Supreme Court, Albany County, October 26, 2022

Civil Service Employees Association Counsel's Office, Albany (Steven M. Klein of counsel), for petitioners.

Eileen D. Millett, Counsel, Office of Court Administration, New York City (Pedro Morales and Catherine Jakubik of counsel), for respondents. [*2]

In this CPLR article 78 proceeding, petitioners challenge as arbitrary and capricious 29 separate determinations by respondents Janet M. DiFiore, as Chief Judge of the Court of Appeals; Lawrence K. Marks, as Chief Administrative Judge of the New York State Court; and the New York Unified Court System (hereinafter referred to collectively as UCS) denying petitioners' requests for religious exemptions from its mandatory COVID-19 vaccination policy for non-judicial employees. UCS has answered, provided the administrative record, and filed an affidavit in support of their determinations. For the reasons that follow, the petition is granted to the extent that, with respect to certain petitioners, the matter is remitted for further determinations not inconsistent with this decision; the petition is otherwise denied.

The Vaccination Policy and Application Process

During the COVID-19 pandemic, the Unified Court System adapted to evolving conditions and expert recommendations in an effort to keep New York's courts open and operative, safe for public users and employees alike. Toward that end, on or about August 25, 2021, UCS adopted and began to implement a mandatory vaccination policy. That policy required, among other things, that all non-judicial employees receive a vaccination against COVID-19 by September 27, 2021, unless exempted from the vaccine on medical or religious grounds.

To facilitate the review of exemption requests, UCS established a statewide Vaccination Exemption Review Committee and created an exemption application form. Any UCS employee{**77 Misc 3d at 655} who wished to request an exemption was required to complete and submit the application form, including an Affidavit of Religious Objection to COVID-19 Vaccination and Personal Statement Form, as well as any additional appropriate or necessary documentation to support the applicant's request. The application form required the individual to swear or affirm the truth of a series of statements about his or her religious beliefs—including a statement that the vaccination is contrary to a sincerely held religious belief and the objection to the vaccine is not solely based on grounds of personal concern, preference, or beliefs, inconvenience, or intellectual belief or philosophy. The application form also required the individual to swear or affirm that he or she was willing to comply with the requirements of the exemption program. The form provided a space for the applicant to provide "a personal written and signed statement detailing the religious basis for [the] objection, explaining why [he or she was] requesting [a] religious exemption, the religious principle(s) that guide [his or her] objections to vaccination, and the religious basis that prohibits the COVID-19 vaccination." Employees seeking exemption were required to submit their applications by September 27, 2021.

The Committee received applications from approximately 940 employees. Upon review of these applications, the Committee found the majority of the applicants' religious objections were based upon: (1) the line of fetal cells derived from aborted fetuses having been used in the testing/manufacturing of the COVID-19 vaccine; and/or (2) the sanctity and purity of the applicant's body. But the Committee found that, in many cases, the applicants' personal statements provided insufficient information to assess whether the proffered opposition was based on a sincerely held religious belief, as opposed to a personal, philosophical or safety concern. So UCS created a Supplemental Affidavit of Religious Objection to COVID-19 Vaccination form (hereinafter the supplemental form or application). The supplemental form [*3]provided information about and a list of common over-the-counter drugs, such as acetaminophen, ibuprofen, aspirin, Naproxen, and Tums, and prescription drugs, such as hydroxychloroquine and Levothyroxine, which use fetal cell lines in testing:

"Below is a list of some common pharmaceutical products that have been tested using fetal cell line HEK293 (the same fetal cell line used in the testing of the Moderna and Pfizer COVID-19 vaccines).{**77 Misc 3d at 656} To completely avoid using products tested with the fetal cell line HEK-293, individuals would have to avoid the use of many medical treatments and products and certain processed food and cosmetics."

The supplemental form then asked applicants to swear or affirm whether they: (1) had ever used any of the listed medications; (2) had used any of the listed medications in the past two years; and (3) would in the future use any of the listed medications, even if prescribed by a physician. If the answer to question (3) was yes, the supplemental form asked for an explanation of how their willingness to use such medications in the future squares with their asserted religious beliefs. The supplemental form also included questions about the applicants' past and intended conduct regarding other vaccines, medical treatments and procedures, and foods.

The Review Process

In reviewing the applications, the Committee applied the following standards. With regard to whether a belief was considered religious, the Committee looked at whether "the belief attributes its source to God, a supreme being, or an ultimate concern—that is more than an intellectual belief, opinion, or preference—to which the applicant feels obligated to adhere in complete disregard to self-interest." And, in considering the sincerity of the proffered religious belief, the Committee considered, among other things, whether the applicant's past and intended behavior appeared consistent with the professed beliefs.

The Committee adopted a blind review policy, meaning the identity of the applicant and personal information was redacted from the forms presented for consideration. The applications were divided between two working groups for initial review. UCS's in-house counsel attended meetings of both working groups. A quorum of at least three working group members was required at each review meeting. A majority vote of the working group members present was required to grant an application. If the majority of a working group quorum voted to deny a religious exemption request, the application was referred to the full Committee for further review. A quorum of the full Committee meeting was five members. If a majority of a quorum of the full Committee voted for denial, the employee was notified in writing of the denial and directed to submit proof of receipt of the first dose of a COVID-19 vaccine within 10 days.{**77 Misc 3d at 657}

In total, the Committee reviewed 937 religious exemption applications. Of the 937 applicants, the "vast majority" were required to submit the supplemental form. In all, the Committee granted 555 of these applications and denied 382 applications.^[FN1] Those who were granted exemptions were required to comply with alternative pandemic protective measures, such as masking, testing, and isolation.

On March 21, 2022, petitioners—28 non-judicial employees—commenced this CPLR article 78 proceeding challenging as arbitrary and capricious UCS's denial of their applications for religious exemptions. An amended petition, filed April 26, 2022, added an additional petitioner whose application was similarly denied. In support of the petition and amended petition, petitioners submitted their own applications, as well as the applications of six "comparators"—non-judicial employees whose applications for religious exemptions were granted. Petitioners argue that the similarity between their applications and the comparators' applications demonstrates that UCS's determination denying their applications was arbitrary and capricious and without a rational basis. Petitioners further argue that UCS provided "formulaic denial letters stating only that the individual's request for a religious exemption was considered and denied," which were "so bereft of detail that they prevented [p]etitioners from understanding why their requests were denied." And UCS's failure to provide any detailed, specific reasons for its denials of petitioners' 29 exemption requests rendered such denials arbitrary and capricious.

UCS filed an answer to the amended verified petition, a record of the application documents for each petitioner and comparator, and a supporting affidavit of Justin Barry, Chief of Administration of the New York State Office of Court Administration, who set forth the reason or reasons each petitioner's application for an exemption was denied, and the reason or reasons each comparator's application was granted. UCS also submitted a memorandum of law in opposition to the amended petition. Petitioners then submitted a brief in support of the amended petition and in reply.{**77 Misc 3d at 658}

When, as here, an administrative determination is made where an evidentiary hearing is not required by law, this court's review is limited to whether UCS's determinations were made in violation of lawful procedure, were affected by error of law, or were arbitrary and capricious or an abuse of discretion (see CPLR 7803 [3]; Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, 230-231 [1974]; Matter of Smith v City of Norwich, 205 AD3d 140, 142 [3d Dept 2022]). "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 School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d at 231; see Matter of Ward v City of Long Beach, 20 NY3d 1042, 1043 [2013]; Matter of Wooley v New York State Dept. of Correctional Servs., 15 NY3d 275, 280 [2010]). If the determination has a rational basis, it will be sustained, even if a different result would not be unreasonable (see Matter of Ward v City of Long Beach, 20 NY3d at 1043; Matter of Wooley v New York State Dept. of Correctional Servs., 15 NY3d at 280).

I. Petitioners' Claims That the Determinations Must be Vacated Because They were Made in Violation of Lawful Procedure

[1] Petitioners contend that UCS violated lawful procedure in two ways: (1) UCS failed to give notice of the decision-making criteria for making its determinations to grant or deny religious exemptions from the vaccination mandate; and (2) UCS failed to provide individualized explanations for the denials of such exemptions. Neither claim warrants the relief [*5]petitioners request.

First, the central issue to be decided in the application process was indisputable—whether the applications for religious exemptions from the vaccination mandate were based on sincerely held religious beliefs. Sincerity of religious belief was the singular criterion for decision-making. Applicants were instructed in the initial application to "provide a personal written and signed statement detailing the religious basis for your vaccination objection, explaining why you are requesting this religious exemption, the religious principle(s) that guide your objections to vaccination, and the religious basis that prohibits the COVID-19 vaccination," and they were invited to submit additional pages of explanation. The information and questions contained in the supplemental form were also clearly aimed at{**77 Misc 3d at 659} assessing the sincerity of the applicants' religious beliefs. Affiant Barry explained that the source of the standard employed by the Committee for assessing the sincerity of a professed religious belief is the law governing an employer's obligation to accommodate an employee's religious beliefs and practices, citing, among other cases, Baker v The Home Depot (445 F3d 541, 546 [2d Cir 2006]), International Soc. For Krishna Consciousness, Inc. v Barber (650 F2d 430, 440 [2d Cir 1981]), and Eatman v United Parcel Serv. (194 F Supp 2d 256, 268 [SD NY 2002]).^[FN2] Unremarkably, the case law UCS cites suggests commonsense consideration of multiple factors to determine the sincerity of professed religious beliefs: the underlying nature of the professed belief, the timing of asserting the professed belief, and whether the employee's conduct is consistent with the professed belief. Petitioners have cited nothing to support their argument that UCS was required to notify applicants on a more granular level how it intended to assess the sincerity of their religious beliefs.

Nor does the circumstance that UCS did not issue individualized rationale at the time of its denial, in and of itself, warrant the relief petitioners seek. UCS was tasked with deciding nearly 1,000 exemption applications under exigent circumstances. And the central basis for the administrative denials was readily apparent. Inferentially and unmistakably, UCS denied petitioners' applications because, in the Committee's view, the evidence before it did not support a finding that the request for an exemption was grounded in a sincerely held religious belief.

Moreover, it was permissible for UCS to provide more detailed reasons for denying petitioners' applications in response to the petition. In CPLR 7803 (3) proceedings, responsive affidavits, made by an affiant with firsthand knowledge of the decision-making process undertaken by the agency which were not part of the administrative record, may be considered to provide rationale not articulated on the face of an agency determination (see Matter of Menon v New York State Dept. of Health, 140 AD3d 1428, 1431 [3d Dept 2016];Matter of Office{**77 Misc 3d at 660} Bldg. Assoc., LLC v Empire Zone Designation Bd., 95 AD3d 1402, 1405-1406 [3d Dept 2012]; see also CPLR 7804 [d]). Courts may properly consider such affidavits where, as here, there is no administrative hearing and the issue is not one of substantial evidence, but, rather, whether the agency's determination has a rational basis (see Matter of Brown v Sawyer, 85 AD3d 1614, 1616 [4th Dept 2011]; Matter of Kirmayer v New York State Dept. of Civ. Serv., 24 AD3d 850, 851-852 [3d Dept 2005]). This case does not challenge determinations made after a hearing [*6]required by law, where there is a hard-and-fast rule that the agency must issue a reasoned decision, nor is there some other statute requiring such a reasoned decision at the administrative level (cf. Matter of Gidney v Zoning Bd. of Appeals of City of Buffalo, 207 AD3d 1025, 1026-1027 [4th Dept 2022]).

Here, UCS submitted the affidavit of Justin Barry, Chief of Administration of the New York State Office of Court Administration, who was integrally involved in implementing the vaccination policy and exemption proceedings. He addressed each petitioner's application and set forth individualized reasons for the exemption denial. And petitioners had, and exercised, their opportunity to file a reply to the Barry affidavit. The court finds no procedural infirmity in the use of form denials where, as here, the rationale for each determination, if not implicit from the outset, was spelled out in the Barry affidavit, and petitioners have had an opportunity for reply.

Furthermore, the cases cited by petitioners—Matter of Ansbro v Nigro (2022 NY Slip Op 32580[U] [Sup Ct, NY County 2022]) and Loiacono v Board of Ed. of the City of N.Y. (2022 NY Slip Op 32202[U] [Sup Ct, NY County 2022])—are inapposite, distinguishable, or unpersuasive.

In Ansbro, Supreme Court denied the petitioners' motion for a preliminary injunction, but found that the petitioners had demonstrated a likelihood of success on the merits. That case is distinguishable, however, as the Ansbro petitioners claimed that their reasonable accommodation requests were denied without a sufficient "cooperative dialogue," a specific requirement under the State and New York City Human Rights Laws, which are not at issue here (see Hosking v Memorial Sloan-Kettering Cancer Ctr., 186 AD3d 58, 64 [1st Dept 2020]).

And in Loiacono, Supreme Court held that the respondent's failure to provide at the agency level an adequate reasoning for its determination rendered such determination arbitrary and{**77 Misc 3d at 661} capricious. But it does not appear that, in rendering its decision, Supreme Court considered the fact that, in certain situations, responsive affidavits may be considered to provide a rationale missing on the face of an agency determination (see Matter of Menon v New York State Dept. of Health, 140 AD3d at 1431; Matter of Office Bldg. Assoc., LLC v Empire Zone Designation Bd., 95 AD3d at 1405-1406). And in any event, while the respondent in Loiacono attached a position statement as an exhibit to its answer, the document was undated and without an author. Here, on the other hand, UCS submitted the sworn affidavit of an individual with firsthand, personal knowledge of the decision-making process and rationale employed at the agency level.

Deletto v Adams, another decision recently issued by Supreme Court in New York County (2022 NY Slip Op 33129[U] [Sup Ct, NY County 2022]), is similarly distinguishable. In Deletto, Supreme Court found that the respondent's determination was arbitrary and capricious because it did not provide at the agency level a rationale for its determination denying the petitioner's religious exemption request. In the CPLR article 78 proceeding, counsel for the respondent proffered possible rationale for the agency's determination in a memorandum of law. Supreme Court stated: "While counsel for respondents' assertions could be compelling, it was not his role to generate arguments before this Court by doing his own evaluation of petitioner's application." (Id. at *6.) But again, UCS here submitted the affidavit of an individual with firsthand, personal knowledge of the decision-making process and rationale employed at the agency level.

II. Petitioners' Claims That UCS's Determinations Denying Their Religious Exemption Applications were Arbitrary and Capricious [*7]

According to the Barry affidavit, the Committee adopted and employed the federal legal standard governing an employer's obligation to accommodate an employee's religious beliefs and practices (see Baker v The Home Depot, 445 F3d 541, 546 [2d Cir 2006]). Mr. Barry avers that, as a general matter, the Committee denied petitioners' applications for one or more of the following reasons: (1) the applicant's stated religious belief was inconsistent with his or her personal practices as reported; (2) the applicant's objection to vaccination was non-religious in nature, i.e. based on personal preference, or doubts regarding the vaccines' necessity or safety; (3) the applicant's failure to{**77 Misc 3d at 662} identify or describe a religious belief as a basis for the exemption request; and (4) the applicant's failure to provide responsive information. In short, UCS argues, "[p]etitioners' respective failures to show that their objection to the vaccine was based on a sincerely held religious belief constitutes a rational basis for denying their respective exemption requests."

A. Applicants Who were Denied Exemptions on the Ground That the Petitioners' Past and Anticipated Use of Medications Tested Using Fetal Cell Lines is Inconsistent with Their Stated Religious Beliefs

According to UCS, the Committee denied 19 of petitioners' applications on the ground that their past and anticipated future use of medications tested on fetal cell lines is inconsistent with their stated religious beliefs (petitioners Ventresca-Cohen, Annunziata, Boback, Brink, Bunce, Cichon, Colón, Coons, Davidson, Dulaney, Fleming, Ingraham, Mercuri, O'Donnell, Ososkalo, Platt, Rahm, Sullivan, and Wilson). In particular, UCS contends that these 19 petitioners, who objected to the vaccine because it was created using fetal cell lines derived from aborted fetuses, do not sincerely hold religious beliefs against COVID-19 vaccination because they reported that either they had used, intended to use in the future, or both, medications that are currently tested on the same fetal cell lines. These petitioners indicated that they had received vaccines as children and had taken the listed medications before they learned that such medications are continually tested using the fetal cell lines. However, they did not unequivocally state that they would abstain from using them in the future.

Fifteen of these petitioners argued that there is a distinction, religiously meaningful to them, between the COVID-19 vaccines developed using fetal cell lines, and the medications listed on the supplemental form, which were developed and on the market before pharmaceutical companies began to use fetal cell lines for ongoing testing purposes. Given this distinction, they maintain that while the idea of using the COVID-19 vaccines, the very existence of which arose from the use of fetal cell lines, is highly objectionable, they would use, or would consider using, certain medications listed in the supplemental form if medically necessary and alternatives were unavailable, upon consultation with their physician, their clergy, or their own religious conscience. In petitioners' view, such conduct would not be inconsistent with or otherwise undermine their stated religious beliefs. {**77 Misc 3d at 663}

[2] UCS, on the other hand, seemingly denied many of these applications based on a premise that the applicants could not sincerely hold a religious belief that would entitle them to an exemption from mandatory COVID-19 vaccination if they would be willing to take one or more of the listed medications that have been tested on fetal cells in the future. Upon deep reflection, it is the court's view that, to the extent UCS relied on such a binary premise, it would be arbitrary and capricious to conclude that these petitioners cannot reasonably ground their objections in sincerely held religious beliefs unless they eschew vaccines and medications developed or tested [*8]on fetal cell lines in any and all circumstances, regardless of necessity.

Indisputably, the COVID-19 pandemic presented serious public health challenges to the continued operations of New York's Unified Court System. Whether in houses of worship, at workplaces, or in the courthouses, "[s]temming the spread of COVID-19 is . . . a compelling interest" (Roman Catholic Diocese of Brooklyn v Cuomo, 592 US —, —, 141 S Ct 63, 67 [2020]; Kane v de Blasio, 19 F4th 152, 169 [2d Cir 2021]). And the overall legality of UCS's policy establishing a vaccination mandate for its employees, subject to religious or medical exemptions, is not in dispute.^[FN3] Moreover, UCS, having allowed religious exemptions from the vaccination mandate, could permissibly implement procedures to assess whether the basis for seeking exemption was a sincerely held religious belief. Such oversight is reasonable and necessary to prevent unsubstantiated religious exemptions from swallowing and undermining the rule of the vaccination mandate itself (see Ford v McGinnis, 352 F3d 582, 588 [2d Cir 2003] [scrutiny of religious "sincerity is often essential in 'differentiating between those beliefs that are held as a matter of conscience and those that are animated by motives of deception and fraud' "], quoting Patrick v LeFevre, 745 F2d 153, 157 [2d Cir 1984]; cf. F.F. v State of New York, 194 AD3d 80, 87 [3d Dept 2021], appeal{**77 Misc 3d at 664} dismissed and lv denied 37 NY3d 1040 [2021], cert denied 596 US —, 142 S Ct 2738 [2022]).

UCS's supplemental form was geared towards developing a basis for reaching a conclusion as to whether petitioners' beliefs are sincerely held and religious in nature (see Kane v de Blasio, 575 F Supp 3d 435, 442-443 [SD NY 2021] ["(W)hile the 'truth' of a belief is not open to question, there remains the significant question whether it is 'truly held.' This is the threshold question of sincerity which must be resolved in every case. It is, of course, a question of fact"], citing United States v Seeger, 380 US 163, 185 [1965]). The supplemental form

"merely provides factual information about the use of fetal cell lines in creating vaccines, asks applicants questions about their use of other products tested on such cell lines, and provides an opportunity to explain how their beliefs . . . . distinguish the COVID-19 vaccines from other products. . . . This line of questioning does not presuppose the illegitimacy of concerns about use of fetal cell lines; it merely seeks to determine whether such concerns are the applicant's true motivation for seeking an exemption" (Ferrelli v State of New York Unified Ct. Sys., 2022 WL 673863, *8, 2022 US Dist LEXIS 39929, *24 [ND NY, Mar. 7, 2022, 1:22-CV-0068 (LEK/CFH)]).

But, in assessing whether the applicant holds a sincerely held religious belief based on answers provided on the supplemental form, UCS must tread carefully. "It is not within the judicial ken to question the centrality of particular beliefs or practices to a faith, or the validity of particular litigants' interpretations of those creeds" (Hernandez v Commissioner, 490 US 680, 699 [1989], reh denied 492 US 933 [1989] [emphasis added]; accord Kane v de Blasio, 19 F4th [*9]at 168; see also Frazee v Illinois Dept. of Employment Security, 489 US 829, 833 [1989] ["disagreement among sect members" over whether work was prohibited on the Sabbath had not prevented the Court from finding a free exercise violation based on the claimant's "unquestionably . . . sincere belief that his religion prevented" him from working]).^[FN4]

{**77 Misc 3d at 665}The court has serious concerns about the validity of any premise that one cannot sincerely hold a religious belief requiring abstinence from COVID-19 vaccines that are developed from fetal cell lines, and at the same time be willing to be take medications that have been tested on fetal cell lines under exceptional circumstances. Religious belief systems are often nuanced, and adherents may draw distinctions that may not seem logical to others (see Jolly v Coughlin, 76 F3d 468, 476 [2d Cir 1996] [concluding that prison officials cannot impinge on sincere religious belief simply by showing that "as an objective matter, the plaintiff's belief is not accurate or logical"]). A survey of recent judicial decisions reveals that objections to COVID-19 vaccination because the vaccines are derived from research on fetal cell lines of aborted fetuses are common (see e.g. Does 1-3 v Mills, 595 US —, —, 142 S Ct 17, 18-19 [2021, Gorsuch, J., dissenting]; Dr. A v Hochul, 595 US —, —, 142 S Ct 552, 553 [2021, Gorsuch, J., dissenting]; We the Patriots USA, Inc. v Hochul, 17 F4th 266, 272-273 [2d Cir 2021], op clarified 17 F4th 368 [2d Cir 2021], cert denied 595 US —, 142 S Ct 2569 [2022]; Together Empls. v Mass Gen. Brigham Inc., 19 F4th 1, 4-6 [1st Cir 2021]; Kane v de Blasio, 575 F Supp 3d 435, 442 [SD NY 2021]; Ferrelli v State of New York Unified Ct. Sys., 2022 WL 673863, *3, 2022 US Dist LEXIS 39929, *8-9 [ND NY, Mar. 7, 2022, 1:22-CV-0068 (LEK/CFH)]; Marciano v de Blasio, 589 F Supp 3d 423 [SD NY 2022]). To parse these individuals' beliefs so finely for complete logical consistency with intended use of similarly developed or tested vaccines, medications, and foods would be, in this court's view, inappropriate.

Highlighting the court's concerns are petitioners who indicated on their supplemental form that they would continue taking medications critical to their lives or well-being, such as thyroid medication or hydroxychloroquine, and would presumably suffer major health effects if they were to cease taking such medications. Likewise, some petitioners explained that{**77 Misc 3d at 666} they would take or consider taking the listed medications, after consulting with their physician, clergy and/or conscience, "[o]nly in a life[ ] or death situation" (NY St Cts Elec Filing [NYSCEF] Doc No. 68 at 13), if they were "absolutely necessary" (NYSCEF Doc No. 76 at 17; NYSCEF Doc No. 61 at 18; NYSCEF [*10]Doc No. 81 at 18), or if there was "no alternative" (NYSCEF Doc No. 69 at 3). To be sure, it may be reasonable to find that an applicant's casual approach to future use of medications developed or tested on fetal cell lines is some evidence that they do not hold a sincere religious belief. But it would be unreasonable to conclude that an objector cannot have a sincerely held religious belief against mandated vaccination and medications tested on fetal cell lines if they concede that they would take one or more of the listed medications, after consultation with their physician, clergy, and/or religious conscience, where critical to their life or well-being.

For example, there is likely to be common agreement that religious adherents can hold a sincere religious belief that requires fasting on holy days, and admit that they might be constrained from strictly adhering to their beliefs about fasting if they were to develop a medical condition that caused them to suffer dire consequences from fasting. Likewise, no one would dispute that religious adherents can hold sincere religious beliefs about which foods they may permissibly ingest, and admit that they might not strictly comply with such beliefs if permissible foods were unavailable, and they needed to seek sustenance for their survival or medical well-being.

These examples illustrate that people can reasonably hold a more nuanced view about religious tenets—one that allows them to weigh their belief that they should not take vaccines or medications developed or tested using fetal cell lines with medical emergencies or life's necessities. Indeed, UCS granted a religious exemption to one of the comparators (Fiet) who asserted that vaccination for COVID-19 with vaccines derived from fetal cell lines is incompatible with his religious beliefs, but he would give "prayerful consideration" to using one or more of the listed medications in life-or-death situations.

Returning to the rationale provided in the Barry affidavit, it appears that the Committee may have denied the exemption applications for at least some of these 19 petitioners on the premise that a sincerely held religious belief must be a principled, all-or-nothing objection to vaccines and medications developed or tested on fetal cell lines, rejecting any notion that{**77 Misc 3d at 667} they could legitimately hold a more nuanced belief. Because the court finds any such premise irrational, and because it is not clear whether the premise was decisive for any particular petitioner, the court remits the determinations regarding all 19 petitioners for further evaluation not inconsistent with this court's decision (see Matter of Menon v New York State Dept. of Health, 140 AD3d 1428, 1432 [3d Dept 2016]; Matter of Office Bldg. Assoc., LLC v Empire Zone Designation Bd., 95 AD3d 1402, 1406 [3d Dept 2012]).

B. Applicants Who Objected to COVID-19 Vaccination Based on Personal, Philosophical Choice and/or Their Belief in the Sanctity and Purity of the Human Body

UCS denied five petitioners' applications on the grounds that their objections to the vaccine were not based on a religious belief—but were instead based on a personal preference not to receive the vaccine, or because of doubts concerning the vaccines' medical necessity or safety—and/or because they failed to provide information demonstrating that they abstained from other medicines, medical procedures, vaccines, and foods based on their stated religious reasons (petitioners Asencio, Buss, Cheresnowsky, Dantes, and McCormick). These petitioners explained the role of religion in their lives and grounded their exemption requests in their beliefs in the sanctity of the human body, faith in their natural God-given immunity, and an obligation to follow their own personal convictions, guided by prayerful consideration.

[3] There is no reason to disbelieve petitioners' averments that they are devoutly religious [*11]and that their faith is at the forefront of any decisions they make in life. But UCS denied these petitioners' applications, even where the applicant demonstrated deeply held religious beliefs, because the applicant did not demonstrate that such religious beliefs served as the basis for the individual's decision to forgo receiving the COVID-19 vaccine. Rather, it appeared to be a personal choice, made by a religious individual. The court acknowledges that the line between religious and personal, philosophical choice is often murky (see Frazee v Illinois Dept. of Employment Security, 489 US 829, 833 [1989] ["Nor do we underestimate the difficulty of distinguishing between religious and secular convictions and in determining whether a professed belief is sincerely held"]). But the distinction is commonly drawn. And although reasonable people may disagree, the court concludes that UCS's determinations with respect to these petitioners are not arbitrary and capricious.{**77 Misc 3d at 668}

Petitioners compare their applications to the applications of six employees whose religious exemption requests were granted in arguing that UCS's determination denying their requests was irrational. To be sure, there are similarities among the applications included in this record: many cite or quote scripture and discuss a personal relationship with a church and/or deity. But, upon review of all applications submitted, applications UCS granted differ in material respects from those it denied: the employees whose applications were granted provided a clear religious basis for their objections to the vaccine, and they averred that they intend to act in the future consistently with their stated religious beliefs. Whereas these petitioners, in responding to the supplemental inquiry, either denied abstaining from other treatments and procedures, or responded broadly that they, for example, "abstain from all medicine, medical treatment, and procedures until exhausting any and all other efforts to improve [their] health naturally" (NYSCEF Doc No. 74 at 35) or that medicines, medical procedures and treatments are "prayed upon and taken or refused as God instructs" (NYSCEF Doc No. 66 at 16).

Upon careful review of these petitioners' applications, and due deliberation thereon, the court cannot conclude that UCS's determinations with regard to these five petitioners are so irrational as to be arbitrary and capricious.

C. Applicants Who Failed to Identify a Particular Religious Belief or Tenet or to Comply with UCS's Requests for Further Information

UCS denied two applications because the petitioners failed to identify a particular religious belief or tenet forbidding them from receiving the vaccine (petitioners Hawley and Pratt). In their applications, these petitioners merely stated: "I certify that receiving this vaccination conflicts with my religion." It was not irrational for UCS to deny these applications based on such a nonspecific, conclusory averment.

And UCS denied the applications of four other petitioners for failure to meaningfully respond to their request for further information (petitioners Hall, Herrera, Mercuri, and Pashoukos). As discussed above, UCS could permissibly implement procedures to assess whether the basis for seeking exemption was a sincerely held religious belief. And UCS's supplemental form was geared towards developing a basis for reaching a conclusion as to whether petitioners' beliefs are sincerely held and religious in nature (see Kane v de Blasio, 575 F Supp 3d 435, 442-443 [SD NY 2021]). The supplemental form{**77 Misc 3d at 669}

"merely provides factual information about the use of fetal cell lines in creating vaccines, asks applicants questions about their use of other products tested on such cell lines, and provides an opportunity to explain how their beliefs . . . distinguish the COVID-19 vaccines from other products. . . . This line of questioning does not [*12]presuppose the illegitimacy of concerns about use of fetal cell lines; it merely seeks to determine whether such concerns are the applicant's true motivation for seeking an exemption" (Ferrelli v State of New York Unified Ct. Sys., 2022 WL 673863, *8, 2022 US Dist LEXIS 39929, *24 [ND NY, Mar. 7, 2022, 1:22-CV-0068 (LEK/CFH)]).

Thus, where applicants refused to complete the supplemental form or provide further, responsive information, it was not arbitrary and capricious for UCS to deny these petitioners' requests for exemptions (see 2022 WL 673863, *8 n 9, 2022 US Dist LEXIS 39929, *24 n 9).

III. Petitioner Hawley's challenge to UCS's denial of her religious exemption request is alternatively barred by the statute of limitations.

"An article 78 proceeding must be commenced within four months 'after the determination to be reviewed becomes final and binding upon the petitioner' " (Matter of Gillard v Annucci, 175 AD3d 768, 768 [3d Dept 2019], lv denied 34 NY3d 907 [2020], quoting CPLR 217 [1]). "A determination generally becomes binding when the aggrieved party is notified" (Matter of Village of Westbury v Department of Transp. of State of N.Y., 75 NY2d 62, 72 [1989] [internal quotation marks and citations omitted]; accord Matter of Pinney v Van Houten, 168 AD3d 1293, 1294 [3d Dept 2019], appeal dismissed and lv denied 33 NY3d 998 [2019]; see Matter of Colavito v New York State Comptroller, 130 AD3d 1221, 1222 [3d Dept 2015]). A CPLR article 78 proceeding such as this "is deemed commenced for statute of limitations purposes on the date on which the clerk of the court . . . receives the petition in valid form" (Matter of Loper v Selsky, 26 AD3d 653, 654 [3d Dept 2006]; see Matter of Grant v Senkowski, 95 NY2d 605, 607-610 [2001]; Matter of Stevens v Bell, 197 AD3d 1474, 1474 [3d Dept 2021]).

On November 9, 2021, UCS informed petitioner Hawley, by email with attached letter, that her religious exemption request had been denied. In the letter the Committee informed petitioner Hawley that her application had been considered{**77 Misc 3d at 670} and denied and that she must submit proof of having received the first dose of a COVID-19 vaccine by November 23, 2021. The four-month statute of limitations began to run upon petitioner Hawley's receipt of UCS's final determination denying her religious exemption by email on November 9, 2021, and it expired on March 9, 2022. Petitioners commenced this CPLR article 78 proceeding on March 21, 2022. Because petitioners commenced this proceeding beyond the four-month statute of limitations, petitioner Hawley's claims are alternatively barred by the statute of limitations.

Accordingly, it is ordered that the petition is granted to the extent that, with respect to 19 petitioners identified above, the matter is remitted to UCS for further determinations not inconsistent with this decision, and the petition is otherwise denied.