Mendez v Fire Dept. of the City of N.Y.

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Mendez v Fire Dept. of the City of N.Y. 2023 NY Slip Op 31589(U) May 12, 2023 Supreme Court, New York County Docket Number: Index No. 159601/2022 Judge: Nicholas W. Moyne 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. INDEX NO. 159601/2022 NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 05/12/2023 YORK SUPREME NEW YORK STATE OF NEW THE STATE COURT OF THE SUPREME COURT NEW YORK COUNTY YORK COUNTY NEW PRESENT: PRESENT: HON. NICHOLAS NICHOLAS W. MOYNE MOYNE HON. --a....a.........;.;;....;.~...;..;..;=;....c..;:: ;---=-.;;;.:....:..::.:.=..=-=- -:;=------ PART 52 PART Justice Justice ---------------------------------------------------------------------------------X -------------------X GLENN MENDEZ, MENDEZ, GLENN INDEX NO. INDEX MOTION DATE DATE MOTION Petitioner, Petitioner, 159601/2022 159601/2022 04/05/2023 001 MOTION SEQ. SEQ. NO. MOTION V -- v- YORK, CITY FIRE DEPARTMENT DEPARTMENT OF OF THE CITY OF OF NEW NEW YORK, CITY THE CITY FIRE OF NEWYORK OFNEWYORK DECISION + ORDER ORDER ON DECISION MOTION MOTION Respondent. Respondent. --------------------------------------------------------------------------------X ------------X 11, 13, 13, 14, 14, 15, 15, 16, 16, The listed by NYSCEF NYSCEF document number (Motion (Motion 001) 11, document number documents, listed e-filed documents, following e-filed The following 39,40,41,42,43,4 4, 38, 39,40,41,42,43,44, 37, 38, 36, 37, 35, 36, 17,18,19,20,21,22,23,24,25,26,27,28,29,30,31,32, 34, 35, 33, 34, 18, 19,20,21,22,23,2 4,25,26,27, 28,29, 30, 31, 32, 33, 17, 45 ARTICLE (BODY OR OFFICER) OFFICER) ARTICLE 78 (BODY were motion to/for to/for this motion were read on this Upon the foregoing foregoing documents, documents, it is Upon challenges the ("Mendez") challenges In this Mendez ("Mendez") Glenn Mendez petitioner Glenn the petitioner petition, the Article 78 petition, this Article mandate York's ("City") New York's defendants' denial denial of of a religious accommodation from from the City City of of New ("City") mandate religious accommodation defendants' termination for failing requiring all City City workers workers receive receive the COVID-19 failing to show show vaccine, and his termination COVID-19 vaccine, requiring dismissed must be dismissed petition must the petition that the proof contend that defendants contend The defendants vaccination. The COVID-19 vaccination. of his COVID-19 proof of limitations pursuant CPLR § ~ 217(1) 217(1) as it was four-month statute statute of oflimitations within the four-month brought within not brought was not pursuant to CPLR applicable Article 78 proceedings. proceedings. applicable to Article Background Background York New York the City Petitioner was inspector employed employed by the Fire Fire Department Department of of the City of of New was an inspector Petitioner Mental Hygiene, ("NYFD") (see Complaint Complaint 123). ~ 23). By Order Order of ofthe Commissioner of Hygiene, Health and Mental of Health the Commissioner ("NYFD") required to were required matter) were all City (with an exemption instant matter) the instant inapplicable in the exemption inapplicable employees (with City employees provide against COVID-19 COVID-19 (see Exh. Exh. C). Petitioner Petitioner vaccine against received a vaccine have received they have that they proof that provide proof instead applied for an accommodation, exempting him him from requirement and and instead vaccine requirement the vaccine from the accommodation, exempting applied AL YORK ET FIRE DEPARTMENT DEPARTMENT OF OF THE CITY OF OF NEW NEW YORK ET AL 159601/2022 MENDEZ, GLENN GLENN vs. FIRE THE CITY MENDEZ, 159601/2022 Motion No. No. 001 Motion 1 of 4 Page 1 of of 4 Page INDEX NO. 159601/2022 NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 05/12/2023 reasonable accommodation Request for a reasonable allowing COVID-19 tests (Exh. D, Request accommodation tests (Exh. weekly COVID-19 take weekly him to take allowing him mandate vaccine mandate request for a vaccine for religious observances, practices, practices, or beliefs). Petitioner's request beliefs). Petitioner's religious observances, By email this denial. exemption was denied (see Exh. letter). Petitioner appealed this denial. By email Petitioner appealed Denial letter). Exh. F, Denial was denied exemption Reasonable York Reasonable New York of New dated City of the City that the informed that was informed petitioner was 2022, petitioner June 6, 2022, dated June reasonable respect to the reasonable with respect Accommodation issued a final decision decision with Panel issued Appeals Panel Accommodation Appeals request, the request, of the denial of FDNY's denial the FDNY's of the accommodation appeal of petitioner's appeal denied petitioner's and denied request and accommodation request were to be granted" stating "FDNY "FDNY has established an undue ifRA granted" (see Exh. H, RA were hardship if undue hardship has established stating terminated, was terminated, employment was Petitioner's employment Reasonable Determination). Petitioner's Appeal Determination). Accommodation Appeal Reasonable Accommodation COVID-19 (Complaint against COVID-19 effective July 1, I, 2022, of vaccination (Complaint vaccination against proof of provide proof failing to provide 2022, for failing effective November 8, Termination Letter). commenced the instant instant action action on on November Petitioner commenced Letter). Petitioner ,~ 15; Exh. E, Termination 2022. 2022. Statute of Limitations Limitations Statute limitations. of limitations. the statute The statute of barred by the time barred action is time instant action the instant that the contend that defendants contend The defendants must be commenced proceeding, must A proceeding against a body officer, such such as the instant instant proceeding, commenced body or officer, proceeding against the upon the binding upon and binding final and becomes final within reviewed becomes determination to be reviewed the determination after the months after four months within four the aggrieved when the binding when petitioner (CPLR §~ 217[1]). "A determination determination generally generally becomes aggrieved becomes binding 217[1]). "A petitioner (CPLR An NY2d 62, 72 [1989]). party 'notified'" (Matter (Matter of a/Vi!. of Westbury Westbury v Dept. ofTransp., [1989]). An ofTransp., 75 NY2d Vil. of party is 'notified'" cause and a show cause order to show "article 78 proceeding proceeding is 'commenced petition or order of petition notice of filing a notice 'commenced by filing "article petition' (CPLR 304). 304). Claims Claims asserted asserted in such such proceedings deemed 'interposed' 'interposed' for Statute Statute proceedings are deemed petition' (CPLR Senkowski, of Grant of [c])" (Matter (Matter of Grant v Senkowski, 203[c])" CPLR 203 filing (see, CPLR of filing time of the time purposes at the Limitations purposes of Limitations 605,608 [2001]). 608 [2001]). NY2d 605, 95 NY2d of Petitioner statute of should be extended Garvey v City City of extended (see Garvey limitations should of limitations the statute that the argues that Petitioner argues New Mise 3d 585, 585, 590 [Sup Ct Richmond Richmond County County 2022] 2022] ["the ["the action action by the Department Department New York, 77 Misc AL ET AL YORK ET NEW YORK OF NEW 159601/2022 MENDEZ, CITY OF THE CITY OF THE DEPARTMENT OF FIRE DEPARTMENT vs. FIRE GLENN VS. MENDEZ, GLENN 159601/2022 Motion No. No. 001 Motion 2 of 4 Page 20f4 2 of 4 INDEX NO. 159601/2022 NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 05/12/2023 reach not reach did not agency did the agency that the means that of Sanitation in sending sending letters employees means terminated employees the terminated letters to the of Sanitation unpersuasive. "A definitive position issue"]). However, court finds finds Garvey Garvey unpersuasive. "A Statute Statute this court However, this on the issue"]). position on a definitive NY 57, 60 299 NY Realty Co., 299 Maya! Realty of (Arnold v Mayal change" (Arnold discretionary change" open to discretionary not open Limitations is not of Limitations accommodation religious accommodation request for a religious [1949]). The petitioner's request regarding petitioner's determination regarding final determination The final [1949]). that the extent became date he was of the decision. decision. To the extent that notified of was notified 2021 , the date June 6, 2021, became final on June Appeals Accommodation Appeals Reasonable Accommodation York Reasonable petitioner New York of New City of the City of the decision of the decision that the argues that petitioner argues return workers return city workers decided to let fired Panel final determination City later fired city later decided because the City determination because not a final was not Panel was the that the not indicate this does to work if they they showed that they they were vaccinated, this does not indicate that fully vaccinated, were fully proofthat showed proof work if becoming avoid becoming petitioner to avoid allow petitioner determination seeking to allow accommodation - seeking the accommodation deny the determination to deny when agency requirements to determine two requirements vaccinated final determination. determination. There determine when agency There are two not a final vaccinated - is not reached a definitive have reached must have action is final and binding agency must definitive "First, the agency petitioner. "First, the petitioner. binding on the action not may not inflicted may injury inflicted the injury second, the and second, injury and position concrete injury actual, concrete inflicts actual, that inflicts issue that the issue position on the be prevented significantly ameliorated ameliorated by further further administrative administrative action action or by steps steps available available to prevented or significantly of Telecom. of Inc. v Dept. of the complaining complaining party" (Matter of of Best of Info. Tech. and and Telecom. Payphones, Inc. Best Payphones, party" (Matter the of the decision of the decision met by the were met City of York,S5 NY3d [2005]). Both requirements were Both requirements 30, 34 [2005]). NY3d 30,34 New York, ofNew City Panel - the decision of New decision inflicted inflicted a concrete concrete Appeals PanelAccommodation Appeals Reasonable Accommodation York Reasonable New York City of was there was that there final in that was final injury in that religious accommodation, accommodation, the determination determination was denied a religious that it denied injury whether the no further from the ambiguity as to whether There is no ambiguity decision. There the decision. appeal from administrative appeal further administrative ision states decision to deny deny the accommodation was final final- - the dec. decision states on its face "This "This religious accommodation the religious decision accommodation your reasonable determination reasonable accommodation respect to your with respect decision with final decision the final represents the determination represents months after than four more than was commenced request" (Exh. H). Therefore, Therefore, as the instant instant action action was commenced more four months after request" (Exh. religious request for a religious received notice of the final determination determination of of his request the final notice of petitioner received the petitioner AL YORK ET AL NEW YORK OF NEW CITY OF THE CITY OF THE 159601/2022 MENDEZ, GLENN FIRE DEPARTMENT DEPARTMENT OF GLENN vs. FIRE 159601/2022 MENDEZ, Motion No. 001 Motion 3 of 4 Page of 4 Page 3 of INDEX NO. 159601/2022 NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 05/12/2023 accommodation, the of the petition challenging the denial denial of of a religious religious accommodation accommodation petition challenging portions of the portions accommodation, are barred limitations. of limitations. statute of the statute barred by the barred. time barred. termination are time Likewise, of the challenging petitioner's petitioner's termination petition challenging the petition portion of the portion Likewise, the that an adverse An "employment "employment discrimination discrimination claim claim accrues accrues on the date that adverse employment employment An determination that the determination possibility that the possibility determination and the plaintiff, and communicated to plaintiff, and communicated made and determination is made New York, 49 may be reversed insufficient to toll limitations period" (Pinder v City City of of New period" (Pinder toll the limitations reversed is insufficient 250,258, Ricks, 449 AD3d 280,281 280, 281 [1st Dept Dept 2008]; 2008]; see also Delaware State Coll. Col!. v Ricks, 449 US 250, 258, 101 S Delaware State AD3d terminate determination to terminate the determination Ct 498, [1980]). In the matter, the instant matter, the instant Ed 2d 431 [1980]). 498, 504, 66 L Ed July 1, 2022 than July petitioner's employment was later than 2022 (see Exh. E, petitioner no later transmitted to petitioner was transmitted petitioner's employment was Mendez was Inspector Mendez termination letter letter dated dated June June 30, 2022; ~ 15 ["On ["On July 1, I, 2022 2022 Inspector Complaint 1 2022; Complaint termination week late. "CPLR one week was one 2022, was terminated"]). "CPLR November 8, 2022, petition, filed on November the petition, Therefore, the terminated"]). Therefore, who slept plaintiffs who clear that courts do not discretion to excuse excuse late filings filings by plaintiffs slept have discretion not have that courts makes clear 201 makes 505 [2020]). NY3d 492, (Bermudez Chavez Chavez v Occidental Occidental Chem. Chern. Corp., Corp., 35 NY3d 492,505 [2020]). rights" (Bermudez their rights" on their employment of petitioner's employment Accordingly, termination ofpetitioner's the termination related to the petition related the petition of the portion of that portion Accordingly, that was untimely. was untimely. Conclusion Conclusion hereby For forth herein, herein, it is hereby reasons set forth the reasons For the ORDERED that that the the petition dismissed in its entirety. entirety. · petition is dismissed ORDERED court. the court. This constitutes the decision and of the order of and order the decision This constitutes 5/12/2023 5/12/2023 NICHOLAS W. MOYNE, MOYNE, J.S.C. J.S.C. NICHOLAS DATE DATE SETTLE ORDER SETTLE ORDER ~ INCLUDES TRANSFER/REASSIGN TRANSFER/REASSIGN INCLUDES ~ CASE DISPOSED DISPOSED CASE CHECK ONE: ONE: CHECK GRANTED GRANTED APPLICATION: APPLICATION: CHECK IF APPROPRIATE: APPROPRIATE : CHECK ~ 0 0 DENIED DENIED NON-FINAL DISPOSITION NON-FINAL DISPOSITION GRANTED IN PART PART GRANTED SUBMIT ORDER SUBMIT ORDER FIDUCIARY APPOINTMENT FIDUCIARY APPOINTMENT AL YORK ET 159601/2022 MENDEZ, GLENN GLENN VS. FIRE DEPARTMENT DEPARTMENT OF OF THE OF NEW NEW YORK ET AL CITY OF THE CITY vs. FIRE MENDEZ, 159601/2022 Motion No. 001 Motion No. 4 of 4 D OTHER OTHER D REFERENCE REFERENCE of 4 Page 4 of4

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