The opinion
Gabay v Adams
2024 NY Slip Op 32410(U)
July 12, 2024
Supreme Court, New York County
Docket Number: Index No. 156894/2022
Judge: Denise M. Dominguez
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.
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INDEX NO. 156894/2022
NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 07/12/2024
SUPREME COURT OF THE STA TE OF NEW YORK
NEW YORK COUNTY
PRESENT: HON. DENISE M DOMINGUEZ PART 35M
Justice
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INDEX"IO. 156894/7022
KYLE GABAY,
MOTION SEQ. NO. _ ___c::_00:::...:lc.....___
Petitioner,
- V -
DECISION + ORDER ON
ERIC ADAMS, ASHWIN VASAN, THE CITY OF J",;EW YORK MOTION
Rcspondcn ts.
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The fol lowing e-filed doc um cnts, Iisted by NYSCF F document number (Motion 00 I) 4, 5, 6, 7, 8, 9, 10, I I , 12, 13,
15, 16, 17, 18, 19, 20, 21, 22
were read on this motion to/for INJUNCTION/RESTRAINING ORDER
Upon the foregoing documents, the motion by order to show cause seeking injunctive relief
is denied as moot and the Petition is dismissed.
The Petitioner commenced this proceeding by filing a Petition and motion by Order to
Show Cause seeking a temporary restraining order against the Respondents from placing the
Petitioner on leave without pay and from terminating the Petitioner's employment with the New
York City Police Department, which was not named as a party in the proceeding.
This proceeding was initially assigned to Judge Arlene Bluth, who recused by Order dated
August 25, 2022 based upon "judge shopping" as the RJI (NYSCEF Doc. 9), indicated that a prior
action decided by Judge I3luth was related to the within proceeding when it was not. (NYSCEF
Doc. 22). This proceeding was then to be reassigned.
By Order of the Commissioner of the New York City Department of Health and Mental
Hygiene ("DOHMH''), Dave A Chokshi, M.D., dated On October 20, 2021, all CITY OF NEW
YORK (''CITY") employees were to show proof of at least one dose of a vaccination against the
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Motion No. 001
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NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 07/12/2024
COVID-19 virus by 5:00 p.m. on October 29, 2021. Any CITY employee that did not provide such
proof was to be excluded from the premises where they worked on November 1, 2021. Reasonable
accommodations required by law were permitted as exceptions to the vaccination mandate. 1
To address the anticipated in11ux of reasonable accommodation requests related to the
vaccination mandate, the CITY established additional procedures, including a requirement that
any reasonable accommodation request vvas to be submitted by a CITY employee on or before
October 27, 2021. Additionally. the CITY set up a panel, the City of New York Reasonable
Accommodation Appeals Panel ("Citywide Panel''), to handle the appeals of any denied
accommodation request (see Affirmation of Eric Eichcnholtz, Chief Assistant Corporation
Counsel for Employment Policy and Litigation with the New York City Office of the Corporation
Counsel, submitted on behalf of the Respondents ["Eichcnholtz Aff."J, NYSCEf Doc. 18).
On October 26, 2021, the Petitioner, KYLE GABAY, a police officer in the Health and
Wellness Command of the NYPD, submitted a religious accommodation request to be exempt
from the vaccination mandate. (NYSCEF Doc. 2). Non-party NYPD denied the Petitioner's
reasonable accommodation request by letter dated February 8, 2021. The request was denied
because the "objection was personal, political or philosophical" and because the "objection appears
to be based on verifiable false information, misinformation, fear or unknown origin or vaccine or
side effects". (NYCSEF Doc. 17). The Petitioner appealed the denial on February 10, 2022
(NYCSEf Doc. 18) and the appeal was denied following consideration by the Citywide Panel on
or about August I, 2022; the specific date is unclear from the evidence submitted. (NYCSEF Doc.
1, .),. , . .:,.)
,,..,) .
In a sperate action captioned Police Benevolent Association of the City of New York, Inc.
1 https://wwv.'.nyc.gov/assets/doh/downloads/pdf/covid/covid-19-vaccination-rcquirement-dty-employees.pdf
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INDEX NO. 156894/2022
NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 07/12/2024
v. City of New York, et al., Supreme Court, New York County, Index No. 151531/2022, by order
of Judge Lyle E. Frank dated September 23, 2022, the CITY and the NYPD were enjoined from
placing any members of the Police Benevolent Association ("PBA") on leave without pay or
terminating their employment (see Police Benev. Ass'n of the City ofl1/e,v York, Inc. v. City q/New
York, No. 151531/2022, 2022 WL 4398685 rN.Y. Sup. Ct. Sep. 23, 2022J). This decision was
ultimately reversed by the First Department as it was found that the PHA's Article 78 proceeding
was barred due to res judicata as there was a prior Article 78 proceeding brought by the PBA in
Supreme Court, Richmond County2 , "in which the court issued a valid final judgment on the
merits, denying the petition and dismissing the proceeding." (Police Benevolent Ass'n of the City
of New York. Inc. v. City of New York, 215 A.D.3d 463, 185 N.Y.S.3d 679 (1st Dept 2023), leave
to appeal denied sub nom. Police Benevolent Ass'n of City of New York, Inc. v. Ci1y of /1/ev.' York,
40 N.Y.3d 906,221 N.E.3d 37 r2023]).
However, prior to the First Department's decision, on February 9, 2023, the New York
City Board of Health amended the COVID-19 vaccination mandate for CITY employees, repealing
the provision that CITY employees were to be excluded from their work premises if they did not
show proof of vaccination. 3 Thus, the relief sought in this proceeding is now moot.
Accordingly, the motion by order to show cause, which seeks a temporary restraining order
against the Respondents from placing the Petitioner on leave without pay and from terminating the
Petitioner's employment with the New York City Police Department, is denied as moot and the
Petition is dismissed. (See Vignali v. Ci(V of New York, 222 J\..D.3d 419,201 N.Y.S.3d 18 IJst
Dept 2023 ], citing }Vew York State Cons tr. Safety Ass 'n v. A'ew York Cit}' Dep 't (d1 Ieailh & Afental
2 Matier<?( Police Benevolent Assoc. of The City oj/liew Vork, Inc. v. de Blasir;, Sup Ct., Richmond County, Feb. 16,
2022, Colon, J., Index No. 85229/2021, N YSCEF Doc. 51.
3
11 ttps:/1l10mc.nyc.gov /assets/doh/ downloads/pdf/noticc/20231boh-ordcr-amend-cov id-vaccine-req-city-
emp loyees. pdf
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Hygiene, 205 A.D.3d 576, 166 N.Y.S.3d 854 [1st Dept 2022]; People v. Amazon.com, 205 A.D.3d
485, 169 N.Y.S.3d 27 [1st Dept 2022]). In Vignali the first Department upheld the trial court's
denial of a petitioner's request for a religious accommodation from the NYPD's vaccination
mandate as the CITY's vaccination mandate had been repealed and as the "narrow exception" to
the mootness doctrine did not apply.
It is hereby:
ORDERED and ADJUDGED that the Petition for injunctive relief is denied in its entirety
as moot and the proceeding is dismissed; and it is further
ORDERED that, within 20 days from entry of this order, Respondents shall serve a copy
of this order with notice of entry upon all parties and the Clerk of the Court (60 Centre Street,
Room 141 B) and the Clerk of the General Clerk's Office (60 Centre Street, Room 119), who are
directed to mark the court's records; and it is further
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 fhr Electronically Filed Cases (accessible at the "E-
Filing" page on the court's website).
This constitutes the decision and order of the court.
7/12/2024
I (
DATE DENISE M DOMING EZ, J.S.C.
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CHECK ONE: CASE DISPOSED NON-FINAL DISPOSITION
GRANTED 0 DENIED GRANTED IN PART □ OTHER
APPLICATION: SETTLE ORDER SUBMIT ORDER
CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT □ REFERENCE
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