The following e-filed documents, listed by NYSCEF document number (Motion 002) 14, 15, 16, 17, 18, 19, 20, 22, 23, 25 were read on this motion to/for DISMISSAL. DECISION + ORDER ON MOTION In this action, Defendants the City of New York (the “City”), the New York City Police Department (the “NYPD”), and Michael Melocowsky (“Melocowsky”) (collectively identified as “Defendants”) move, pursuant to CPLR §3211(a)(7), to dismiss Plaintiff Jason Almodovar’s (“Plaintiff”) complaint. Plaintiff opposes the motion. For the reasons stated herein, Defendants’ motion is granted. BACKGROUND Plaintiff was a police officer for the NYPD for sixteen and a half years (NYSCEF Doc No. 1 14, verified complaint).1 During that time, he was never professionally “penalized and/or suspended” (id. 16). He was also never asked to receive a vaccine as a condition of his employment (id. 15). In October 2021, as a result of the COVID-19 pandemic, the Commissioner of Health and Mental Hygiene promulgated an order directing City employees to show proof of COVID-19 vaccination or apply for a reasonable accommodation to be exempt therefrom (the “Vaccine Mandate”) (see Order of the Commissioner of Health and Mental Hygiene to Require COVID-19 Vaccination for City Employees and Certain City Contractors [October 20, 2021], available at https://www.nyc.gov/assets/doh/downloads/pdf/covid/covid-19-vaccination-requirement-city-employees.pdf [last accessed April 15, 2024]). Sometime in 2021 or 2022, Plaintiff applied for a reasonable accommodation from the COVID-19 vaccine mandate (NYSCEF Doc No. 1 17).2 Plaintiff is a “devout Christian” who believes that he is “created in God’s image” (NYSCEF Doc No. 1, verified complaint 20; NYSCEF Doc No. 19, Wagner affirmation 3). Plaintiff’s request was denied because of “undue hardship” (NYSCEF Doc No. 1, verified complaint 24). Plaintiff alleges that this denial was “in a discriminatory fashion,” “predetermined…because of his faith,” while “many other workers were routinely allowed to work wearing masks or taking weekly tests,” but that these options “were never offered to [him]” (id.
17, 25, 27-28). Plaintiff further alleges that he “told NYPD he was prepared to accept numerous accommodations, so long as he could keep his job, including masking and participating in weekly testing,” but the NYPD failed to engage him in a cooperative dialogue (id. 26, 29.) Finally, Plaintiff asserts that the NYPD “constructively terminated” him on June 3, 3022 (id. 69). Plaintiff filed a notice of claim on August 15, 2022, and commenced this action on January 1, 2023, by filing a summons and complaint. Defendants now move, pursuant to CPLR §3211(a)(7), to dismiss the complaint for failure to state a cause of action. Defendants contend that (1) the NYPD is not a suable entity, (2) the complaint fails to allege any actionable personal involvement by Melocowsky, (3) the action is time-barred because, to the extent Plaintiff is challenging the NYPD’s decision to deny his reasonable accommodation request, the action should have been brought under Article 78, (4) Plaintiff cannot bring a claim for employment discrimination under the New York State Constitution, (5) Plaintiff does not adequately allege the elements of a breach of contract claim, and (6) Plaintiff fails to allege a bona fide religious belief that would entitle him to an accommodation from the City’s vaccination requirements. Plaintiff opposes the motion and contends that: (1) Melocowsky should not be dismissed as a defendant in this action; (2) Plaintiff sufficiently alleged a sincerely held religious belief; (3) Defendants do not dispute that they failed to engage in a cooperative dialogue; (4) Defendants discriminated against Plaintiff by failing to accommodate him; (5) Plaintiff may seek declaratory judgment for his and the public’s benefit; (6) Plaintiff has stated a cause of action for violation of the Free Exercise Clause; (7) the New York State Constitution does provide a private right of action; (8) Plaintiff’s contract claim is not vague or conclusory; (9) Plaintiff has sufficiently alleged Melocowsky is liable for aiding and abetting; (10) Plaintiff’s claims for attorney’s fees should not be dismissed; and (11) the NYPD is a suable entity. In reply, Defendants reiterate their moving arguments and further assert that Plaintiff abandoned his claim that Melocowsky is individually liable under the New York State Human Rights Law (“NYSHRL”) and Plaintiff’s reasonable accommodation claim must be brought under Article 78 and is time-barred. After the motion was fully submitted, Defendants submitted a letter directing the court to the decision in Matter of Marstellar v. City of New York, 217 AD3d 543, issued on June 20, 2023, which held that the City’s process for resolving COVID-19 vaccine accommodation requests was rational and not a violation of the New York City Human Rights Law (“NYCHRL”). Plaintiff contends that this case is distinguishable from Mastellar because Plaintiff has not brought an Article 78 proceeding. Defendants disagree and contend that Marstellar addresses the very policies and decisions that Plaintiff is challenging in this action. DISCUSSION When considering a motion to dismiss under CPLR §3211(a)(7), a court must accept the factual allegations of the pleadings as true, affording the non-moving party the benefit of every possible favorable inference and determining “only whether the facts as alleged fit within any cognizable legal theory” (see D.K. Prop., Inc. v. Natl. Union Fire Ins. Co. of Pittsburgh, 168 AD3d 505 [1st Dept 2019]; Weil Gotshal & Manges LLP v. Fashion Boutique of Short Hills, Inc., 10 AD3d 267 [1st Dept 2004]). Notwithstanding, “bare legal conclusions and factual claims, which are either inherently incredible or flatly contradicted by documentary evidence are not presumed to be true on a motion to dismiss” (Vig v. New York Hairspray Co., 67 AD3d 140, 145 [1st Dept 2009]). A motion to dismiss should therefore be granted unless “from [the pleading's] four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law” (McGill v. Parker, 179 AD2d 98, 105 [1st Dept 1992], quoting [Guggenheimer v. Ginzburg, 43 NY2d 268, 275 [1977]). As an initial matter, this action must be dismissed against the NYPD because City agencies are not legally cognizable entities and therefore are not proper parties. Pursuant to Chapter 17, Section 396 of the New York City Charter, “[a]ll actions and proceedings for the recovery of penalties for the violation of any law shall be brought in the name of the City of New York and not in that of any agency, except where otherwise provided by law” (NY City Charter §396). There is no exception for the NYPD (McCullough v. City of N.Y., 2022 NY Slip Op 33098[U], *7 [Sup Ct, NY County 2022]). Therefore, the NYPD is not a proper party to the action, and the motion to dismiss the complaint as against it is granted. Next, Plaintiff’s complaint should have been brought as an Article 78 proceeding, insofar as he is challenging the denial of his reasonable accommodation request, and as such, is now time-barred. “Article 78, as established by The New York State Legislature, is the vehicle through which administrative determinations may be judicially reviewed” (Nespoli v. Bd. of Trustees of the New York City Employees’ Retirement System, 2021 NY Slip Op 31603[U], *2 [Sup Ct, NY County 2017]). The substance of a claim, rather than its form, determines the applicable law (Foster v. City of New York, 157 AD2d 516, 518 [1st Dept 1990]. “If the gravamen of a claim falls within the scope of Article 78, that claim must be brought as an Article 78 proceeding even if it was commenced under some other legal theory” (Nespoli v. Bd. of Trustees of the New York City Employees’ Retirement System, 2021 NY Slip Op 31603[U], *2 [Sup Ct, NY County 2017]; see Duffy v. City of New York, 452317/2020, 2021 WL 4076944, at *1 [Sup Ct, NY County 2021] ["while plaintiff's claims are brought as a breach of an employment agreement and tortious interference…the gravamen of plaintiff's complaint seeks to review the HHC's administrative determination to terminate plaintiff's employment…[and] should have been brought as an article 78 proceeding”]; Todras v. City of New York, 11 AD3d 383, 384 [1st Dept 2004]["Inasmuch as plaintiff's claims are fundamentally premised upon the contention that the administrative determinations terminating his employment and denying him line of duty injury status were wrongful, they should have been brought in a proceeding pursuant to CPLR article 78"]; Foster v. City of New York, 157 AD2d 516, 518 [1st Dept 1990] ["the gravamen of plaintiff's claim that he was fired by the city…presents the classic formulation of an article 78 proceeding"]). Here, the gravamen of Plaintiff’s complaint is a challenge the NYPD’s decision denying his request for reasonable accommodation. As set forth in the preliminary statement to Plaintiff’s complaint, “Plaintiff is challenging the NYPD’s denial of a Religious Accommodation request” (NYSCEF Doc No. 1, verified complaint
