The opinion
Hogue v Board of Educ. of the City Sch. Dist. of the
City of N.Y.
2024 NY Slip Op 30774(U)
March 11, 2024
Supreme Court, New York County
Docket Number: Index No. 159968/2021
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
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This opinion is uncorrected and not selected for official
publication.
INDEX NO. 159968/2021
NYSCEF DOC. NO. 53 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. 159968/2021
JAMES HOGUE,
MOTION DATE 03/04/20241
Petitioner,
MOTION SEQ. NO. 001 002
-v-
THE BOARD OF EDUCATION OF THE CITY SCHOOL
DISTRICT OF THE CITY OF NEW YORK, COMMUNITY
DECISION + ORDER ON
SCHOOL DISTRICT 28 OF THE BOARD OF EDUCATION
OF THE CITY OF NEW YORK MOTION
Respondents.
---------------------------------------------------------------------------------X
The following e-filed documents, listed by NYSCEF document number (Motion 001) 1- 18, 20, 21, 22, 23,
24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38
were read on this motion to/for ARTICLE 78 .
The following e-filed documents, listed by NYSCEF document number (Motion 002) 39, 40, 41, 42, 43,
44, 45, 46, 47, 48, 49, 50
were read on this motion to/for AMEND CAPTION/PLEADINGS .
Motion Sequence Numbers 001 and 002 are consolidated for disposition. The cross-
motion by respondents to dismiss the petition (MS001) is granted. Petitioner’s motion (MS002)
to amend is denied.
Background
This proceeding arises out of an arbitration decision issued after an impasse between the
City of New York’s the Department of Education (“DOE”) and the United Federation of
Teachers (“UFT”) concerning the COVID-19 vaccine mandate. Petitioner is a tenured teacher for
1
The Court observes that this proceeding was pending before at least two different judges over the past few years.
Although this proceeding was only transferred to the undersigned on March 4, 2024, the Court, nevertheless,
apologizes on behalf of the court system for the lengthy delay in the resolution of this dispute.
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respondents and refused to comply with the vaccine mandate or a binding arbitration award’s
process for seeking an exemption. He contends he was placed on leave without pay in October
2021 after failing to meet the deadline to show proof that he received at least one vaccination
dose or that he received an accommodation. Petitioner commenced this proceeding to inter alia
challenge the arbitration award and to demand that he receive the disciplinary process afforded to
tenured teachers under the Education Law.
Respondents contend that the petition should be dismissed because petitioner failed to
name a necessary party, he lacks standing to challenge the arbitral award at issue here and he
fails to state a cause of action. They explain that the award resolved an impasse between DOE
and petitioner’s union (UFT) and therefore petitioner cannot independently challenge that
determination. Respondents observe that petitioner failed to name UFT as a party to this
proceeding. Respondents also assert that the vaccination requirement is a condition of
employment and so petitioner’s claims about the ordinary disciplinary process are inapplicable.
In opposition to the cross-motion, petitioner admits he was not a party to the arbitration
award but claims that he has standing to challenge it. He claims he is entitled to the disciplinary
process provided to tenured teachers. Petitioner argues that UFT is not a necessary party because
it will not be affected by any decision concerning the arbitral award. He insists that Education
Law § 3020-a (which sets forth procedures about disciplinary hearings for teachers) is applicable
and he is entitled to that process.
Petitioner contends that he never waived any of his legal rights and that his placement in
a “leave without pay” status was arbitrary and capricious. He adds that the arbitrator exceeded
his authority and that the entire arbitration award must therefore be vacated.
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In reply, respondents contend that petitioner did not show that he has standing, that he
failed to join UFT as a party and that he failed to exhaust his administrative remedies. They
argue that Education Law § 3020-a does not apply because petitioner was not subject to
discipline and that he was provided the required process under the relevant collective bargaining
agreement.
Discussion
The Court observes that Appellate Division, First Department has decided the very issues
raised here in O'Reilly v Bd. of Educ. of City School Dist. of City of New York (213 AD3d 560,
561, 185 NYS3d 14 [1st Dept 2023]). In that case, the First Department observed that:
“We are asked on this appeal to decide whether tenured public school teachers are
bound by the results of an arbitration initiated by their union, the United Federation
of Teachers (UFT), pursuant to Civil Service Law § 209 to resolve an impasse over
the implementation of the COVID–19 vaccine mandate. The September 10, 2021
Impact Award, which petitioners challenge in this hybrid article 75/ article 78
proceeding, established a procedure for handling requests for religious and medical
exemptions. The article 75 claims were properly dismissed, as petitioners lack
standing to challenge the Impact Award and failed to join UFT as a necessary party.
The article 75 claims also fail on the merits. As to the article 78 claims, petitioners
are unable to show that DOE made an error of law or acted irrationally” (id. at 561).
The vaccination requirement for DOE employees was considered a condition of
employment and the arbitral award provided for religious and medical exemptions (id. at 562-
63). The First Department concluded that the DOE petitioners in the combined appeal lacked
standing (id. at 565). “When a union represents employees during arbitration, only that union –
not individual employees – may seek to vacate the resulting award” (id.).
Moreover, just as here, the petitioners in O’Reilly failed to name the UFT, which was a
necessary party (id.). “UFT advocated successfully for the exemptions, accommodations, and
extended benefits for teachers otherwise unwilling to be vaccinated, all of which were prescribed
in the Impact Award. Accordingly, UFT would be adversely impacted by a judgment favorable
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to petitioners and is thus a necessary party. Because the limitations period for article 75
proceedings has expired, any action brought now against UFT would be untimely” (id.).
The First Department’s decision also rejected other arguments raised by petitioner in this
proceeding, including that petitioner has standing to challenge whether the arbitrator exceeded
his power or that the award violates public policy (id. at 565-66).
In this Court’s view, the O’Reilly decision compels the Court to grant the respondents’
cross-motion to dismiss as it addresses seemingly every single argument raised by petitioner.
This is not a proceeding in which the petitioner asks this Court to consider the denial of his
individual request for an accommodation—petitioner admits he did not request an
accommodation at all. Rather, he challenges the arbitral award itself and the First Department
has held that he lacks standing to do so.
MS002
In this motion, petitioner seeks leave to amend to add the UFT as a respondent if the
Court finds that UFT is a necessary party. He also seeks to add claims for undue influence and
fraud against those involved in the arbitration.
The Court denies the motion as moot in light of the First Department’s decision in
O’Reilly. The First Department has ruled that the vaccination mandate and the accommodation
process was a condition of employment and that teachers, such as petitioner, lacked standing to
challenge the subject arbitral award. Adding UFT at this juncture would not compel a different
outcome.
Accordingly, it is hereby
ORDERED that respondents’ cross-motion to dismiss is granted; and it is further
ORDERED that petitioner’s motion (MS002) to amend is denied; and it is further
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ADJUDGED that the petition is denied, this proceeding is dismissed and the Clerk is
directed to enter judgment accordingly along with costs and disbursements upon presentation of
proper papers therefor.
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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