Magee v Board of Educ. of the City Sch. Dist. of the

City of N.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 NEW YORK 

NEW YORK 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. 

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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 

teacher for the New York City Department of Education ("DOE") (NYSCEF Doc. No. 1 [Petition 

at iFD- On August 24, 2021, the New York City Commissioner of the Department of Health and 

Mental Hygiene ("DOHMH") issued an order requiring all DOE employees to submit proof of 

their COVID-19 vaccinations by September 27, 2021 (the "DOHMH Order") (Id. at iJIO; see also 

NYSCEF Doc. No. 5). On September 20, 2021, petitioner applied for a religious exemption from 

the DOHMH Order (NYSCEF Doc. No. 1 [Petition at iJ13). 

156450/2022 MAGEE, KEVIN vs. THE BOARD OF EDUCATION OF THE CITY SCHOOL 

DISTRICT OF THE CITY OF NEW YORK ET AL 

Motion No. 001 003 

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Page 1 of 6 

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NYSCEF DOC. NO. 92 

INDEX NO. 156450/2022 

RECEIVED NYSCEF: 02/20/2024 

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 of New York's Reasonable Accommodation Appeals Panel 

(the "Appeals Panel") denied his appeal and that his employment would be terminated if he did 

not submit proof of vaccination against COVID-19 by April 1, 2022 (Id. at ,JI 8; 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 of the Board of Education of the City of New York ( collectively, the "City"), 

and his union, the United Federation of Teachers, 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, petitioner moved to amend the petition to allege, as pertinent here, 

that "[o]n or about February 6, 2023, the City modified the April 11, 2022 termination condition 

to give [petitioner] back his position as a tenured teacher if the Petitioner agrees waives back pay 

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 

156450/2022 MAGEE, KEVIN vs. THE BOARD OF EDUCATION OF THE CITY SCHOOL 

DISTRICT OF THE CITY OF NEW YORK ET AL 

Motion No. 001 003 

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Page 2 of 6 

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NYSCEF DOC. NO. 92 

INDEX NO. 156450/2022 

RECEIVED NYSCEF: 02/20/2024 

COVID-19 vaccine mandate and permitted those DOE employees who were terminated for 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 by the [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 of his 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 

determination to be reviewed becomes final and binding upon the petitioner" (CPLR §217[1]). An 

agency action is final and binding upon the petitioner when 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 ameliorated by further administrative action or by 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 

aggrieved party is notified" of that determination (Johnson v The City of New York, 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, plaintiff e-filed a letter to this Court requesting permission for supplemental briefing to address the 

applicability of a recent decision of the United States Supreme Court, Groff v DeJ oy, 600 US 44 7 (2023 ). The Court 

declines to grant this request. Groff clarifies an employer's burden in establishing that an accommodation of an 

employee's religious practice would impose an "undue hardship on the conduct of the employer's business" under 

Title VII of the Civil Rights Act of 1964 and has no bearing on the grounds for the denial and dismissal of this special 

proceeding. 

156450/2022 MAGEE, KEVIN vs. THE BOARD OF EDUCATION OF THE CITY SCHOOL 

DISTRICT OF THE CITY OF NEW YORK ET AL 

Motion No. 001 003 

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Page 3 of 6 

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NYSCEF DOC. NO. 92 

INDEX NO. 156450/2022 

RECEIVED NYSCEF: 02/20/2024 

Here, the Appeals Panel's March 28, 2022 denial of petitioner's religious accommodation 

constituted a final decision that inflicted an actual, concrete injury (See~' Demerest v New York 

City Police Dept., 2023 NY Slip Op 30232[U] [Sup Ct, NY County 2023]; see also Mendez v Fire 

Dept. of the City of New York, 2023 NY Slip Op 31589[U] [Sup Ct, NY County 2023]). Petitioner 

does not dispute that he was notified of the denial of his appeal on March 28, 2022. Therefore, the 

four-month statute of limitations 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 of the 

denial of his religious exemption are untimely. Petitioner's contention that the limitations period 

for such claims began to run on the date he was notified of his 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 of discretion as to the measure or 

mode of penalty or discipline imposed" (CPLR §7803 [3] [ emphasis added]), and is inapplicable 

here-petitioner's termination was neither a penalty nor a disciplinary action but the result of his 

failure to satisfy a "qualification of employment unrelated to job performance, misconduct, or 

competency" (Matter of O'Reilly v Bd. of Educ. of the City Sch. Dist. of the City of New York, 

213 AD3d 560 [1st Dept 2023] [internal citations omitted]). 

156450/2022 MAGEE, KEVIN vs. THE BOARD OF EDUCATION OF THE CITY SCHOOL 

DISTRICT OF THE CITY OF NEW YORK ET AL 

Motion No. 001 003 

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NYSCEF DOC. NO. 92 

INDEX NO. 156450/2022 

RECEIVED NYSCEF: 02/20/2024 

In light of the foregoing, the petition is denied, as is petitioner's motion to amend the 

petition. While "leave to amend the 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 of law" (Thompson v Cooper, 

24 AD3d 203, 205 [1st Dept 2005]). Here, inasmuch as the proposed amendment-which would 

add allegations that "the City modified the April 11, 2022 termination condition to give [petitioner] 

back his position as a tenured teacher if the Petitioner agrees waives back pay and civil service 

rights in writing"-would not render petitioner's challenge to the Appeals Panel's denial of his 

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 

of Columbia Univ. in the City of New York, 177 AD3d 452, 452 [1st Dept 2019]) and leave to 

amend must be denied. 

Accordingly, it is 

ORDERED and ADJUDGED that the Petition is denied and this proceeding is dismissed; 

and it is further 

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

ORDERED that counsel for respondent The Board of Education of the City School District 

of the City of New York shall, within ten days from the date of this decision, order, and judgment, 

serve a copy of this decision, order, and judgment, with notice of entry, on petitioner as well as on 

the Clerk of the Court (60 Centre St., Room 141B) and the Clerk of the General Clerk's Office (60 

Centre St., Room 119), who are directed to enter judgment accordingly; and it is further 

156450/2022 MAGEE, KEVIN vs. THE BOARD OF EDUCATION OF THE CITY SCHOOL 

DISTRICT OF THE CITY OF NEW YORK ET AL 

Motion No. 001 003 

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NYSCEF DOC. NO. 92 

INDEX NO. 156450/2022 

RECEIVED NYSCEF: 02/20/2024 

ORDERED that such service upon the Clerk of the Court and the Clerk of the General 

Clerk's Office shall be made in accordance with the procedures set forth in the Protocol on 

Courthouse and County Clerk Procedures for Electronically Filed Cases ( accessible at the 

"EFiling" page on this court's website at the address www.nycourts.gov/supctmanh). 

This constitutes the decision, order, and judgment of the 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 

156450/2022 MAGEE, KEVIN vs. THE BOARD OF EDUCATION OF THE CITY SCHOOL 

DISTRICT OF THE CITY OF NEW YORK ET AL 

Motion No. 001 003 

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□ OTHER 

□ REFERENCE 

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