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 hereby ORDERED that the Article 78 Petition is denied. Factual and Procedural Background Petitioner is a New York City Police Officer who applied for a religious exemption to the New York City Department of Health and Mental Hygiene’s October 20, 2021, order requiring all New York City employees to receive vaccination against COVID-19 by October 28, 2021 (hereinafter the “Vaccine Mandate”). On October 22, 2021, Petitioner filed his request, asserting that he could not receive the COVID-19 vaccine because of all the available COVID-19 vaccinations were developed with the use of aborted fetal cells. Petitioner stated that taking any of the vaccines would go against his sincerely held religious beliefs as a Christian. On February 15, 2022, Respondents denied the Petitioner’s request. The reasons listed on the Petitioner’s denial indicated that the Respondents found that the Petitioner’s “objection was personal, political, or philosophical,” there was “insufficient or missing religious documentation,” and the Petitioner demonstrated no “history of vaccination/medicine refusal.” These were three (3) options selected out of a possible eight (8) listed reasons on the denial form. The Petitioner appealed his denial to the City of New York Reasonable Accommodation Appeals Panel. On October 26, 2022, the Panel upheld the denial of Petitioner’s request. In its denial the Panel stated: The decision classification for your appeal is as follows: Upon review of the appeal record under applicable law, the majority of the Panel affirms the agency’s determination and reasoning that the record does not support a religious reasonable accommodation that exempts the employee from the vaccine mandate. Following the Panel’s decision, the Petitioner was never placed on leave without pay, nor was he terminated from his employment with Respondents. Petitioner filed this action on January 3, 2023. On March 30, 2023, Respondents cross-moved to dismiss the Petition, asserting, inter alia, that the February 2023 amendment to the Vaccine Mandate, removing the requirement that unvaccinated City workers be excluded from their places of work, rendered the petition moot. On May 5, 2023, Respondents filed an Answer. On June 1, 2023, this Court denied Respondents’ cross-motion, and heard oral arguments on the Petition. Discussion The Court does not find that the NYPD and City of New York acted in an arbitrary and capricious manner, or abused their discretion, in their denial of Petitioner’s request for a reasonable accommodation from the Vaccine Mandate. The record before the Court demonstrates that Petitioner was notified that his request was denied and was given reasoning displaying an individualized analysis in the initial February 15, 2022, letter sent by the NYPD to Petitioner. See Baratta v. NYPD, (Sup Ct, Richmond County 2022, index No. 85223/2022); Compare Curatolo v. NYC Fire Dept. (Sup Ct, Richmond County 2022, index No. 85219/2022). Further, the Petitioner has failed to establish that the City’s process for providing the opportunity for and assessing requests for reasonable accommodations from the 2021 Vaccine Mandate were done in violation of the New York City Human Rights Law (NYCHRL). See, CPLR 7803(3); NYC Admin. Code 8-107(28)(e). In the past, this Court ruled that these acts alone do not constitute the required cooperative dialogue under New York’s human rights laws. See Baratta v. NYPD (Sup Ct, Richmond County 2022, index No. 85223/2022). However, on June 20, 2023, the Appellate Division First Department ruled in Marsteller v. City of New York that in publicly offering information on its process for reviewing accommodation requests and informing employees on how to submit applications and appeal denials, the Respondents were compliant under the requirements of the NYCHRL. See Marsteller v. City of New York, 217 A.D.3d 543 (Id Dep’t 2023). In the absence of a ruling on this issue from the Appellate Division Second Department, this Court is obligated by stare decisis to abide by the First Department’s ruling. See Mountain View Coach Lines v. Storms, 102 A.D.2d 663, 664 (2d Dep’t 1984); Maple Medical, LLP v. Scott, 191 A.D.3d 81 (2d Dep’t 2020). This Court also finds that the Petitioner’s right to freely exercise his religious beliefs under the New York State Constitution was not violated. As articulated by the New York County Supreme Court in DeLetto v. Adams, vaccine mandates imposed on City employees have routinely been upheld in courts throughout the state, and “there is no basis to find that the vaccine mandate somehow violates petitioner’s constitutional rights and, specifically, the free exercise clause.” DeLetto v. Adams, 2022 NYLJ LEXIS 1306 (Sup. Ct., NY County 2022); See also Broecker v. New York City Dept. of Educ., 585 F.Supp.3d 299 (E.D.N.Y. 2022); Garland v. New York City Fire Dept., 574 F Supp 3d 120 (E.D.N.Y. 2021). As such, the Petition is denied. This constitutes the Decision and Order of the Court. Date: August 21, 2023
