Recitation as per CPLR §§ 2219(a) and/or 3212(b) of papers considered on review of this motion:

Upon the foregoing cited papers and after oral argument on January 24, 2024, Defendants City of New York ("City"), New York City Police Department ("NYPD"), Michael Melocowsky, and New York City Department of Health and Mental Hygiene ("DOHMH"; [*2]collectively, "Defendants"), jointly move, pre-answer, for an Order, pursuant to CPLR § 3211(a)(7), dismissing Plaintiff's Verified Complaint, dated July 28, 2023 (the "Complaint"). Concurrently, Plaintiff cross-moves for an Order, pursuant to CPLR § 3025(b), for leave to serve his proposed Amended Verified Complaint (the "Proposed Amended Complaint"). For the reasons stated below, the Defendants' Motion is GRANTED and Plaintiff's cross-motion is DENIED.

Since July 1, 2004, Plaintiff has been, and to date remains, a uniformed police officer with NYPD.^[FN1]

On October 20, 2021, the DOHMH Commissioner issued an Order requiring City employees, including those of NYPD, to receive COVID-19 vaccinations on or before Friday, October 29, 2021 (the "Vaccine Mandate").^[FN2] The Vaccine Mandate further provided that "[a]ny City employee who has not provided...proof [of vaccination] must be excluded from the premises at which they work beginning on [Monday,] November 1, 2021".^[FN3] The Vaccine Mandate permitted City employees to apply for a reasonable accommodation to be exempt from vaccination.^[FN4]

On the same day (October 20, 2021), NYPD issued an Administrative Bulletin directing (in relevant part) that all of its uniformed members receive the first dose of a two-dose COVID-19 vaccine no later than Friday, October 29, 2021, with a proviso that "[i]f a member is unable to obtain proof of COVID-19 vaccination because of a medical condition, disability, or other qualifying reason, a reasonable accommodation may be sought by contacting the Equal Employment Opportunity ['EEO'] Division," with all such requests to be submitted to the EEO by Wednesday, October 27, 2021".^[FN5]

According to Plaintiff, a COVID-19 vaccination would "violate the sanctity of [his] own [*3]body and soul".^[FN6] A self-described "loyal God-fearing Christian public servant," who has been "created in God's image".^[FN7]

On October 26, 2021, Plaintiff requested an exemption from (or an accommodation for) the Vaccine Mandate by submitting to NYPD's EEO Division a reasonable accommodation application for COVID-19 vaccine exemption for members of service on the grounds of religious beliefs/practices.^[FN8] On December 14, 2021, NYPD's EEO Division denied Plaintiff's request for an exemption/accommodation from the Vaccine Mandate.^[FN9]

From December 28, 2021 until May 26, 2022, Plaintiff "engaged in weekly [COVID-19] testing until the NYPD told [him] to either get vaccinated or be terminated".^[FN10]

On May 26, 2022, Plaintiff received the mandatory COVID-19 vaccination.^[FN11] According to Plaintiff, he was "coerced" into undergoing the COVID-19 vaccination.^[FN12] More specifically, "a condition of [his] divorce court order state[d] that [he had] to cover [his] daughter on [his] healthcare plan or lose custody. Therefore, losing [his] job [with NYPD] would [have] create[d] the domino effect of losing [his] healthcare and [the custody of his] daughter".^[FN13] As the result of the "coerced" COVID-19 vaccination, Plaintiff "suffer[s] from PTSD, [has] lost all faith in [his] prosperity, [and] lost the willingness to go on in this sort of society".^[FN14]

Plaintiff did not challenge NYPD's denial of his request for religious exemption or accommodation in a CPLR article 78 proceeding.^[FN15]

On November 10, 2022, Plaintiff served a Notice of Claim for "religious discrimination under NYS and NYC Human Rights Law[s]" under Executive Law § 296, et seq. ("State HRL") and Administrative Code § 8-107, et seq.) ("City HRL") respectively.^[FN16] The Notice of Claim was served more than 90 days after Plaintiff was vaccinated on May 26, 2022.

On August 3, 2023, Plaintiff commenced the instant action. His Complaint asserts eight causes of action sounding in: (1) religious discrimination under the State and City HRLs; (2) failure to engage in a cooperative dialogue in violation of the City HRL; (3) declaratory judgment; (4) violation of the Free Exercise Clause of the Constitution of the State of New York ("State Constitution"); (5) intentional infliction of emotional distress; (6) aiding, abetting, compelling, and coercing violations under the City HRL; (7) "Intentional Tort of Forcing Unwanted Medical Care on Plaintiff and in Violation of the Nuremberg Code"; and (8) attorneys' fees (the First through Eighth Causes of Action, respectively).

As noted, pre-answer, Defendants moved for an Order, pursuant to CPLR § 3211(a)(7), dismissing the entirety of the Plaintiff's Complaint for failure to state a cause of action. As further noted, Plaintiff has cross-moved for leave to serve the Proposed Amended Complaint.

"It is well established that determinations which are made within the jurisdiction of the [administrative] official or body concerned, stand unless they are avoided by a direct attack where the infirmity is alleged to be that the action has been arbitrary or capricious." Matter of Foy v Schechter, 1 NY2d 604, 612 (1956). Such "direct attack" takes the form of a CPLR article 78 proceeding which is to be commenced within four months of the challenged act, pursuant to CPLR § 217. See e.g. Matter of Metropolitan Museum Historic Dist. Coalition v De Montebello, 20 AD3d 28, 36 (1st Dept 2005).

Here, it is undisputed that Plaintiff failed to commence a CPLR article 78 proceeding in connection with NYPD's denial of his religious exemption/accommodation request. Although the Plaintiff frames this action as a religious discrimination lawsuit under the State and City HRLs (as well as under the State Constitution), the crux of his Complaint is a challenge to the administrative denial to him of a religious exemption/accommodation from the COVID-19 vaccination, as well as the City's procedures underlying such denial. As the true nature of the Complaint, stripped of all artifice, squarely fits the parameters of a CPLR article 78 proceeding, Plaintiff was required to commence it "within four months of the act giving rise to the litigation." Town of Southampton v County of Suffolk, 98 AD3d 1033, 1034. 2d Dept. (2012); Sekulski v City of NY, 79 Misc 3d 1240(A), 2023 NY Slip Op 50839(U). Sup Ct, Kings County. (2023). Thus, because Plaintiff first became aware of the denial of his religious exemption/accommodation request on December 14, 2021, he should have commenced this action by April 14, 2022. Because he commenced this action much later (on August 3, 2023), the Complaint must be dismissed in its entirety as untimely. See CPLR § 217 (1); Sloninski v [*4]City of NY, 173 AD3d 801, 802. 2d Dept. (2019); Dolce-Richard v New York City Health & Hosps. Corp., 149 AD3d 903, 905. 2d Dept (2017); Town of Southampton, 98 AD3d at 1035. 2d Dept. (2012).^[FN17]

CPLR § 103(c), which grants the Court the discretion to convert a plenary action to a CPLR article 78 proceeding, does not aid Plaintiff. See Dolce-Richard, 149 AD3d at 904 2d Dept. (2017). A mere assertion of claims in a plenary action cannot override the requirements of a CPLR article 78 proceeding, in particular the four-month statute of limitations governing it. See CPLR § 7803 (3); Clogher v New York Med. Coll., 112 AD3d 574, 575-576. 2d Dept (2013); Demas v Levitsky, 291 AD2d 653, 660 3d Dept. (2002), lv dismissed 98 NY2d 728 (2002); Matter of Johnson v City of NY, 2023 NY Slip Op 31967(U), *4. Sup Ct, NY County (2023); Sekulski v City of NY, 79 Misc 3d 1240(A), 2023 NY Slip Op 50839(U), *4. Sup Ct, Kings County (2023).

Plaintiff's claims against the NYPD must be dismissed because it is not an entity amenable to being sued under the New York City Charter. See NYC Charter, Ch. 17, § 396; Metwally v City of NY, 215 AD3d 820, 823. 2d Dept (2023); Brown v City of NY, 192 AD3d 963, 965. 2d Dept (2021), lv denied 38 NY3d 902 (2022).^[FN18]

Even if the Court were to permit Plaintiff's claims to proceed in a plenary action, each of his eight causes of action would be dismissed either for failure to state a cause of action and/or failure to serve a timely notice of claim, for the following reasons:

Plaintiff's religious discrimination claim, as grounded on his failure to accommodate theory, is inadequate. He failed to plead that NYPD could, in fact, accommodate him, a uniformed NYPD officer, without suffering an undue hardship in light of his work duties at the time, particularly where the Vaccine Mandate was a condition of employment for frontline workers (such as the uniformed police officers with NYPD).^[FN19] Insofar as Plaintiff's religious [*5]discrimination claim is grounded on the disparate treatment theory of liability,^[FN20] he failed to allege any facts to show that he was treated differently because of his religion. Such failure is fatal to his religious discrimination claim. See St. Hillaire v Montefiore Med. Ctr., 2024 WL 167337, *4. SDNY (2024).

Regarding Plaintiff's "lack of-cooperative-dialogue" claim under the City HRL, beyond bare legal conclusions, he has not alleged facts that the City's process for resolving requests for accommodations to the Vaccine Mandate generally, and the Plaintiff's request in particular, fell short of the requirements of the City HRL regarding cooperative dialogue. To the contrary, the City's process was repeatedly found to have been rational by the First Judicial Department. Under his particular circumstances, Plaintiff has not alleged facts showing that the City HRL required "a more robust or individualized dialogue than the process he received." Matter of Marsteller v City of NY, 217 AD3d 543, 545 1st Dept. (2023), lv rearg & lv appeal denied 2023 NY Slip Op 72547(U) 1st Dept. (2023), application for lv to appeal filed Docket No. APL-2023-00170 (Ct App.(2023).^[FN21]

As Defendants correctly point out, Plaintiff's declaratory judgment cause of action is without merit because the Complaint does not present a justiciable controversy sufficient to invoke the Court's power to render a declaratory judgment. See Krawczyk v Incorporated Vil. of Lindenhurst, 216 AD3d 929, 931. 2d Dept. (2023).

A cause of action for a violation of the State Constitution arises only where it is necessary to ensure the full realization of the claimant's constitutional rights. See Brown v State of NY, 89 NY2d 172, 186 (1996); Martinez v City of Schenectady, 97 NY2d 78, 83-84 (2001). Here, the invocation of a constitutional tort cause of action is neither necessary nor appropriate because Plaintiff has alternative avenues of redress available. See Lyles v State, 2 AD3d 694, 695. 2d Dept. (2003), affd 3 NY3d 396 (2003).

Plaintiff's claim of intentional infliction of emotional distress fails because it is not listed in the Plaintiff's Notice of Claim, and thus may not be maintained in his Complaint. See Bayer v City of NY, 60 AD3d 713, 714 2d Dept. (2009), lv denied 13 NY3d 707 (2009).

To assert a claim for aiding and abetting, a plaintiff must allege: (1) the existence of an underlying tort; (2) the defendant's actual knowledge of the underlying tort; and (3) the defendant's provision of substantial assistance in the commission of the underlying tort. See Markowits v Friedman, 144 AD3d 993, 996. 2d Dept. (2016). Because Plaintiff failed to state a cognizable underlying tort, there can be no aiding and abetting liability. See Li v Shih, 207 AD3d 444, 448 2d Dept. (2022).

This claim sounds in common-law battery which was required to have been (but was not) listed in the Notice of Claim.^[FN22] Plaintiff's failure to comply with a statutory notice of claim requirement regarding his claim for common-law battery is a ground for dismissal pursuant to CPLR § 3211 (a) (7) for failure to state a cause of action. See Parpounas v Ohagan, 216 AD3d 985, 986. 2d Dept. (2023).^[FN23]

Plaintiff's final cause of action for an award of attorneys' fees is likewise without merit. Although a prevailing plaintiff may be awarded attorneys' fees under the State and City HRLs (see Executive Law § 297 [10]; Administrative Code § 8-502 [g]), a claim for attorneys' fees may not be maintained as a separate cause of action. See La Porta v Alacra, Inc., 142 AD3d 851, 853. 1st Dept. (2016). Because none of the underlying causes of action are viable, Plaintiff is not a prevailing party warranting the award of attorneys' fees.

A few closing comments are in order. First, in light of the dismissal of the entirety of the Complaint, Plaintiff is not entitled to damages of any kind, including punitive damages which he is seeking in the second "Wherefore" clause. See Niles v New York City Human Resources Admin., 2024 WL 496346, *10 ED NY (2024). Second, leave to serve and file the Proposed Amended Complaint is denied as futile. See Wiltz v New York Univ., 217 AD3d 521, 522 1st Dept. (2023), appeal dismissed 2024 NY Slip Op 62418. Ct. App. (2024); Quire v City of NY, 210 AD3d 448, 449 1st Dept. (2022). Lastly, the Court has considered the Plaintiff's remaining contentions and found them either unavailing or moot in light of its determination.

Accordingly, Defendants' Motion to Dismiss is GRANTED, the Complaint is dismissed with prejudice in its entirety against all Defendants without costs or disbursements. Plaintiff's Cross-Motion for Leave to Serve the Proposed Amended Complaint is DENIED. Corporation Counsel is directed to electronically serve a copy of this Decision and Order on Plaintiff's counsel and to electronically serve an affidavit of service with the Kings County Clerk.