The opinion
Banasik v Mount Sinai Health Sys.
2025 NY Slip Op 31233(U)
April 11, 2025
Supreme Court, New York County
Docket Number: Index No. 153072/2023
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
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publication.
INDEX NO. 153072/2023
NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 04/11/2025
SUPREME COURT OF THE STATE OF NEW YORK
NEW YORK COUNTY
PRESENT: HON. JUDY H. KIM PART 04
Justice
---------------------------------------------------------------------------------X INDEX NO. 153072/2023
MAREK BANASIK,
MOTION DATE 06/09/2023
Plaintiff,
MOTION SEQ. NO. 001
-v-
MOUNT SINAI HEALTH SYSTEM, DECISION + ORDER ON
MOTION
Defendant.
---------------------------------------------------------------------------------X
The following e-filed documents, listed by NYSCEF document number (Motion 001) 4, 5, 6, 7, 10, 11, 12,
13, 14, 15, 16
were read on this motion to DISMISS .
Upon the foregoing documents, defendant’s motion to dismiss this action is granted.
FACTUAL BACKGROUND
Plaintiff worked as a registered nurse for defendant Mount Sinai Health System since,
approximately, 1995 (NYSCEF Doc No. 1, complaint at ¶8). On or about September 16, 2021,
plaintiff went on short-term disability due to “longstanding” back pain, which had recently
worsened to a degree that it prevented him from performing essential functions of his job (id. at
¶¶15-18). While plaintiff was on disability leave, defendant informed him that he would be fired
unless he received the COVID-19 vaccine (id. at ¶19). Plaintiff requested a medical
accommodation and religious exemption to the vaccine mandate, submitting medical records
documenting his history of severe allergies to vaccines as well as a note from his personal
physician stating that he had “natural immunity” (id. at ¶¶21-22). Defendant denied plaintiff’s
requests on or around November 16, 2021, and informed plaintiff that if he was not vaccinated by
November 27, 2021, he would be fired (id. at ¶¶25-28). Defendant did not get vaccinated and was
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fired on December 6, 2021 (id. at ¶31). He was sixty years old at the time (id. at ¶8). After his
termination, plaintiff “contacted [d]efendant to inquire why no testing alternative was proposed,
given that other unvaccinated employees working on-site were permitted to test in lieu of
vaccination” (id. at ¶32).
In his complaint, plaintiff asserted claims under Executive Law §296, also known as the
(also known as the New York State Human Rights Law or “NYSHRL”), and Administrative Code
§8-107 (also known as the New York City Human Rights Law or “NYCHRL”), for disability
discrimination, age discrimination, religious discrimination, and retaliation.
Defendant moved to dismiss the complaint, pursuant to CPLR 3211(a)(7), arguing that, as
pertinent here, it: (1) failed to state an employment discrimination claim because it contained no
allegations permitting an inference of discriminatory intent based on plaintiff’s disability, age, or
religion; and (2) failed to state a retaliation claim as it did not allege that plaintiff engaged in any
protected activity, let alone that such activity proximately led to retaliation against plaintiff.
Defendant also argued that plaintiff's claim for religious discrimination fails because defendant
could not grant his requested accommodation without violating the law, i.e. 10 NYCRR §2.61,
which would have placed an undue hardship on defendant.
After defendant filed its motion to dismiss, plaintiff filed an amended complaint adding
further detail regarding the purported basis for his religious accommodation request (the “likely”
use of aborted fetal cells within the vaccine), and asserting both that defendant could have granted
plaintiff’s requested accommodation without hardship, “[i]n light of the [d]efendant's rigorous
Covid testing policies and protective measures,” and that he was fired in retaliation for his
accommodation requests and his short-term disability leave in September 2021 (NYSCEF Doc
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No. 9, amended complaint at ¶¶27, 33, 140). The Amended Complaint also added a failure to
accommodate claim under the NYSHRL and NYCHRL (id. at ¶¶145-154).
In opposition, plaintiff principally argues that the filing of the amended complaint renders
defendant’s motion moot, mandating its denial (though he also asserts, in passing, that defendant’s
arguments are “entirely without merit,” without offering further detail). In reply, defendant
maintains that plaintiff’s amended complaint was improperly filed without leave of the Court and
argues that it should be ignored or, alternatively, that the amended complaint should be dismissed
for the reasons set out in defendant’s initial motion to dismiss.
DISCUSSION
As an initial matter, plaintiff’s amended complaint was timely filed (see Rosas v Petkovich,
218 AD3d 814 [2d Dept 2023]). However, plaintiff’s assertion that the amended complaint renders
the present motion moot is incorrect; rather, the Court addresses the motion as directed against the
amended complaint, as defendant requests (see e.g. Sage Realty Corp. v Proskauer Rose LLP, 251
AD2d 35, 38 [1st Dept 1998]).
In addressing a motion to dismiss pursuant to CPLR 3211(a)(7), the pleading is to be
afforded a liberal construction and the court should accept as true the facts alleged in the complaint,
accord the pleading the benefit of every reasonable inference, and only determine whether the
facts, as alleged, fit within any cognizable legal theory (see Leon v Martinez, 84 NY2d 83 [1994]).
Claims arising under the NYCHRL must be reviewed with “an independent liberal construction
analysis in all circumstances ... targeted to understanding and fulfilling ... the [NYCHRL’s]
uniquely broad and remedial purposes” (Williams v New York City Hous. Auth., 61 AD3d 62, 66
[1st Dept 2009] [internal citations and quotations omitted]) and must be construed “broadly in
favor of discrimination plaintiffs, to the extent that such a construction is reasonably possible”
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(Albunio v City of New York, 16 NY3d 472, 477-478 [2011]). Employment discrimination claims,
in particular, are reviewed under a notice pleading standard, in which “a plaintiff … need not plead
specific facts establishing a prima facie case of discrimination but need only give fair notice of the
nature of the claim and its grounds” (Vig v New York Hairspray Co., L.P., 67 AD3d 140 [1st Dept
2009] [internal citations and quotations omitted]).
Religion, Age, and Disability Discrimination
Defendant’s motion to dismiss plaintiff’s employment discrimination claims is granted. To
state a claim for employment discrimination under the NYSHRL and NYCHRL,1 a plaintiff must
allege that: (1) he is a member of a protected class, (2) he was qualified for his position, (3) he was
treated differently or worse than other employees; and (4) this treatment occurred under
circumstances giving rise to an inference of discrimination (see Harrington v City of New York,
157 AD3d 582 [1st Dept 2018]).
Here, dismissal is warranted because the complaint does not plead facts sufficient to
establish that the denial of plaintiff’s requests for accommodation or his firing occurred under
circumstances permitting an inference of discrimination based on his religion, age, or physical
disability. In general, “[d]iscriminatory motivation may be inferred from, among other things,
invidious comments about others in the employee’s protected group, or the more favorable
treatment of employees not in the protected group” (Rodriguez v New York City Hous. Auth., 225
AD3d 458, 459 [1st Dept 2024] [internal quotation marks and citation omitted]). In this case, “[t]he
complaint does not allege that any decisionmakers made remarks that showed any discriminatory
1
Executive Law §300 was amended in 2019 to clarify that NYSHRL claims accruing after this amendment are to be
interpreted in the same manner as the NYCHRL (see Syeed v Bloomberg L.P., 41 NY3d 446, 451 [2024]), the
NYSHRL claims here are properly assessed using the liberal approach employed under the NYCHRL (see e.g., Hunold
v City of New York, 216 NYS3d 550 [Sup Ct, NY County 2024]; Cannizzaro v City of New York, 82 Misc 3d 563, 577
[Sup Ct, NY County 2023]; Brown v New York City Dept. of Educ., 2023 NY Slip Op 30106[U] [Sup Ct, NY County
2023]).
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intent” related to his age, religion, or back injury” (Brown v City of New York, 188 AD3d 518, 519
[1st Dept 2020] citing Askin v Department of Educ. of the City of N.Y., 110 AD3d 621 [1st Dept
2013]).
Neither has plaintiff pled facts “sufficient to show that he was treated differently than
others similarly situated” (Almodovar v City of New York, 82 Misc 3d 1235(A) [Sup Ct, NY County
2024]). While he alleges that he was treated differently than other employees of defendant, he fails
to include specific, factual allegations establishing that these employees were similarly situated to
him, i.e., had similar job titles, responsibilities, and supervisors (Etienne v MTA New York City Tr.
Auth., 223 AD3d 612, 612 [1st Dept 2024]; see also Serrano v City of New York, 226 AD3d 575,
576 [1st Dept 2024]). Specifically, although plaintiff alleges that “other employees who never
submitted a medical or religious exemption to the COVID 19 vaccine were permitted to work
unvaccinated while complying with [d]efendant’s testing protocol,” he does not allege that these
employees, like plaintiff, were covered by the vaccine mandate imposed pursuant to 10 NYCRR
§2.61, which applied only to those employees, like plaintiff, “who engage[d] in activities such that
if they were infected with COVID-19, they could potentially expose other covered personnel,
patients, or residents to the disease” (We The Patriots USA, Inc. v Hochul, 17 F4th 266, 272 [2d
Cir 2021] [internal citations omitted], op clarified, 17 F4th 368 [2d Cir 2021]). Similarly, while
plaintiff alleges that “[d]efendant denied the medical exemption applications for older employees
at a higher rate than younger employees [in order] to ‘clean house’ or rid the personnel of older
employees” (NYSCEF Doc No. 9, amended complaint at ¶47) he fails to allege that these younger
employees had similar responsibilities to plaintiff or requested medical accommodations or
religious exemptions on similar grounds such that their different treatment could support an
inference of discriminatory intent on the part of defendant.
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Retaliation
Defendant’s motion is also granted as to plaintiff’s retaliation claims. To state a claim for
retaliation, plaintiff must allege that: (1) he engaged in a protected activity; (2) the employer was
aware of the activity; (3) the employer acted in a manner reasonably likely to deter plaintiff from
engaging in protected activity; and (4) a causal connection existed between the protected activity
and the alleged retaliatory action (see Fletcher v Dakota, Inc., 99 AD3d 43, 51 [1st Dept 2012]).
“In this context, protected activity refers to actions taken to protest or oppose statutorily prohibited
discrimination” (Thomas v Mintz, 60 Misc 3d 1218(A) [Sup Ct, NY County 2018] [internal
citations omitted], affd as mod, 182 AD3d 490 [1st Dept 2020]).
Plaintiff’s claim that defendant retaliated against him in response to his requests for
religious exemption and medical accommodation is unavailing, as such requests are not a protected
activity for purposes of a retaliation claim (see Witchard v Montefiore Med. Ctr., 103 AD3d 596,
596 [1st Dept 2013] [internal citations omitted]). To the extent plaintiff alleges that his firing was
retaliation for taking short-term disability leave in September 2021, the three-month gap between
his disability leave and firing is insufficient, in the absence of any other indica of retaliatory intent,
to establish a causal connection between the two events (see Baldwin v Cablevision Sys. Corp., 65
AD3d 961, 967 [1st Dept 2009] [four-month gap between protected activity and retaliatory act too
distant to establish causal connection]; Bantamoi v St. Barnabas Hosp., 146 AD3d 420, 420 [1st
Dept 2017] [five-month gap too distant to establish causal connection]).
Failure to Accommodate
Finally, defendant’s motion is granted as to plaintiff’s failure to accommodate claims. To
state a cause of action for failure to accommodate, a plaintiff must allege that: (1) he is entitled to
an accommodation on the basis of a bona fide religious belief; (2) the employer had notice of such
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belief; (3) plaintiff was able to perform their job with reasonable accommodation; (4) the
accommodation would not cause undue hardship to the employer; and (5) the employer failed to
make such accommodation (Almodovar v City of New York, 82 Misc 3d 1235(A) [Sup Ct, NY
County 2024]). The complaint fails to do so, as plaintiff does not plead that defendant could, in
fact, accommodate him, as a nurse, without suffering an undue hardship, “where (as was the
instance at the time) the vaccine mandate was a condition of employment for the frontline workers,
such as [plaintiff]” (Nieves v The New York City Police Dept., 2024 NY Slip Op 33476[U], 5
[Sup Ct, Kings County 2024]). The complaint’s bald assertion that “[i]n light of the [d]efendant’s
rigorous Covid testing policies and protective measures, [p]laintiff’s requested accommodation
did not pose a hardship to the [d]efendant” fails to address the undisputed fact that defendant, in
order to grant the accommodation sought, would have violated 10 NYCRR §2.61, and that such a
violation constitutes “an undue hardship as a matter of law” (Hughes-Greene v Westchester Med.
Ctr., 82 Misc 3d 1247(A) [Sup Ct, Westchester County 2024] [internal citations and quotations
omitted]).
Accordingly, it is
ORDERED that defendant’s motion to dismiss the complaint is granted and it is hereby
dismissed; and it is further
ORDERED that defendant shall, within ten days of the date of this decision and order,
serve a copy of this decision and order, with notice of entry, upon plaintiff; and it is further
ORDERED that defendant shall, within ten days of the date of this decision and order,
serve a copy of this decision and order, with notice of entry, upon the Clerk of the Court (60 Centre
Street, Room 141B) and the Clerk of the General Clerk’s Office (60 Centre Street, Room 119),
who are directed to enter judgment accordingly; and it is further
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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).
This constitutes the decision and order of the Court.
4/11/2025
~~;ti~
DATE HON. JUDY H. KIM, J.S.C.
□ ~ ~
CHECK ONE: X CASE DISPOSED NON-FINAL DISPOSITION
X GRANTED DENIED GRANTED IN PART OTHER
APPLICATION: SETTLE ORDER SUBMIT ORDER
CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE
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