This proceeding reviews the termination of a tenured teacher's
[Petitioner] employment by the New York City Board of Education [DOE] during, and as a
result of, the COVID-19 pandemic.
DOE required all its teachers to receive a vaccine against
COVID-19 before being allowed enter and work in DOE buildings, Petitioner applied
for a religious exemption, citing her religious beliefs against receiving a
COVID-19 vaccine. DOE denied Petitioner's application for a religious exemption
and her employment with the DOE was terminated as a result of Petitioner's
refusal to receive the vaccine for COVID-19.
Petitioner commenced a CPLR Article 78 proceeding
challenging DOE's decision and her resulting termination. Supreme Court sustained
DOE's action.
Petitioner then moved "for leave to reargue and renew"
her Article 78 action. Supreme Court denied Petitioner's motion. The Supreme Court's decision rejecting Petitioner's motion
"to reargue and review" is set out below:
2023 NY Slip Op 32352(U) Docket Number: Index No. 156145/2022
This opinion is
uncorrected and not selected for official publication.
TINA LYNCH,
Petitioner,
- V -
THE BOARD OF
EDUCATION OF THE CITY SCHOOL
DISTRICT OF THE CITY
OF NEW YORK, COMMUNITY
SCHOOL
DISTRICT 21 OF THE BOARD OF EDUCATION
OF THE CITY OF NEW
YORK, UNITED FEDERATION OF
TEACHERS,
Respondents.
DAVID B. COHEN, J.S.C.
By notice of motion, petitioner moves for an order granting
reargument and reconsideration of the decision and order dated January 25, 2023, by which the
petition was denied and the proceeding was dismissd. Respondents oppose and by
notice of cross motion, move for an order adjourning the return date of the
instant motion in order to submit opposition papers. It appears that the cross
motion was resolved by a referee, who extended respondents' time to oppose the
motion (NYSCEF 75), and they subsequently submitted their opposition.
I. PRIOR DECISION
This proceeding arises from the termination of petitioner's
employment as a tenured teacher with respondents during and as a result of the
COVID-19 pandemic. In sum, in response to respondents' policy requiring all
Department of Education (DOE) employees to receive a vaccine against COVID-19
before being allowed enter and work in DOE buildings, petitioner applied for a
religious exemption, citing her religious beliefs against receiving a COVID-19 vaccme [sic].
After petitioner's application was denied, and her employment with the DOE was terminated,
petitioner commenced the instant proceeding.
By decision and order dated January 25, 2023, the petition was denied on the grounds that DOE' s reasons for denying religious exemption
requests, in general and in petitioner's case, were not irrational, arbitrary,
or capricious.
II. ANALYSIS
At the outset, I observe that petitioner's memorandum of law
in support of this motion is 46 pages long, and although plaintiff does not submit a word
count certification even though required to do so (22 NYCRR 202.8-b[c]), a
review of the memorandum reflects that it contains more than 10,500 words, far above
the permitted 7,000 word limit (22 NYCRR 202.8-b[a]), which in and of itself
may warrant denial of the motion.
Nevertheless, the motion is addressed.
A. Motion to reargue
"A motion for leave to reargue pursuant to CPLR 2221 is
addressed to the sound discretion of the court and may be granted only upon a
showing that the court overlooked or misapprehended the facts or the law or for
some reason mistakenly arrive at its earlier decision" (William P. Pahl
Equip. Corp. v Kassis, 182 AD2d 22, 27 [1st Dept 1992] [internal quotation marks
and citations omitted], lv dismissed and denied 80 NY2d 1005 [1992]; see Foley
v Roche, 68 AD2d 558, 567-568 [1st Dept 1979]).
Here, petitioner does not demonstrate that any issue of fact
or law was overlooked or misapprehended. Rather, she makes the same arguments that
she previously made, which were considered and rejected (William P. Pahl Equip.
Corp., 182 AD2d at 27 [reargument not designed to give unsuccessful party
successive opportunities to reargue issues already decided]).
Moreover, while petitioner argues that the majority of
justices in this court have found that respondents' policy was arbitrary and capricious and
that she is the victim of "the unfortunate arbitrary and capricious assignment of her case
to a Judge in the City of New York"
who ruled otherwise (NYSCEF 66, p. 7), not only are the other courts' decisions
not binding on me, but petitioner does not acknowledge the cases wherein the
vaccination policy was upheld (see e.g., Matter of Lebowitz v The Bd. of Educ.
of the City of New York, 2022 WL 6776229 [Sup Ct, New York County 2023, Love,
J.]; Matter of Hogue v The Bd. of Educ. of the City Sch. Dist. of the City of
New York, 2022 WL 7109657 [Sup Ct, New York County 2022, Love, J.]; Matter of
Maniscalco v The Bd. of Educ. of the City Sch. Dist. of the City of New York,
2022 WL 797971 [Sup Ct, New York County 2022, Kotler, J.]; Matter of Bryan v
The Bd. of Educ. of the City Sch. Dist. of the City of New York, 2022 WL
14044362 [Sup Ct, New York County 2022, Engoron, J.]). Nor did petitioner
distinguish the cases cited in the prior decision.
Petitioner's arguments regarding the New York City Human
Rights Law are improperly raised for the first time here as she did not assert a
NYCHRL claim in her petition (NYSCEF 1), which she acknowledges in the
memorandum of law she filed in support thereof ("Petitioner would be well
within her rights to assert a [NYCHRL] religious accommodation claim" [NYSCEF
3, p. 16]). In any event, petitioner's assertion that respondents failed to engage
her in a cooperative dialogue as required by the NYCHRL has no merit (see e.g.,
Matter of Marsteller v City of New York, AD3d , 2023 WL 4065500 [1st Dept 2023]
[petitioner failed to show that process for resolving accommodation requests
did not comply with NYCHRL, as respondents offered information on process for reviewing accommodation
requests, informed employees how to apply for exemption and to appeal denials,
petitioner availed himself of process, respondents explained denial, and
parties further engaged in appeals process]).
Similarly, petitioner's newly-asserted New
York State
unspecified constitutional religious freedom argument may not be considered for the
first time on reargument, and, in any event, it is unavailing (see Kane v De
Blasio, 623 F Supp 3d 339 [SD NY 2022] [City policy requiring workers in school
settings to be vaccinated not unconstitutional]).
There is also no merit to petitioner's argument that this
court erred in considering respondents' position statement (see Marsteller, 2023 WL
4065500 [where there has been no administrative hearing, "an agency may
submit an official's affidavit to explain the information that was before the
agency and the rationale for its decision, and this Court may consider such an affidavit
even though it was not submitted during the administrative process"]). Leave
to reargue is thus denied.
B. Motion to renew
Pursuant to CPLR 2221 (e ), a motion for leave to renew
"shall be based upon new facts
not offered on the prior motion that would change the prior
determination or shall demonstrate that there has been a change in the law that
would change the prior determination," and "shall contain reasonable
justification for the failure to present such facts on the prior motion."
The new evidence proffered by petitioner - respondents'
issuance of a policy in February
2023 which effectively repealed the vaccination mandate - is
mentioned only in her counsel's affirmation, and she does not explain why the
new policy is relevant to whether the prior policy was irrational, arbitrary
and capricious, nor does she submit any supporting authority. In any event,
"judicial review [of an Article 78 petition] is limited to the facts and
record adduced before the agency" (Matter of Benjamin v Dept. of Haus.
Preservation, 187 AD3d 433,433 [1st Dept
2020]). As the new policy would not change the prior decision,
leave to renew is denied.
III. CONCLUSION
Accordingly, it is hereby ORDERED, that petitioner's motion
for leave to reargue and renew is denied; and it is further ORDERED, that
respondents' cross motion is denied as academic.
DAVID B. COHEN, J.S.C.