Ferrelli v. State

1

2022 NY Slip Op 34075(U)

CHERYL FERRELLI, JASON PASHOUKOS, MARIE ZWEIG, MELISSA MAINIERI, and SARAH SMITH Plaintiffs-Petitioners, v. THE STATE OF NEW YORK, THE NEW YORK STATE UNIFIED COURT SYSTEM, HON. LAWRENCE K. MARKS, NANCY J. BARRY, and JUSTIN A. BARRY Defendants-Respondents.

Index No. 031506/2022

Supreme Court, Rockland County

August 2, 2022

Unpublished Opinion

DECISION ORDER AND JUDGMENT

HON THOMAS P. ZUGIBE, J.

PRELIMINARY STATEMENT

CHERYL FERRELLI ("Ferrelli"), JASON PASHOUKOS ("Pashoukos"), MARIE ZWEIG ("Zweig") MELISSA MAINIERI ("Mainieri") and SARAH SMITH ("Smith") (hereinafter collectively referred to as "Petitioners") make an application pursuant to N.Y Civ. Prac. L&R ("CPLR") Article 78 as against THE STATE OF NEW YORK ("NYS"), THE NEW YORK STATE UNIFIED COURT SYSTEM ("UCS"), the HON. LAWRENCE K MARKS ("Judge Marks"), NANCY J. BARRY, and JUSTIN A. BARRY (hereinafter, with the exception of the STATE OF NEW YORK, collectively referred to as "Respondents"^[1]) seeking a judgment declaring the termination of Petitioners' employment based on the policy that required them to receive the COVID-19 vaccination to be arbitrary, capricious, and an abuse of discretion. In addition, Petitioners seek an Order reinstating their employment with UCS as well as for compensatory damages in the form of back pay, front pay, past and future employment benefits, damages for emotional distress, punitive damages, and counsel fees.

In addition, Respondents have filed a motion to dismiss the aforementioned Petition pursuant to CPLR §3211(a)(7) and §7804(f) based on Petitioners' failure to state a cause of action.

In connection with these applications, the Court has read and considered the following papers: NYSCEF DOC. NOS.:

Notice of Petition/Verified Petition/Exhibits A-1 Through E-7 1-37

Notice of Motion to Dismiss/Affidavit in Support/ Exhibits 1-7 44, 46-53

Memorandum of Law in Support of Motion to Dismiss 45

Affirmation in Opposition^[2] /Exhibits A-J 59-69

Memorandum of Law in Opposition 58

Memorandum of Law in Reply 70

RELEVANT FACTUAL AND PROCEDURAL BACKGROUND

March of 2020 was an unprecedented time in the history of our nation and the world. By Administrative Order ("AO") of the Chief Judge of the State of New York dated March 17, 2020, said AO having been executed in response to the Centers for Disease Control and Prevention ("CDC") recommendations for preventing the spread of COVID-19, the New York State Courts adjourned all non-essential matters without date. Those were challenging days, to say the very least. Though Courts quickly responded by creating ways to litigate in a primarily virtual venue life as we all knew it ceased to exist.

Many circumstances surrounding the COVID-19 pandemic have changed since the early days of March 2020. This coronavirus has undergone a myriad of mutations and variations, always keeping health experts and the public guessing as to how each variant will impact our day to day lives. The relentless feeling of being "unsettled" puts it lightly. Further, and unfortunately, our society has had to learn ways to live with this ever-changing phenomenon, primarily through the use of various types of mitigation tactics in order to decrease the spread of the virus, such as installing better ventilation systems in buildings, wearing facemasks in certain settings where physical distancing is not practical or possible and in areas where transmission is high, increasing personal hygiene strategies (such as handwashing) and increasing the frequency of surface cleaning and disinfection, to name just a few. Most significantly, pharmaceutical companies worked swiftly to create vaccines with the goal of reducing one's chances of contracting the virus, mitigating the symptoms or severity of the virus, and/or decreasing the risk of spread.

In response to the COVID-19 virus, UCS administrative staff worked tirelessly to create policies and procedures that have allowed our courts to fully reopen in as safe a manner as possible so that justice need not be delayed any longer than absolutely necessary. Further, through said policies, officials endeavored to restore as many in-person proceedings as possible, as I think we can all agree that a return to some semblance of normalcy was necessary. Courthouses are public places that many people are required to enter every single day. The courtrooms themselves are enclosed spaces, and not all of them have windows. Jurors, whether seated in the jury box or deliberating in a jury room, are in close proximity to one another. The Court's many staff members and employees interact frequently with litigants and members of the public. It therefore goes without saying that it is no simple task to formulate policies and procedures that endeavor to keep everyone safe from a virus that spreads via airborne particles and droplets in this type of a setting.

On August 23, 2021, the U.S. Food and Drug Administration ("FDA") announced its final approval of the COVID-19 vaccine. On August 25, 2021, following the FDA's announcement, Chief Administrative Judge Marks communicated that UCS would be requiring all judicial and non-judicial employees to get vaccinated against COVID-19. The Court's vaccination policy was to take effect on September 27, 2021. See, NYSCEF Doc. 47, Ex. A. On September 10, 2021, UCS issued a memorandum outlining the implementation of the mandatory vaccination policy. The memorandum also notified all UCS employees that exemptions to the vaccine requirement would be considered "for employees with underlying medical conditions that make receiving the COVID-19 vaccine unsafe for them and employees with sincerely held religious beliefs and practices that prohibit them from receiving a COVID-19 vaccine." NYSCEF Docs. 3 and 47 (Ex. B). The memorandum directed those seeking an exemption to the web portal containing the required forms and instructions. In addition, employees were notified that "[n]o exemption requests will be considered unless they are fully completed on the appropriate form and filed through the portal." Id. (emphasis added). Employees were further informed that they would be notified in writing of UCS' decision with respect to their request, or if more information was needed to consider the request. Id. The exemption requests were reviewed and considered by an eleven (11) member "Vaccination Exemption Review Committee" (the "Committee") comprised of individuals with diverse and varied backgrounds and areas of expertise. See, NYSCEF Doc. 49, ¶8. Employees who submitted exemption requests were notified in writing of the Committee's ultimate decision. On March 21, 2022, those who remained noncompliant with the policy were notified that termination would result absent UCS' receipt of proof of vaccination by April 4, 2022. See, NYSCEF Doc. 46, ¶23.

It is the denial of the five (5) named Petitioners' religious exemption requests, same having resulted in their termination from employment with UCS, that is the subject of the instant Article 78 proceeding.

Petitioner Ferrelli is a certified court reporter who began working for UCS in 1993. NYSCEF Doc. 1, ¶16. On or about October 18, 2021, in accordance with the vaccination policy referred to above, Ferrelli applied for a religious exemption from the mandate. Id. at ¶18. On November 18, 2021, UCS requested Ferrelli provide additional information with respect to her exemption request. Id. at ¶20. Ferrelli responded to the supplemental information request on December 1, 2021. Id. at ¶21; NYSCEF Doc. 6. On January 6, 2022, Ferrelli was informed in writing that her request for a religious exemption was denied. See, NYSCEF Doc. 7.

Petitioner Mainieri is a secretary who began working for UCS in 1999. NYSCEF Doc. 1, ¶27. On or about September 21, 2021, in accordance with the vaccination policy referred to above, Mainieri applied for a religious exemption from the mandate. Id. at ¶29. On November 5, 2021, UCS requested Mainieri provide additional information with respect to her exemption request. Id. at ¶31. Mainieri responded to the supplemental information request on November 16, 2021. Id. at ¶32; NYSCEF Doc. 13. On December 23, 2021, Mainieri was informed in writing that her request for a religious exemption was denied. See, NYSCEF Doc. 14.

Petitioner Pashoukos is a court officer who began working for UCS in 2015. NYSCEF Doc. 1, ¶38. On or about September 23, 2021, in accordance with the vaccination policy referred to above, Pashoukos applied for a religious exemption from the mandate. Id. at ¶40. On November 15, 2021, UCS requested Pashoukos provide additional information with respect to his exemption request. Id. at ¶42. Pashoukos responded to the supplemental information request on November 24, 2021. Id. at ¶43; NYSCEF Doc. 20. On January 7, 2022, Pashoukos was informed in writing that his request for a religious exemption was denied. See, NYSCEF Doc. 21.

Petitioner Zweig is a principal appellate court attorney who began working for UCS in 2001. NYSCEF Doc. 1, ¶48. On or about September 20, 2021, in accordance with the vaccination policy referred to above, Zweig applied for a religious exemption from the mandate. Id. at ¶50. On November 5, 2021, UCS requested Zweig provide additional information with respect to her exemption request. Id. at ¶52. Zweig responded to the supplemental information request on November 17, 2021. Id. at ¶53; NYSCEF Doc. 27. On December 29, 2021, Zweig was informed in writing that her request for a religious exemption was denied. See, NYSCEF Doc. 28.

Petitioner Smith is a judicial secretary who began working for UCS in 2004. NYSCEF Doc. 1, ¶59. Smith avers that she submitted a timely request for a religious exemption from the vaccine mandate in accordance...