating physician, specifically an Infectious Disease Specialist, further explaining the Petitioner’s status in receiving the COVID-19 vaccinations. The Petitioner’s first application was accepted, and subsequently extended three times, ultimately covering a period from September 28, 2021, through January 27, 2023. The Petitioner’s 2023 application was denied, with two reasons provided by the DOE. The first was that an exemption was “not medically warranted.” The second was that “per CDC guidelines [the Petitioner's] conditions do not qualify for Covid 19 vaccine exemption.” DECISION Mootness Initially, this Court finds that neither the Petitioner’s receipt of an extension of her medical exemption subsequent to her 2023 application’s denial, nor the New York City Board of Health’s amendment to the vaccine mandate on February 10, 2023, render this Petition moot. The Petitioner seeks a declaratory judgment that the denial of her 2023 application was affected by an error of law. As this Court has previously held in the cases of DeFonte and DePaola, the amendment does not address whether the subject determination made by the DOE was done in error. See DeFonte v. New York City Fire Dept, Index No. 85036/2023 decision dated March 22, 2023; DePaola v. New York City Fire Dept, Index No. 85265/2022 decision dated March 27, 2023. The DOE’s argument that the Petition is moot fails for this reason. Circumstances can change that may affect the Petitioner’s employment status. However, this Petitioner’s underlying medical conditions will not change. The Petitioner’s receipt of an extended medical exemption subsequent to her 2023 application’s denial does not obviate the fact that new circumstances may present themselves. In the future the NYC Board of Health may decide that City workers once again must provide proof of COVID-19 vaccination or be barred from entering the workplace. The Petitioner would then find herself at risk of being placed on leave without pay or possibly even terminated. The Petitioner should not face the potential of having to file a further action based on relief here that she argues she is entitled to. Further, as argued by the Petitioner, the amendment itself has not removed the requirement that city workers provide proof of COVID-19 vaccinations. The amendment has merely removed the section of the order requiring that those workers that do not provide such proof be excluded from their place of work. For these reasons, this Court does not find that that this petition is moot. Merits This Court further finds the denial of the Petitioner’s reasonable accommodation request was arbitrary and capricious because the reasons given for the denial were vague, conclusory, and the DOE made a different determination based on the same set of facts. See Finley v. The City of New York and FDNY, Index No. 717617/2022 decision dated October 27 2022 (wherein the Supreme Court, Queens County, found that a reasonable accommodation denial where “not a single item particular to petitioner is discussed” was irrational, arbitrary, and capricious); Schiefer v. Bd. of Educ. of the City of New York, et al, Index no. 155983/2022 decision dated October 4, 2022 (wherein the Supreme Court, New York County, held that the DOE’s assertion of an undue hardship, without any support or explanation given at the time of the decision, was arbitrary and capricious); Anderson v. Eric Adams, et. al, Index no. 156824/2022 decision dated October 20, 2022 (wherein the Supreme Court, New York County, found that the Respondent’s denial of a religious accommodation request was so devoid of reasoning, that the Court could not evaluate whether there was any rational basis behind Respondent’s decision). The first reason that the DOE gave for denying the Petitioner’s medical exemption was that it was “not medically warranted.” This Court finds this reasoning to be both vague and conclusory as it does not inform the Petitioner as to the reasoning behind the DOE’s decision. Nothing in this denial provides any evidence that the DOE specifically considered and evaluated this Petitioner’s request. As Judge Bluth articulated in Anderson “there is no indication that anybody even read [P]etitioner’s arguments.” Anderson v. Eric Adams, et. al., Index no. 156824/2022. Furthermore, the DOE has not submitted any medical evidence to support their assertion that the exemption is not “medically warranted.” The only medical evidence in the record before this Court are the letters submitted by the Petitioner from two different treating physicians, supporting her requests for a medical exemption. This Court also looks to the fact that the Petitioner’s exemption was presumably medically warranted from September 28, 2021, through January 27, 2023. The Petitioner submitted a new application for a medical exemption on January 18, 2023, in compliance with the DOE’s instructions. On January 24, 2023, her previously granted and currently active medical exemption was no longer deemed medically warranted, despite no change in her underlying medical conditions, and the Petitioner’s 2023 application was denied. Interestingly, on January 25, 2023, the exemption was seemingly medically warranted again, and the DOE extended the Petitioner’s still existing exemption into February of 2023. They did not, however, grant her January 18, 2023, application. It is clear in the record that the DOE made different determinations based on the same set of facts, thus rendering their decision arbitrary and capricious. This Court further agrees with the Petitioner that this denial by the DOE resembles the boiler plate denials this Court and other courts have seen presented in cases involving requests for reasonable accommodations to the vaccine mandate throughout New York City’s courts. These blanket denials have included allegations of “undue hardships” and “undue burdens” and have been found by this Court and other New York City courts to be lacking. See Finley v. The City of New York and FDNY, Index No. 717617/2022 decision dated 10/27/2022; Loiacono v. the Bd of Educ. of the City of New York, et al, Index no. 154875/2022 decision dated July 11, 2022; DePaola v. New York City Fire Dept, Index No. 85265/2022, decision dated March 27, 2023; Rivicci v. New York City Fire Dept., 2022 NY Slip Op 34070[U] (Sup Ct, Richmond County 2022, Index No. 85131/2022). Furthermore, assuming in arguendo that the DOE’s reasoning that Petitioner’s medical exemption was “not medically warranted” is found within their second reason for denying the exemption, this Court is equally unpersuaded. As such, this Court finds that the first reason given by the DOE in denying the Petitioner’s medical exemption request was arbitrary and capricious. This Court further finds that the second reason given by the DOE in denying the Petitioner’s request was arbitrary and capricious in that it was vague and conclusory, and a different determination based on the same set of facts. The DOE asserted in its denial that “as per CDC guidelines [Petitioner's] conditions do not qualify for Covid 19 vaccine exemption.” Importantly, the DOE did not identify in this denial what portion of the CDC guidelines changed, disqualifying this Petitioner’s conditions. This is assuming that the DOE’s decisions in initially granting and subsequently extending the Petitioner’s medical exemption, were all similarly guided by these CDC guidelines. As stated earlier, the record is void of any evidence that can clearly show this Court that the CDC guidelines in any way influenced the DOE’s decision making. The record also lacks evidence of how the guidelines changed so as to influence their decision to deny the Petitioner’s second application. Were this Court to assume that they did, the question would still remain as to what changed between January 24, 2023, and January 25, 2023, to warrant the DOE’s further extension of the Petitioner’s exemption, despite the apparent change in the CDC guidelines. Despite the deference afforded to city agencies regarding the interpretations of their own regulations, this Court’s role is to review these interpretations to ensure each of these decisions are reasonable and rational. See Finley v. The City of New York and FDNY, Index No. 717617/2022. The question that must be answered is whether or not the record shows that the DOE’s decision was supported by a rational basis. See Purdy v. Kreisberg, 47 N.Y.2d 354, 358 (1979) and Atlas Henrietta LLC v. Town of Henrietta Zoning Bd. Of Appeals, 46 Misc. 3d 325, 332 (Sup. Ct. 2013) aff’d, 120 A.D.3d 1606 (2014). In light of the lack of any provided specific explanation by the DOE to the Petitioner at the time of her denial, the DOE’s different determinations based on the same set of facts, and the subsequent extension of the Petitioner’s exemption one day after the denial, this Court finds that that decision was not. As the record contains insufficient evidence to support the DOE’s determination, the denial of the Petitioner’s medical exemption is hereby vacated. Finally, the Court is granting the Petitioner’s application for attorney’s fees. The Court finds that an award of attorney’s fees to the Petitioner is warranted under the circumstances of this case. See Auguste v. Wing, 269 A.D.2d 239 (1d Dep’t 2000); Graves v. Doar, 87 A.D.3d 744 (2d Dep’t 2011); Perez v. New York State Dept. of Labor, 259 A.D.2d 161 (3d Dep’t 1999). Accordingly, it is hereby: ORDERED that the DOE’s denial of the Petitioner’s request for a reasonable accommodation from the vaccine mandate was arbitrary and capricious; and it is hereby ORDERED that the Petition is granted in that the Petitioner is entitled to a medical exemption from the vaccine mandate; ORDERED that the Petitioner is granted counsel fees, costs, and expenses; and it is further ORDERED that the Petitioner is directed to submit a proposed order and judgment consistent with this decision on or before May 11, 2023. This constitutes the Decision and Order of the Court. Dated: May 4, 2023
