### Magee v Board of Educ. of the City Sch. Dist. of the City ofN.Y. 2024 NY Slip Op 30530(U) February 20, 2024 Supreme Court, New York County Docket Number: Index No. 156450/2022 Judge: Judy H. Kim 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.NYSCEF DOC. NO. 92 INDEX NO. 156450/2022 RECEIVED NYSCEF: 02/20/2024 

### SUPREME COURT OF THE STATE OF NEWYORK NEWYORK COUNTY PRESENT: HON. JUDY H. KIM Justice

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KEVIN MAGEE, Petitioner, PART
INDEX NO.
MOTION DATE 156450/2022 08/03/2022, 02/13/2023 04

- V - MOTION SEQ. NO.
__ 0_0_1_0_0_3
__ THE BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK, COMMUNITY SCHOOL DISTRICT 75 OF THE BOARD OF EDUCATION OF THE CITY OF NEW YORK, UNITED FEDERATION OF TEACHERS, Respondents.

---------------------------------------------------------------------------------X DECISION + ORDER ON MOTION

The following e-filed documents, listed by NYSCEF document number (Motion 001) 2, 23, 24, 25, 26, 27, 31, 32, 33, 34,35, 36,37,38,39,40,41,42,43,44,45,46,47,48,49,50,59, 77, 78, 79, 80,81,82, 83, 84 were read on this motion for ARTICLE 78 (BODY OR OFFICER) The following e-filed documents, listed by NYSCEF document number (Motion 003) 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75, 85 were read on this motion to AMEND CAPTION/PLEADINGS



### In this special proceeding, petitioner alleges that in February 2002, he began working as a teacherfor theNewYork City Department ofEducation ("DOE") (NYSCEF Doc. No. 1 [Petition at

## iFD- On August 24, 2021, the New York City Commissioner ofthe Department ofHealth and Mental Hygiene ("DOHMH") issued an order requiring all DOE employees to submit proofof their COVID-19 vaccinations by September 27, 2021 (the "DOHMH Order") (Id. atiJIO; see also NYSCEF Doc. No. 5). On September 20, 2021, petitioner applied for areligious exemption from the DOHMH Order (NYSCEF Doc. No. 1 [Petition atiJ13).

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On September 22, 2021, the DOE denied petitioner's request for a religious exemption (Id.). On December 3, 2021, petitioner appealed that denial (Id. at 

### ,Jl6). On March 28, 2022, petitioner was notified that the City ofNew York's Reasonable Accommodation Appeals Panel (the "Appeals Panel") denied his appeal and that his employment would be terminated ifhe did not submit proofofvaccination against COVID-19 by April 1, 2022 (Id. at 

### ,JI8; NYSCEF Doc. No. 13). Petitioner failed to do so and on April 11, 2022, the DOE notified petitioner that his employment was terminated, effective April 7, 2022 (NYSCEF Doc. Nos. 1 [Petition at 

### ,Jl9] and 14). On August 3, 2022, petitioner commenced this proceeding against the DOE, Community School District 75 ofthe Board ofEducation ofthe City ofNew York (collectively, the "City"), andhis union, the UnitedFederation ofTeachers, seeking an order: (i) declaring that the denial of his religious accommodation and subsequent termination were arbitrary and capricious; (ii) directing respondents to vacate petitioner's termination and declare him exempt from the DOHMH's Order; and (iii) awarding petitioner employment benefits from October 4, 2021 to present. On October 26, 2022, the City interposed an answer which, inter alia, asserted an affirmative defense that this proceeding is untimely under the applicable four-month statute of limitations. On February 13, 2023, petitionermoved to amend the petition to allege, as pertinenthere, that "[o]n or about February 6, 2023, the Citymodified the April 11, 2022 termination condition to give [petitioner] backhis position as a tenured teacher ifthe Petitioner agrees waives backpay and civil service rights in writing" (NYSCEF Doc. No. 70 [Proposed Am. Petition at 

### ,J21]). In connection with that motion, petitioner notes that on February 6, 2023, the City rescinded the

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COVID-19 vaccinemandate andpermittedthose DOEemployeeswho were terminatedfor failing to provide proof of vaccination against COVID-19 to apply for reinstatement upon certain conditions (NYSCEF Doc. No. 72) and argues that this change in policy "shows that neither the determination bythe [Appeals Panel] on March 28, 2022, nor the termination notice on April 11, 2022 was final and binding within the meaning of CPLR §217." The City opposes petitioner's motion to amend, arguing that the proposed amendments are futile since petitioner's claims stemming from the denial ofhis religious accommodation remain time-barred. 1 DISCUSSION The petition 1s dismissed as untimely. Pursuant to CPLR §217(1), an Article 78 "proceeding against a body or officer must be commenced within four months after the determinationto bereviewedbecomes final and bindinguponthe petitioner" (CPLR §217[1]). An agency action is final and binding upon the petitionerwhen the agency has reached "a definitive position on the issue that inflicts actual, concrete injury" and "the injury inflicted may not be prevented or significantly amelioratedbyfurther administrative action orby steps available to the complaining party" (Best Payphones, Inc. v Dept. of Info. Tech. & Telecom., 5 NY3d 30, 34 [2005] [internal quotations omitted]). "A determination generally becomes binding when the aggrievedparty is notified" ofthatdetermination (Johnson v The CityofNewYork, 2023 NY Slip Op 31967[U] [Sup Ct, NY County 2023] citing Musey v 425 E. 86 Apts. Corp., 154 AD3d 401, 404 [1st Dept 2017]).

1 On July 3, 2023, plaintiffe-filed aletterto this Courtrequesting permissionfor supplementalbriefing to address the applicability ofa recent decision ofthe United States Supreme Court, Groffv DeJoy, 600 US 447 (2023). The Court declines to grant this request. Groffclarifies an employer's burden in establishing that an accommodation of an employee's religious practice would impose an "undue hardship on the conduct ofthe employer's business" under Title VII ofthe Civil Rights Act of 1964 and has no bearing onthe grounds for the denial and dismissal ofthis special proceeding.

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### Here, the Appeals Panel'sMarch 28, 2022 denial ofpetitioner's religious accommodation constitutedafinal decisionthatinflictedan actual, concreteinjury (See~'DemerestvNew York CityPolice Dept., 2023 NY Slip Op 30232[U] [Sup Ct, NY County2023]; see also Mendez v Fire Dept. ofthe City ofNew York, 2023 NY Slip Op 31589[U] [Sup Ct, NY County2023]). Petitioner does not dispute thathe was notified ofthe denial ofhis appeal on March 28, 2022. Therefore, the four-month statute oflimitations began to run on that date and elapsed on July 28, 2022. Since petitioner commenced this special proceeding on August 3, 2022, his claims arising out ofthe denial ofhis religious exemption are untimely. Petitioner's contention that the limitations period for such claimsbeganto run on the date he was notified ofhis termination-i.e.,April 11, 2022- is without merit (See Musey v 425 E. 86 Apts. Corp., 154 AD3d 401, 404 [1st Dept 2017]). Accordingly, all claims stemming from the denial of petitioner's appeal for a religious accommodation are therefore dismissed. To the extent that the Petition may be read as also asserting a claim that petitioner's termination violated CPLR §7803(3), such a claim would be timely, insofar as this special proceeding was commenced within four months of petitioner's April 11, 2022 termination. However, this claim fails on its merits. CPLR 

### §7803(3) permits a court to review "whether a determination was ... an abuse of discretion, including abuse ofdiscretion as to the measure or mode ofpenalty or discipline imposed" (CPLR 

### §7803[3] [emphasis added]), and is inapplicable here-petitioner's termination was neither apenaltynor a disciplinary action but the result ofhis failure to satisfy a "qualification of employment unrelated to job performance, misconduct, or competency" (Matter ofO'Reilly v Bd. ofEduc. ofthe City Sch. Dist. ofthe City ofNew York, 213 AD3d 560 [1st Dept 2023] [internal citations omitted]).

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### In light of the foregoing, the petition is denied, as is petitioner's motion to amend the petition. While "leave to amendthe pleadings is ordinarily freely given" under CPLR 

### §3025(b) (Garcia v NY-Presbyt. Hosp., 114 AD3d 615, 615 [1st Dept 2014]), such "[l]eave will be denied where the proposed pleading
... is palpably insufficient as a matter oflaw" (Thompson v Cooper, 24 AD3d 203, 205 [1st Dept 2005]). Here, inasmuch as the proposed amendment-which would add allegationsthat "the CitymodifiedtheApril 11, 2022 termination conditionto give [petitioner] back his position as a tenured teacher ifthe Petitioner agrees waives back pay and civil service rights in writing"-would not render petitioner's challenge to the Appeals Panel's denial ofhis religious accommodation timely or alter the conclusion that petitioner's challenge to his subsequent termination per CPLR §7803(3) does not lie. Accordingly, the proposed amended petition "suffer[s] from the same fatal deficienc[ies] as the original [petition]" (Carey v Trustees ofColumbia Univ. in the City ofNew York, 177 AD3d 452, 452 [1st Dept 2019]) and leave to amend mustbe denied. Accordingly, itis ORDERED 

### andADJUDGED 

### thatthe Petitionis denied andthisproceedingis dismissed; and itis further ORDERED 

### that petitioner's motion to amend the Petition is denied; and itis further ORDERED

### thatcounsel forrespondentTheBoardofEducation ofthe CitySchool District ofthe City ofNew York shall, within ten days from the date ofthis decision, order, andjudgment,
serve a copy ofthis decision, order, andjudgment, with notice ofentry, on petitioner as well as on the Clerk ofthe Court (60 Centre St., Room 141B) andthe Clerk ofthe General Clerk's Office (60 Centre St., Room 119), who are directed to enterjudgment accordingly; and it is further

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ORDERED 

### that such service upon the Clerk ofthe Court and the Clerk ofthe General Clerk's Office shall be made in accordance with the procedures set forth in the Protocol on Courthouse and County Clerk Proceduresfor Electronically Filed Cases (accessible at the "EFiling"page onthis court's website atthe address www.nycourts.gov/supctmanh). This constitutes the decision, order, andjudgmentofthe Court.

2/20/2024

DATE HON. JUDY H. KIM, J.S.C. CHECK ONE:
APPLICATION: CHECK IF APPROPRIATE: CASE DISPOSED GRANTED 

# 0 DENIED SETTLE ORDER INCLUDES TRANSFER/REASSIGN

# ~ NON-FINAL DISPOSITION GRANTED IN PART SUBMIT ORDER FIDUCIARY APPOINTMENT

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