Nieves v. New York City Police Dept.

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Nieves v New York City Police Dept. 2024 NY Slip Op 33476(U) September 30, 2024 Supreme Court, Kings County Docket Number: Index No. 504639/2024 Judge: Gina Abadi Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication.

FILED: KINGS COUNTY CLERK 10/01/2024 INDEX NO. 504639/2024 NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 10/02/2024

At an IAS Term, City Part 7 of the Supreme Court of the State of New York, held in and for the County -of Kings. at the Courthouse thereof at 360 Adams St .• Brooklyn; Ne\Y York, on the 30 th day ofSeptember, 2024.

PRES ENT: HON. GINA ABADI, J.S.C.

JOHANNA NIEVES, Plaintiff; TndcxNo.: 504639/2024 -against- Motion Seq: l

THENEW YORKCITY POLICEDEPARTMENT, DECISION, ORDER, AND THE CITY OF NE\V YORK, AND-JUDGMENT

Defendants.

Recitation. as requited by CPLR § 22l9(a)_; of thepapei"s considered in the review of this motion:

NYSCEF Ni1111bered

Notice of Motion/Cross Motion/Order to Show Cause and Affidavits (Affirmations) Airnexed ... , ...........•........... , .. . 7----:- 10 Opposing Affidavits {Affirmations) ............ ; ..... _.. , ........ . 15 - 17 Reply Affidavits {Affirmations) ...... , ............ , ........... , . 18-20 .Other,._-... -- ............. .- .....--._ . -· . -- .. .- ...•.•.. -: ...... -. . ·- .. ,- .

Upon the foregoing cited papers and after oral argument, defendants New York City

Police Department (NYPD) and City of New York (City and, collectively with NYPD,

defendants), jointly move, pre-answer, for mi. order, pur;maii.t to CPLR §§ 321l(a) (5)

and (7), disi11issing the entirety of the verified complaint dated Ja11uary29, 2024 (Verified

Complaintor VC), of plaintiff Johanna Nieves {plaintifi),

FILED: KINGS COUNTY CLERK 10/01/2024 INDEX NO. 504639/2024 NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 10/02/2024

The Court has considered plaintiffs remaining cont ntions and found them either

unavailing or moot in light of its determination.

Conclusion

Accordingly, it is

ORDERED that defendants' pre-answer motion for an order, pursuant to

CPLR 3211 §§ (a) (7) and (5) , dismissing the Verified Complaint is granted, and the

Verified Complaint is dismissed in its entirety with prejudice and without costs or

disbursements· and it is forther

ORDERED that the Corporation Counsel is directed to electronically serve a copy

of this Decision, Order, and Judgment on plaintiff's counsel and to electronically file an

affidavit of service thereof with the Kings County Clerk.

The foregoing constitutes the Decision, Order, and Judgment of this Court.

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Footnotes

[1] of 7 [* 1] Background Plaintiff ,vas a police ot1lcer with the NYPD from July 8, 2008 to November 21, 2021 (VC, ,r~ l. 22. 86), 1 As the result ofthe COVID-19 pandemic, on October 20, 2021, the Comrnissii.1r1er of the :Ne,v York City Depattment of Health and M.ental Hygiene issued an order mandating all city employees; including those at the NYPD, provide proof of at least nne dose of a COVID-19 vaccine by October 29, 202 l (the vaccine mandate) (NYSCEFDoc No. 3), The vaccine mandate {in § 8 thereot)permitted employees to apply for a reasotiable accornmodatio11 to be exempt from vaccination. Plaintiff: a practicing Christian. applied on Octoher 21, 202 l for a religious accommodation to be exempt from the· vaccine mandate (\IC, il 14}. Three days later, on October 24, 2021, ''[p]laintiff received a call from [a] Sgt. Acevedo from the EEO Reasonable Accommodation Unit asking[,] 'Why she [plaintift1 didn't want to receive the [COVID] vaccine?' Sgt Acevedo did not mention anything about accommodating [p]lai11tiffs religious beliefs or any reasonable accommodations that could he offered to [her]" (VC, ·~ 13). Sometime thereaHer, "[p]laintiff was told that [n]o [a]ccornmodations would be given" (VC, ,r I). Plaintiff further alleges that she "told the NYPD that she was pn:;pared to accept nume:rous accommodations. so long as she could keep [her] job; including maskingand participating in weekly testing," hut "[ a]t nq point did any rneml:ier () f the NYPD c11gage [her] in a cooperati vc dink> gue" ( VC, iii( 16-1 7). On Novelilher 28, 1 See al~·o plaintiO"s Rea~onal~le Accmnrnodation R,equest for Re)igiqus Practices or Observances, dated Oc.tober 2J, 2021 (NYSCEF Doc No., 4). . . . . . . 2

[2] of 7 [* 2] 2021, "[p]laii1tiff was [either] forced to resign" or "was forced intQ retirement" "because. she did notreceive the [COVID}l9 vaccination'' (VC, 1113, 22, and 86). On February I 5, 2024, plaintiff commenced this action against the NYPD and City asserting five causes of action under the New York City Human Rights Lmv (Administrative Cock s 8-107. et seq.} (the City HRL): (1) religious discrimination; (2) refusal to engage in the cooperative dialogue.: (3) failure to accommodate plaintiff's religious needs; (4) an award of punitive damages; and(5) an award of attorney's fees (first through fifth causes of action, respectively). In lieµ of an answer; defendants served the aforementioned motion to dismiss. The Court heard oral argument on August l 4, 2024 and reserved decision. The well-established standard of review on a pre-answer motion to dismiss has been omitted frolh this Decision, Order, and Judgment in the interestofbrevity. Discussion Plaintiff's claims as against the NYPD must be dismissed because it is not an entity amenable to being sued under the NewYork City Charter. ,\~ee NYC Charter, Ch. 17, § 396; Metwallyv CityofNY,215 AD3d 820, 823 (2dDept2023); Brownv City c?fNY, 192 AD3d 963,965 (2dJ)ept 2021), lv denied38 NY3d 902 (2022). Plaintiff's claims asagainstthe City should have been brought as a CPLRarticle 78 proceeding, insofar as she is challenging the denial of her reasonable acconmiodation request~ and as. such, her claims as agait1st the City are now time-barred. "It is well established that determinations which ate mttde within the jurisdiction of the [administrµtiv~] otlicial or body cqncerned, stand unless they are avoided by .adirectattack 3 ··---···········---

[3] of 7 [* 3] where thein firmity is alleged to be that the action has been arbitrary or capricious." Matter ofFoy v Schechter, l NY2d 604,612 (1956). Such "direct attacl('takes the fonn of a CPLR tirticle 78 proceeding which is to be commenced within four months ofthe 9haUenged act, pursuant to CPLR § 217. See e.g. Arfatter pfA1etropolitan Museton Hfa·toric Dist. Coa(ition v De 1vfdntebello, 20 AD3 d 28, 3 6 (lst Dept 2005). It is undisputed that plaintiff failed to commence a CPLR article 78 proceeding in connection with the NYPD's denial of her religious exerii.ption/actommodation request. Although plaintiff frames this, action as a religious discrimination lawsuit under the City HRL, the crux of her Verified Complaint is a challenge to the administrative denial of her request for a religious exemption/accommodation from the COVID-19 vaccination. As the true nature of the Verified Complaint; stripped of all artifice, squarely fits the parameters of a CPLR article 78 proceeding, plaintiff was required to commehce it "within four monthsof the act giving rise to the litigation." To-wn of Southampton v County ofSujJolk,

[98] AD3d l03J, 1034 (2d Dept 2012): Goolsby v City ofNY, S:J Misc 3d 445, 453-455 (Sup . . Ct, NY County 2024); Hunold v City of NY, 2024 NY Slip Op 5l241(U) (Sup Ct, NY County 2024); Almodovar v Ciiy ofNY, 82 Misc 3d 1235(A), 2024 NY Slip Op50475(U) (Sup Ct, NY County 2024), amended on rearg 83 Misc 3d l 27l(A), 2024 NY Slip Op 5l074(U}(Sup Ct, NY County 2024); Farah v City of NY, 83 Misc 3d 12S2(A), 2024 NY SlijJ Op 5096l(U) (Sup Ct, Kings County 2024); Sekulski v City of NY; 79 Misc- 3d 1240(A), 2023 NY Slip Op SQ839(U) {Sup Ct,. Kings County 2023), 2 2 Plqintil'rs reliance on ('/1inchiltu v New YorkCity Police Dt;pt, 2024 WL 3400526 (SD NY 2024), is unavaiiing (fqotnote .continued) 4 4 of 7 [* 4] Because plaintiff here first became aware of the denial of her religious exemption/accommodati on request on or before November 28, 2021, she should have cotnmencedthis action by Match 28, 2022. lnasmuch as she commenced this action much later on February 15, 2024, her Vetified Complaint must be dismissed in its entfrety as untimely, See GPLR §§ 217(1) and 321 l(a)(S); see also Sloi1inski v City ofNY, 173 AD3d . . . 801, 802 (2d Dept 2019); Dolce-Richard v NeH· York City .Health & Hasps: Corp;,

[149] AD3d9()J, 905 (2d Dept 2017); Town ofSoutlwmpton, 98 AD3d at 1035; In any event, each of plaintiff's five causes of actio11 is subject to dismissal for failure to $fate a cause of action, pursuant to CPLR § 3211 (a)(7). Plaintiffs first and third· causes bf action for religious discrimination; as.grounded on the failure to accommodate theory, are inadequately pleaded. In particular, she failed to plead that the City could, in fact, accommodate her, a uniformed NYPD sergeant, \vithout suffering an undue hardship in light ofhet work duties, p,irtitularly \Vhere (as was the instance at the time) the vaccine mandate was a condition .of employment for the frmi.tline workers, such· as the uni formed police officers with the NYPD. 3 See Hunold; 2024 NY Slip Op 51241(1J);. Aln10dovar, bt!cause it is 110t bindingori this Court. See Ciix i, Mii..nJ.i'i!fl Corp., 290 AD2d 206,207 ( I st Dept2002) ("Federal case Iiiw is at be,st pe rsiias i ve in· the absence o fState authority... >'·), lv dismissed 9 8 NY2d 72 8 ·(2002). 3 .See We T/uJ Patriois USA, .Im:. v fludml. 17 F4th 266, 294 (2d Cir 2021), dadfied 17 F4!h 368 (2d Cir 2021 ), stay pcnding uppeul de11ied 142 S Ct 734 (2021); Beir.:kert v New York Cit)' Dept of£d11c., 2023 WL 6214236; *4 (ED NY 2023),appeciljlled(2d·Cir2023 ); Marte,· Moi11ufiore ,\led.Ctr., 2022 WL 7059i82, *5{SDNY 2022); BMecker v New Yoi·k Depl r!f"Ed1ii•.,SS5 F Supp3d 299, 314~3 !S(ED NY 2022);. Afari..:iuno ,. De Blasio, 589 F Supp 3d 423, 431~43J(SD NY2022), 1ippealdis1i1is.1'ed as 1ilpot 2023 WL 34771 !9(2d Cir 2023), cert denied 144 S Ct286 (2023); Gad and v New York C'ity Fire Dept., 574 F·Supp 3d 120, 129 (EDNY 2021 ); Alalfer of'Pohce Benero!entA~:rn.of Ci1y ii/ A'Y; Inc. ,; City of NY,215 AD3d 463 (1st Dept 2,023), Iv de11ied40 NY3d 906 (2023); Matier r!f Pohce /3enevqlei7t A.1·s11- l!/Ci1yofNf, !iie: v De Blcisio, Index No. 85229/'"J. l, Decision,& Order, dated February 16; 2022 (Sup Ct, Richmo1id County, Co ion, J.), appe.als 1dthdrm1'11 Docket Nos. 2022~02225 and 2022-02238 (2d Dept, Nov, 23, 2022). · · 5 5 of 7 [* 5] 82 Misc 3d 1235(A), 2024 NY Slip Op 50475(U): Farqh, 83 Misc 3d 1252(A), 2024 NY Slip OjJ 50961 (U); Benoit v City of1\TY, 2024 \VL 218 8850 (Sup Ct, Kings County 2024 ); Chun v City of NY, 2024 NY Slip Op 30962(U) (Sup Ct, Kings County 2024); Curr id v City of NY, 2024 NY Slip Op 30222(U) (Sup Ct, Kings County 2024). Plaintitl"s second cause of action, as predicated on the City's alleged refusal to engage in the cooperative dialogue, is likewise insufficiently pleaded. She has not alleged, beyond bare legal conclusions, that the City's process for resolving plaintiff's request fell short ofthe requirements of the City HRLregarding cooperative dial()gue. To the contrary, the City's process was repeatedly found to have been rational by the First Judicial Departrnent. Under her particular citcuinstances, plaintiff has 11ot alleged facts showing that the City HRL required "a more robust or individualized dialogue than the process [she] received.' 1 lvfatter of }vfarsteller v City ofNY, 217 AD3d 543, 545 (1st Dept 2023), Iv dismissed & denied 41 NY3d 960 (2024). 4 Plaintiff's fourth and fiflh Gauses ofaction for punitive dmnages and attorney's fees,_ tespectively, nitty ncit he 1naintaii1ed as sepafMe causes of actibn. See Pergament v Government E111pl. In!)'. Co., 225 AD3d 799, 801 (2d Dept 2024); la Porta v Alacra, Inc., 142 AD3d 851, 853 ( I st Dept 2016). ~ See a!:l'O Malter i./( Lyndh i• Board qf Educ.. I?( Ci/.v .~clwol DMt. 11( City qj' N l', 221 .A 03d 456 (I st Dept 1023 ), II' de11il.!d 2024 NY SI ip Op 74666 ( Cf App 2024 ); Matier. of leb01 l'ltz v Board <~(Educ. c!fCiiySc/iocj/ Dl:1·t. C!f' City ,i/ · NY. 220 A 03 d 5 37 ( ! st Dept 2023 ), .Iv den led 41 NYJd 9 87 (2024); Mtllter tl{ J-fogiie v Boai·dcd:Educ. t/{Citj• School Di.)·f. q(City ofllf, 220 AD3d 4 J.<,.(!stDept202J), fl, deni&d2Q24 NY Slip Op 74661 (Ct App2024); Currid, 2024 'NY Slip Op 30212(U);. A/utter pf Quagl iwa,. 202:3 WL 85237 .1 8 (Sup Ct; NV County 2023 ); Malle!' ofHuiiolq v City qf NV, 2023 NY SI lp Op 33508(U) (Slip Ct, NY Cmmty 2023 ); ;\.fotteJ• ti/ Bath v Fire Dept (if City of ,\IF, ;2023 NY 81 ip Op 3 I 855(U) (Sup Ct, NY County 202.'3) .. 6 6 of 7 [* 6]