The opinion
Kinach v City of New York
2024 NY Slip Op 30763(U)
March 11, 2024
Supreme Court, New York County
Docket Number: Index No. 152869/2022
Judge: Arlene P. Bluth
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. 152869/2022
NYSCEF DOC. NO. 87 RECEIVED NYSCEF: 03/11/2024
SUPREME COURT OF THE STATE OF NEW YORK
NEW YORK COUNTY
PRESENT: HON. ARLENE P. BLUTH PART 14
Justice
---------------------------------------------------------------------------------X INDEX NO. 152869/2022
WASYL KINACH,
MOTION DATE 03/04/20241
Petitioner,
MOTION SEQ. NO. 001 002
-v-
THE CITY OF NEW YORK, BRAD LANDER AS
DECISION + ORDER ON
COMPTROLLER OF THE CITY OF NEW YORK
MOTION
Respondents.
---------------------------------------------------------------------------------X
The following e-filed documents, listed by NYSCEF document number (Motion 001) 1- 11, 16, 17, 18, 19,
20, 21, 22, 45, 53, 54, 55, 56, 57, 58, 59, 60
were read on this motion to/for ARTICLE 78 .
The following e-filed documents, listed by NYSCEF document number (Motion 002) 23, 24, 25, 26, 27,
28, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83
were read on this motion to/for CONVERT .
Motion Sequence 001 and 002 are consolidated for disposition. Respondents’ cross-
motion to dismiss the petition (MS001) is granted. Petitioner’s motion (MS002) to convert this
Article 78 proceeding into a plenary action is denied.
Background
In the amended petition, petitioner contends that he worked for the New York City
Comptroller’s Office and was terminated after he refused to get the COVID-19 vaccine. He
explains that his religious beliefs, particularly those related to abortion, prevented him from
1
Although this proceeding was only assigned to the undersigned on March 4, 2024, the Court apologizes, on behalf
of the court system, for the lengthy delay in the resolution of this proceeding.
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getting the vaccine. Petitioner insists he applied for a religious accommodation based on his
Catholic faith from the vaccine mandate but that respondents denied that request.
He contends this decision was arbitrary and capricious and that the City wrongfully
adopted a preference for the Catholic Church and the Pope’s viewpoint about the COVID-19
vaccine rather than petitioner’s own views about the vaccine. Petitioner insists that it is his
moral obligation to avoid vaccines tested using fetal tissue regardless of whether the Catholic
Church says it would be immoral to take such a vaccine.
Petitioner insists that respondents did not start from the required position that his beliefs
were valid and complains he was never provided with a hearing about the denial of his request
for an accommodation. He maintains that his beliefs could have been accommodated and that he
can hold sincerely held religious beliefs even if they might conflict with those of the Pope.
Respondents cross-move to dismiss and insists that the denial of his request for religious
accommodation was lawful. They contend that they set up a process in which individuals could
seek such accommodations and petitioner was provided with the same process extended to all
city employees. Respondents explain that the EEO Officer for the Comptroller’s Office denied
petitioner’s accommodation request on November 10, 2021 following an interview with
petitioner.
In this decision, the EEO Officer noted that federal law “does not protect social, political,
or economic views, or personal preferences. Thus, objections to COVID-19 vaccination that are
based on social, political, or personal preferences, or on nonreligious concerns about the possible
effects of the vaccine, do not qualify as religious beliefs” (NYSCEF Doc. No. 36). She added
that “the three vaccines have no tissues like aborted fetal cells, gelatin, or any materials from any
animal” and that “Many faith institutions, including the Catholic church, have said in the absence
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of an alternative vaccine not derived by using the cells, it is morally acceptable to get the vaccine
developed or tested using cell lines originating from aborted fetuses” (id.).
She concluded that “While I understand and respect your strongly-held beliefs, this office
cannot grant a religious exemption. Accordingly, your Reasonable Accommodation request for
vaccine exemption based on religious belief is denied” (id.). The City’s Appeals Panel then
denied petitioner’s appeal of this denial and adhered to the EEO’s determination (NYSCEF Doc.
No. 37).
Respondents contend that to the extent petitioner seeks to pursue Title VII claims, he
failed to exhaust administrative remedies by not bringing a timely Equal Employment
Opportunity Commission charge. They claim he was required to obtain a right to sue letter
before filing a civil action with a Title VII civil rights claim.
In opposition to the cross-motion, petitioner insists that the accommodation denial was
arbitrary and capricious. He insists that he never claimed that the Catholic Church prohibited all
vaccines and it is irrelevant what a particular religion espouses. Petitioner adds that the Pope’s
thoughts are irrelevant concerning what constitutes a sincerely held religious belief.
Petitioner points to various decisions, many of which were authored by the undersigned,
as a basis to grant the instant petitioner. He claims that there was no individualized basis for the
denial of his accommodation request. Petitioner adds that the denial was also in violation of the
Executive Law and the Free Exercise Clause of the United States Constitution. He admits that
the did not obtain a right to sue letter and claims he did not have enough time to get one.
In reply, respondents contend that petitioner’s accommodation request was not
religiously based in that he took issue with the voluntariness of getting the vaccine and that was
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what violated his religious belief. They contend that there are many requirements that
accompany jobs and voluntariness, on its own, is not a basis to grant a religious accommodation.
Discussion
In an article 78 proceeding, “the issue is whether the action taken had a rational basis and
was not arbitrary and capricious” (Ward v City of Long Beach, 20 NY3d 1042, 1043, 962 NYS2d
587 [2013] [internal quotations and citation omitted]). “An action is arbitrary and capricious
when it is taken without sound basis in reason or regard to the facts” (id.). “If the determination
has a rational basis, it will be sustained, even if a different result would not be unreasonable”
(id.). “Arbitrary action is without sound basis in reason and is generally taken without regard to
the facts” (Matter of Pell v Board of Educ. of Union Free Sch. Dist. No. 1 of Towns of Scarsdale
& Mamaroneck, Westchester County, 34 NY2d 222, 231, 356 NYS2d 833 [1974]).
As a preliminary matter, the Court observes that this proceeding is quite different from
other cases in which the undersigned has granted petitions seeking religious accommodations
from the COVID-19 vaccine (e.g., Sutliff v Adams, 2022 N.Y. Slip Op. 33644[U] [Sup Ct, New
York County 2022]. In those disputes, there were no individualized assessments regarding an
individual’s request for a religious accommodation and, instead, the denial of the request largely
consisted of checking boxes on a form without any accompanying analysis.
Here, the EEO officer had an interview with petitioner and then issued a decision that
correlates directly to the objections raised by petitioner in his religious accommodation request.
In fact, the EEO Officer addressed nearly all of the arguments raised by petitioner in his request.
Simply put, the Court finds that respondents’ decision to deny petitioner’s request on the ground
that his objections were social, political, or personal and based on erroneous facts concerning the
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vaccines was rational. And the Court emphasizes that the Citywide Panel determination
specifically referenced reviewing the EEO’s determination when denying petitioner’s appeal.
The Court finds that respondents’ determination was neither arbitrary nor capricious based on the
reasoning elucidated in the administrative record below (see Marsteller v City of New York, 217
AD3d 543, 544, 192 NYS3d 18 [1st Dept 2023] [finding that the denial of a religious
accommodation request was rational]).
This was not a situation in which there was a blanket and conclusory denial with no
reason provided. In any event, the Appellate Division, First Department has ruled that a Court
can also consider the affirmation of Eric Eichenholtz (a generalized affirmation often included in
vaccine accommodation request proceedings) regarding the Citywide Panel determinations
(Lynch v Bd. of Educ. of City School Dist. of City of New York, 221 AD3d 456, 457 [1st Dept
2023]). This is uploaded as NYSCEF Doc. No. 56 here and it details the process, from a
procedural perspective, afforded before this panel—this affirmation satisfies that petitioner was
provided with the requisite process under both federal and state law.
The Court dismisses petitioner’s Title VII claim as he admits he never followed the
required procedures before the EEOC and obtained a right-to-sue letter (Levine v Feldman, 215
AD2d 182, 183, 626 NYS2d 151 [1st Dept 1995] [dismissing discrimination claim where
petitioner did not receive a right-to-sue letter]). Nor did petitioner state a cognizable claim for
breach of the free exercise clause for the reasons described above. Moreover, the Court also
dismisses petitioner’s claims under the NYC Human Rights Law and the New York State
Executive Law. Simply put, respondents identified a valid reason for denying petitioner’s
request for a religious accommodation.
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The Court also denies petitioner’s request to convert this proceeding to a plenary action
pursuant to CPLR 103(c). Petitioner argued that “If the Court is in any way inclined to deny the
Petition, Petitioner requests the Court convert this action to a plenary action” (NYSCEF Doc.
No. 28 at 19). In this Court’s view, the purpose of CPLR 103(c), a provision titled “improper
form”, is to ensure that a party that seeks relief improperly, such as commencing a special
proceeding when a plenary action is required, has chance to have the dispute heard on the merits.
It is not a way to get a second chance where a party has not prevailed. And here, petitioner’s
claims involve a challenge to an agency action—the clear purview of an Article 78 proceeding.
Summary
The fact is that respondents carefully considered petitioner’s claims and found them to be
political or personal rather than based on a sincerely held religious belief. They evaluated his
claimed reasons for not wanting to get the vaccine and stressed that many faiths, including his
own faith, have said it is morally acceptable to get the vaccine. Simply put, this Court is unable
to find that the instant determination was irrational; that petitioner may disagree with
respondents’ determination is not a basis to grant the petition. Nor is it a basis to justify any of
petitioner’s causes of action.
Accordingly, it is hereby
ORDERED that respondents’ cross-motion to dismiss the petition is granted; and it is
further
ORDERED that petitioner’s motion (MS002) to convert this special proceeding to a
plenary action is denied; and it is further
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ADJUDGED that the petition is denied, this proceeding is dismissed without costs or
disbursements.
3/11/2024 $SIG$
DATE ARLENE P. BLUTH, J.S.C.
CHECK ONE: X CASE DISPOSED NON-FINAL DISPOSITION
□
GRANTED DENIED GRANTED IN PART X OTHER
APPLICATION: SETTLE ORDER SUBMIT ORDER
□
CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE
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