Preview
FILED: NEW YORK COUNTY CLERK 01/26/2023 01:50 PM INDEX NO. 157230/2022
NYSCEF DOC. NO. 52 RECEIVED NYSCEF: 01/26/2023
New York Supreme Court
Appellate Division—First Department
AD Docket No.
2023-
In the Matter of the Application of
PATRICK MARSTELLER,
Petitioner-Appellant,
-against-
THE CITY OF NEW YORK, THE NEW YORK CITY POLICE
DEPARTMENT, SERGEANTS BENEVOLENT ASSOCIATION,
INC., ERIC ADAMS, in his official capacity, ASHWIN VASAN, in
his official capacity as Commissioner of The New York City
Department of Health and Mental Hygiene,
Respondents-Respondents.
RECORD ON APPEAL
JIMMY WAGNER, ESQ.
Attorney for Petitioner-Appellant
2055 Flatbush Avenue
Brooklyn, New York 11234
(929) 477-8889
jimmy013@gmail.com
NEW YORK CITY LAW DEPARTMENT
Attorneys for Respondents-Respondents
100 Church Street
New York, New York 10007
(212) 356-2387
dslack@law.nyc.gov
New York County Clerk’s Index Number: 157230/2022
Comprehensive Appellate Press, Inc. - 212.967.7737 - info@appellatepress.com
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TABLE OF CONTENTS
Statement pursuant to CPLR 5531 1
Notice of Appeal dated January 11, 2023 2
Decision and Order appealed from of the Hon. Nancy M. Bannon dated January 9, 2023 8
Notice of Petition dated August 24, 2022 11
Verified Petition dated August 24, 2022 13
Exhibit 1: Executive Order 78 40
Exhibit 2: Commissioner of Health Order dated October 20, 2021 43
Exhibit 3: FAQ on New York City Employees Vaccine Mandate 48
Exhibit 4: Vaccine Exemption Request dated October 26, 2021 62
Exhibit 5: Denial dated November 30, 2021 71
Exhibit 6: Decision in PBA v DeBlasio 72
Exhibit 7: Denial Letter dated February 8, 2022 78
Exhibit 9: Appeal Panel denial dated June 30, 2022 82
Exhibit 10: Decision in Loiacono v Dept. of Education 83
Exhibit 11: Decision in Matter of Ansbro v Nigro 90
Exhibit 12: NYC Equal Employment Opportunity Policy 97
Exhibit 13: NYC Reasonable Accommodation Procedural Guidelines 152
Exhibit 14: NYPD Administrative Guide 194
Memorandum of Law in Support of Petition dated August 23, 2022 197
Verified Answer dated October 24, 2022 218
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Affirmation of Dominique F. Saint-Fort, Esq. in Support of Verified Answer dated
October 24, 2022 248
Exhibit A: Vaccine Exemption Request dated October 26, 2021 251
Exhibit B: Denial Letter dated November 30, 2021 259
Exhibit C: Denial Letter dated February 8, 2022 261
Exhibit D: Petitioner's Letter with Appeal 263
Exhibit E: Email to Petitioner 266
Exhibit F: Affidavit of Michael Melocowsky in PBA v DeBlasio 267
Exhibit G: Petitioner Emails to Melocowsky 274
Exhibit H: NYPD Administrative Memo 278
Affirmation of Eric J. Eichenholtz, Esq. for Respondents, dated October 24, 2022 281
Memorandum of Law in Support of Verified Answer dated October 24, 2022 290
Reply Affirmation of Jimmy Wagner, Esq. dated October 28, 2022 307
Certification pursuant to CPLR 2105 325
ii
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Statement pursuant to CPLR 5531
Supreme Court of the State of New York
Appellate Division: First Judicial Department
PATRICK MARSTELLER,
Petitioner-Appellant,
-against-
AD Docket No. 2023-
THE CITY OF NEW YORK, THE NEW YORK
CITY POLICE DEPARTMENT, SERGEANTS
BENEVOLENT ASSOCIATION, INC., ERIC
ADAMS, in his official capacity, ASHWIN VASAN,
in his official capacity as Commissioner of The New
York City Department of Health and Mental Hygiene,
Respondents-Respondents.
STATEMENT PURSUANT TO CPLR § 5531
1. The index number in the lower court is 157230/2022.
2. The names of the parties are set forth above. There has been no change.
3. The action was commenced in the New York County Supreme Court.
4. The notice of petition and petition were filed on or about August 24, 2022. The answer
was filed on or about October 24, 2022.
5. The object of the action is to annul Respondents' determination in denying Petitioner
religious exemption to the Covid-19 vaccine mandate.
6. The appeal is from a Decision and Order of the New York County Supreme Court dated
and entered on January 9, 2023, made by Justice Bannon.
7. The appeal is being perfected on the full record method.
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Notice of Appeal dated January 11, 2023
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
PATRICK MARSTELLER
PETITIONER,
-against- Index No.: 157230/2022
THE CITY OF NEW YORK, THE NEW YORK CITY Part 42
POLICE DEPARTMENT, SERGEANTS BENEVOLENT
ASSOCIATION OF THE CITY OF NEW YORK, INC., ERIC J.S.C. Nancy M. Bannon
ADAMS, in his officialcapacity, ASHWIN VASAN, in his
official capacity, as Commissioner of the New York City NOTICE OF APPEAL
Department of Health and Mental Hygiene,
RESPONDENTS.
PLEASE TAKE NOTICE thatpursuant to Article 55 of the CPLR, Petitioner,
PATRICK MARSTELLAR ("Petitioner") hereby appeals to theAppellate Division of the
Supreme Court of the State of New York, First Judicial Department, from the Decision and
Order on Motion of this Court, Part 42, Judge Nancy M. Bannon, J.S.C dated January 9, 2023
and with a Notice of Entry dated January 11, 2023.
Dated: January 11, 2023 By;
Brooklyn, NY J n iny after, sq.
2055 ush venue
Bro n,NY 11234
(P) -477-8889
To: New York Corporate Counsel
Dominique Fatima Saint-Fort
Attorney for the City of New York, NYPD,
Sergeants Benevolent Association, Eric
Adams, and Ashwin Vasan
100 Church Street
New York, NY 10007
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§upreme Court of tlje State of fleto fork
$ppellate Bibigion: jfirst Jubitial Bepartment
Informational Statement (Pursuant to 22 NYCRR 1250.3 - Civil
[a])
" " " " " " " " " " For CourtofOriginal Instance
PATRICK MARSTELLAR
Date Notice of Appeal Filed
- against-
The City ofNew York, et.al.
OCivil Action 2 CPLRatticle 78 Proceeding E Appeal O T1ansfened Proceeding
¡CPLR 75
atticle Albitration O SpecialProceeding Other O OriginalProceedings ¡ CPLR Article
78
OAction Commenced underCPLR 214-g OHabeas Corpus ¡ CPLR Article 78 O Executive Law § 298
Proceeding
¡ Eminent Domain CPLR 5704 Review
O Labor Law 220 or 220-b
O Public Officers Law § 36
¡ Real Property Tax Law § 1278
O Administrative Review O Business Relationships ¡ Commercial O Contracts
O Declaratory Judgment O Domestic Relations O Election Law O Estate Matters
O Family Court O Mortgage Foreclosure EMiscellaneous O Prisoner Discipline & Parole
¡ Real Property 2 Statutory ¡ Taxation O Torts
(other than foreclosure)
Appeal
Statement
Informational - Civil
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Paper Appealed From (Check one only): If anappeal has been taken from more than one order or
judgment by the of
filing thisnotice of appeal,please
indicatethe below information for each such order or
judgment appealed from on a separate sheet of paper.
O Amended Decree O Determination O Order O Resettled Order
O Amended Judgement ¡ Finding O Order & Judgment ¡ Ruling
¡ Amended Order ¡ Interlocutory Decree O PartialDecree ¡ Other (specify):
O 2 Decision O InterlocutoryJudgment D Resettled Decree
O Decree ¡ Judgment ¡ Resettled Judgment
Court: Supreme Court County: New York
Dated: January 9,2023 Entered: January 9,2023
ludge (name infull):
Hon. Nancy M. Bannon Index No.: 157230/2022
Stage: ¡ Interlocutory M Final O Post-Final Trial: O Yes 2 No If Yes:O Jury O Non-Jury
Are any appeals arisinginthe same action or proceeding currently pending inthe court? 2 Yes BNo
If Yes,
please setforth the Appellate DivisionCase Number assigned to each such appeal.
Where appropriate, indicatewhether there is anyrelated action or proceeding now inany courtof thisor any other
jurisdiction,and ifso,the status of thecase:
Commenced by: O Order to Show Cause E Notice of Petition ¡ Writ of Habeas Corpus Date Filed:
Statuteauthorizing commencement of proceeding inthe Appellate Division:
Court: Choose Court County: Choose County
Judge (name infull): Order of Transfer Date:
Court: Choose Court County: Choose County
Judge (name infull): Dated:
Description:If anappeal, brieflydescribe the paper appealed from. If theappeal is from an order,specify the relief
requested and whether the motion was granted or denied. If anoriginalproceeding commenced inthis court or transferred
pursuant to CPLR 7804(g), brieflydescribe the object of proceeding. If anapplicationunder CPLR 5704,brieflydescribe the
nature of theex parte order to be reviewed.
Statement
Informational - Civil
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Issues: the
Specify issues proposed
to be raised
on theappeal, or application
proceeding, forCPLR 5704 the groundsfor
review, or modification
reversal,
to be advanced
and thespecific
relief
soughton appeal.
The Court's January 9,2023 Decision and Order denying the Petitionwas incorrectand insufficient.
The Court should have
properly considered the entiretyof Petitioner'sargument inthat:
1) an agency must provide some explanation and;
Criteria" Respondents'
2) even ifthe Court determines "Does Not Meet was sufficientexplanation, the violation of thelaw and
itsown policiesmust lead thisCourt to annul the agency determination.
Instructions:Fill
in the name of each party to the action or proceeding, one name per line. If this
form is tobe filedfor an
appeal, indicatethe status of theparty inthe court of originalinstance and his,her,or itsstatus inthiscourt, ifany.If this
form is tobe filedfor a proceeding commenced inthis court,fill
inonly the party'sname and his,her, or itsstatusinthis
court.
No. Party Name Original Status Appellate Division Status
1 Marstellar
Patrick Petitioner Appellant
2 The Cityof NewYork Respondent Respondent
3 The New YorkPoliceDepartment Respondent Respondent
4 Sergeants
BenevolentAssociation Respondent Respondent
5 EricAdams Respondent Respondent
6 Ashwin Vasan Respondent Respondent
7
8
9
10
11
12
13
14
15
16
17
18
19
20
Statement
Informational - Civil
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Instructions: in
Fill thenames of theattorneys or firms forthe respective parties.If this
form is tobe filedwith the
noticeofpetition or orderto show cause by which a specialproceeding is to
be commenced in theAppellate Division,
only the name of theattorney forthe petitionerneed be provided. inthe event thata litigantrepresents herselfor
Se"
himself,the box marked "Pro must be checked and theappropriate information forthat litigant
must be supplied
inthe spaces provided.
Attorney/Firm Name: Jimmy Wagner, Esq.
Address: 2055 Flatbush Avenue
City: Brooklyn State:NY Zip:11234 Telephone No: 929-477-8889
E-mailAddress: jimmy013@gmail.com
Attorney Type: SRetained O Assigned O Government ¡ Pro Se O Pro Hac Vice
Party or PartiesRepresented (setforth party number(s) from table above): 1
Attorney/Firm Name: New York Corporate Counsel, Dominique Fatima Saint-Fort
Address: 100 Church Street,Room 2-186
City: New York State:NY Zip:10007 Telephone No: 212-356-2444
E-mailAddress: dosaint@law.nyc.gov
Attorney Type: ¡ Retained O Assigned O Government O Pro Se ¡ Pro Hac Vice
Party or PartiesRepresented (setforth party number(s) from tableabove): 2,3,4,5,&6
Attorney/Firm Name:
Address:
City:New York State: Zip: Telephone No:
E-mailAddress:
Attorney Type: ¡ Retained O Assigned O Government O Pro Se O Pro Hac Vice
Party or PartiesRepresented (setforth party number(s) from tableabove):
Attorney/Firm Name:
Address:
City: State: Zip: Telephone No:
E-mailAddress:
Attorney Type: ¡ Retained O Assigned O Government O Pro Se ¡ Pro Hac Vice
Party or PartiesRepresented (setforth partynumber(s) from tableabove):
Attorney/Firm Name:
Address:
City: State: Zip: Telephone No:
E-mailAddress:
Attorney Type: ¡ Retained O Assigned O Government O Pro Se O Pro Hac Vice
Party or PartiesRepresented (setforth party number(s) from tableabove):
Informational
Statement- Civil
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
PATRICK MARSTELLER
PETITIONER,
-against-
Index No.: 157230/2022
THE CITY OF NEW YORK, THE NEW YORK CITY
POLICE DEPARTMENT, SERGEANTS BENEVOLENT
ASSOCIATION OF THE CITY OF NEW YORK, INC., ERIC
AFFIDAVIT
ADAMS, in his officialcapacity, ASHWIN VASAN, in his
official capacity, as Commissioner of the New York City
Department of Health and Mental Hygiene,
RESPONDENTS.
AFFIDAVIT OF MAILING
I, Claudia Cabrera, being duly sworn, depose and say that I am over 18 years of age, I
11th
reside in the State of New York, thaton the day of January 2023, deponent served the Notice
of Appeal, Informational Statement, and the Decision and Order on:
New York Corporate Counsel
Dominique Fatima Saint-Fort
100 Church Street, Rm 2-186
New York, NY 10007
by depositing a true copy of same enclosed in a post-paid, properly addressed wrapper, in the
Official Depository maintained and exclusively controlled by the United States postal service
within the State of New York atthe said address(es), respectfully mentioned above, that being the
addresses(es) within the statedesignated for that purpose upon the lastpapers served in thisaction
or the place where the above then resided or kept offices,according to the best information which
can be conveniently obtained.
Subscn d and sworn t e or
on th ry
otaff/Þdblic
576882ccf2848273/Documents/Marsteller^J
https://d.does.live.n Patrick/1.10.23 Notice of Appeal.docx
comm. F 88
gy
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Decision and Order appealed from of the Hon. Nancy M.
Bannon dated January 9, 2023
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SUPREME COURT OF THE STATE OF NEW YORK
NEW YORK COUNTY
PRESENT: HON. NANCY M. BANNON PART 42
Justice
---------------------------------------------------------------------------------X
INDEX NO. 157230/2022
PATRICK MARSTELLER,
MOTION DATE 10/31/2022
Petitioner,
MOTION SEQ. NO. 001
-v-
THE CITY OF NEW YORK, THE NEW YORK CITY POLICE
DEPARTMENT, SERGEANTS BENEVOLENT DECISION, ORDER +
ASSOCIATION, INC., ERIC ADAMS, and ASHWIN VASAN, JUDGMENT ON MOTION
Respondents.
---------------------------------------------------------------------------------X
The following e-filed documents, listed by NYSCEF document number (Motion 001) 2, 24, 30, 31, 32, 33,
34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44
were read on this motion to/for ARTICLE 78 (BODY OR OFFICER) .
Petitioner Patrick Marsteller brings this CPLR article 78 proceeding against respondents
The City of New York, The New York City Police Department, The Sergeants Benevolent
Association, Inc., New York City Mayor Eric Adams, and Commissioner of the New York City
Department of Health and Mental Hygiene Ashwin Vasan to annul a final determination of the
respondents dated June 30, 2022, which denied the petitioner’s request for a COVID-19 vaccine
exemption based on his alleged religious beliefs. The respondents oppose the petition. The
petition is denied.
The petitioner began his employment with the New York City Police Department
approximately 9 years ago. On October 20, 2021, in response to the COVID-19 pandemic, the
Commissioner of the New York City Department of Health and Mental Hygiene issued an order
requiring all New York City employees to submit proof of vaccination against COVID-19 no later
than November 1, 2021. On October 27, 2021, the petitioner submitted a request for a religious
exemption to the vaccine mandate in the form of a 6-page letter describing himself as “a
Christian,” no denomination specified, and citing to, inter alia, a variety of Old and New
Testament verses, the “Westminster Assembly of Divines,” and “Vatican II,” none of which
contain a prohibition against vaccination. The gravamen of the petitioner’s application was that
his “conscience tells [him] that receiving the Covid vaccination is wrong.” Specifically, the
petitioner contended that he had “doubts about whether or not [he] should be injecting
something into [his] body,” that he considered the incentives offered to those who received the
vaccines “bribes,” and that his religious beliefs compel him to “protect the physical integrity of
[his] Body against unclean foods and injections.” The petitioner further averred that “injecting a
medical product that has any connection to aborted fetal cell lines or abortion in any manner …
157230/2022 MARSTELLER, PATRICK vs. THE CITY OF NEW YORK ET AL Page 1 of 3
Motion No.001
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would be defiling [his body].” Finally, the petitioner stated that he believes the vaccine is
associated with “the Mark of the Beast” and that having a CDC vaccine card would be
tantamount to his “participating in the Beast’s plan.”
On November 30, 2021, the petitioner’s vaccine exemption request was denied in a
letter signed by Michael Melocowsky, the Executive Director of the Equal Employment
Opportunity Division of the New York City Police Department. The petitioner emailed Executive
Director Melocowsky on November 30, 2021, December 1, 2021, and December 3, 2021,
seeking further information as to the reason for denial of his request. On February 8, 2022,
Executive Director Melocowsky sent the petitioner a further letter stating that this request was
denied because his objection was “personal, political, or philosophical,” his statement “does not
appear to be written by applicant [or was a] generic statement that does not support candidate’s
request,” his statement “does not set forth how religious tenets conflicts [sic] with vaccine
requirement,” and the petitioner had “[n]o demonstrated history of vaccination/medicine refusal.”
On February 14, 2022, the petitioner appealed the denial of his exemption request. The
petitioner submitted a further 3-page letter in support of his appeal reiterating the assertions in
his original application, highlighting his lack of allegiance to “the Pope or any ‘religious leader,’”
framing his objection as “[his] own personal conflict of conscience,” and adding that all prior
vaccinations he received did not violate his religious beliefs because he “never experienced
conflict of conscience” in connection with a vaccine prior to the COVID-19 vaccine. On June 30,
2022, the City of New York Reasonable Accommodation Appeals Panel (the Citywide Panel)
denied the petitioner’s appeal and affirmed the New York City Police Department’s denial of the
petitioner’s reasonable accommodation request because the petitioner’s appeal “Does Not Meet
Criteria.” On July 12, 2022, the petitioner applied for vested separation retirement, which was
set to take effect on October 28, 2022. On August 24, 2022, the petitioner commenced this
proceeding.
It is well settled that judicial review of an administrative determination pursuant to CPLR
article 78 is limited to whether the determination was arbitrary and capricious or rationally based
on the record. See Matter of Peckham v Calogero, 12 NY3d 424 (2009); Pell v Bd. of Educ., 34
NY2d 222 (1974); see also Hushes v Doherty, 5 NY3d 100 (2005). Disposition of the
proceeding is limited to “the facts and record adduced before the agency” when the
administrative determination was rendered. See Fanelli v New York City Conciliation & Appeals
Bd., 90 AD2d 756, 757 (1st Dept. 1982).
The court finds that the respondents did not act arbitrarily or capriciously in denying the
petitioner’s application for a vaccination exemption. The February 8, 2022, letter from Executive
Director Melocowsky clearly identifies the sound reasons for the denial of such application,
including the clear philosophical nature of the petitioner’s objections, the petitioner’s failure to
provide a cogent explanation why his religion or religious beliefs conflict with vaccination, and
the petitioner’s failure to demonstrate any history of refusing vaccines or other medicine for
religious reasons. The Citywide Panel’s June 30, 2022, denial of the petitioner’s appeal
157230/2022 MARSTELLER, PATRICK vs. THE CITY OF NEW YORK ET AL Page 2 of 3
Motion No.001
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confirms Executive Director Melocowsky’s rationale. The explanation provided for denial is
sufficient to meet the threshold for this court’s deference as a matter of law.
The petitioner’s remaining challenges to the denial of his vaccine exemption request are
without merit for the reasons explained in the respondents’ papers.
Accordingly, it is
ORDERED and ADJUDGED that the petition is denied, and the proceeding is dismissed
in its entirety.
This constitutes the Decision, Order, and Judgment of the court.
1/9/2023 $SIG$
DATE
CHECK ONE: X CASE DISPOSED NON-FINAL DISPOSITION
GRANTED X DENIED GRANTED IN PART OTHER
APPLICATION: SETTLE ORDER SUBMIT ORDER
CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE
157230/2022 MARSTELLER, PATRICK vs. THE CITY OF NEW YORK ET AL Page 3 of 3
Motion No.001
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Notice of Petition dated August 24, 2022
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
X
PATRICK MARSTELLER, Index No.
Petitioner,
FOR A JUDGEMENT PURSUANT TO ARTICLE 78 NOTICE OF PETITION
-against-
THE CITY OF NEW YORK, THE NEW YORK CITY
POLICE DEPARTMENT, SERGEANTS BENEVOLENT
ASSOCIATION, INC., ERIC ADAMS, in his official
capacity as Mayor of New York City, ASHWIN VASAN,
inhis official capacity as Commissioner of the New York
City Department of Health and Mental Hygiene,
Respondent(s)
X
TO THE RESPONDENTS:
PLEASE TAKE NOTICE thatupon the annexed petition of PATRICK
MARSTELLER, verified on August 24, 2022, the exhibits annexed thereto, and together with
the accompanying Memorandum of Law in Support of the Article 78 Petition, an application will
be made to thisCourt, at theMotion Support Office courtroom, 60 Centre Steet,Room 130, New
York, New York, on the 30th day of September, 2022 at 9:30 am or as soon thereafter as counsel
can be heard, for an Order and Judgment pursuant to Article 78 of the Civil Practice Law and
Rules:
1. Annulling the agency determination of June 30,2022 which denied Petitioner's
request fora reasonable accommodation and terminated the Petitioner;
2. Granting Petitioner's reasonable accommodation from the vaccine mandate;
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FILED: NEW YORK COUNTY CLERK 01/26/2023 01:50 PM INDEX NO. 157230/2022 NYSCEF DOC. NO. 52 RECEIVED NYSCEF: 01/26/2023 New York Supreme Court Appellate Division—First Department AD Docket No. 2023- In the Matter of the Application of PATRICK MARSTELLER, Petitioner-Appellant, -against- THE CITY OF NEW YORK, THE NEW YORK CITY POLICE DEPARTMENT, SERGEANTS BENEVOLENT ASSOCIATION, INC., ERIC ADAMS, in his official capacity, ASHWIN VASAN, in his official capacity as Commissioner of The New York City Department of Health and Mental Hygiene, Respondents-Respondents. RECORD ON APPEAL JIMMY WAGNER, ESQ. Attorney for Petitioner-Appellant 2055 Flatbush Avenue Brooklyn, New York 11234 (929) 477-8889 jimmy013@gmail.com NEW YORK CITY LAW DEPARTMENT Attorneys for Respondents-Respondents 100 Church Street New York, New York 10007 (212) 356-2387 dslack@law.nyc.gov New York County Clerk’s Index Number: 157230/2022 Comprehensive Appellate Press, Inc. - 212.967.7737 - info@appellatepress.com FILED: NEW YORK COUNTY CLERK 01/26/2023 01:50 PM INDEX NO. 157230/2022 NYSCEF DOC. NO. 52 RECEIVED NYSCEF: 01/26/2023 TABLE OF CONTENTS Statement pursuant to CPLR 5531 1 Notice of Appeal dated January 11, 2023 2 Decision and Order appealed from of the Hon. Nancy M. Bannon dated January 9, 2023 8 Notice of Petition dated August 24, 2022 11 Verified Petition dated August 24, 2022 13 Exhibit 1: Executive Order 78 40 Exhibit 2: Commissioner of Health Order dated October 20, 2021 43 Exhibit 3: FAQ on New York City Employees Vaccine Mandate 48 Exhibit 4: Vaccine Exemption Request dated October 26, 2021 62 Exhibit 5: Denial dated November 30, 2021 71 Exhibit 6: Decision in PBA v DeBlasio 72 Exhibit 7: Denial Letter dated February 8, 2022 78 Exhibit 9: Appeal Panel denial dated June 30, 2022 82 Exhibit 10: Decision in Loiacono v Dept. of Education 83 Exhibit 11: Decision in Matter of Ansbro v Nigro 90 Exhibit 12: NYC Equal Employment Opportunity Policy 97 Exhibit 13: NYC Reasonable Accommodation Procedural Guidelines 152 Exhibit 14: NYPD Administrative Guide 194 Memorandum of Law in Support of Petition dated August 23, 2022 197 Verified Answer dated October 24, 2022 218 i FILED: NEW YORK COUNTY CLERK 01/26/2023 01:50 PM INDEX NO. 157230/2022 NYSCEF DOC. NO. 52 RECEIVED NYSCEF: 01/26/2023 Affirmation of Dominique F. Saint-Fort, Esq. in Support of Verified Answer dated October 24, 2022 248 Exhibit A: Vaccine Exemption Request dated October 26, 2021 251 Exhibit B: Denial Letter dated November 30, 2021 259 Exhibit C: Denial Letter dated February 8, 2022 261 Exhibit D: Petitioner's Letter with Appeal 263 Exhibit E: Email to Petitioner 266 Exhibit F: Affidavit of Michael Melocowsky in PBA v DeBlasio 267 Exhibit G: Petitioner Emails to Melocowsky 274 Exhibit H: NYPD Administrative Memo 278 Affirmation of Eric J. Eichenholtz, Esq. for Respondents, dated October 24, 2022 281 Memorandum of Law in Support of Verified Answer dated October 24, 2022 290 Reply Affirmation of Jimmy Wagner, Esq. dated October 28, 2022 307 Certification pursuant to CPLR 2105 325 ii FILED: NEW YORK COUNTY CLERK 01/26/2023 01:50 PM INDEX NO. 157230/2022 NYSCEF DOC. NO. 52 1 RECEIVED NYSCEF: 01/26/2023 Statement pursuant to CPLR 5531 Supreme Court of the State of New York Appellate Division: First Judicial Department PATRICK MARSTELLER, Petitioner-Appellant, -against- AD Docket No. 2023- THE CITY OF NEW YORK, THE NEW YORK CITY POLICE DEPARTMENT, SERGEANTS BENEVOLENT ASSOCIATION, INC., ERIC ADAMS, in his official capacity, ASHWIN VASAN, in his official capacity as Commissioner of The New York City Department of Health and Mental Hygiene, Respondents-Respondents. STATEMENT PURSUANT TO CPLR § 5531 1. The index number in the lower court is 157230/2022. 2. The names of the parties are set forth above. There has been no change. 3. The action was commenced in the New York County Supreme Court. 4. The notice of petition and petition were filed on or about August 24, 2022. The answer was filed on or about October 24, 2022. 5. The object of the action is to annul Respondents' determination in denying Petitioner religious exemption to the Covid-19 vaccine mandate. 6. The appeal is from a Decision and Order of the New York County Supreme Court dated and entered on January 9, 2023, made by Justice Bannon. 7. The appeal is being perfected on the full record method. FILED: NEW YORK COUNTY CLERK 01/26/2023 01:50 PM INDEX NO. 157230/2022 NYSCEF DOC. NO. 52 2 RECEIVED NYSCEF: 01/26/2023 Notice of Appeal dated January 11, 2023 FILED: NEW YORK COUNTY CLERK 01/11/2023 12:17 PM INDEX NO. 157230/2022 NYSCEF DOC. NO. 48 RECEIVED NYSCEF: 01/11/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK PATRICK MARSTELLER PETITIONER, -against- Index No.: 157230/2022 THE CITY OF NEW YORK, THE NEW YORK CITY Part 42 POLICE DEPARTMENT, SERGEANTS BENEVOLENT ASSOCIATION OF THE CITY OF NEW YORK, INC., ERIC J.S.C. Nancy M. Bannon ADAMS, in his officialcapacity, ASHWIN VASAN, in his official capacity, as Commissioner of the New York City NOTICE OF APPEAL Department of Health and Mental Hygiene, RESPONDENTS. PLEASE TAKE NOTICE thatpursuant to Article 55 of the CPLR, Petitioner, PATRICK MARSTELLAR ("Petitioner") hereby appeals to theAppellate Division of the Supreme Court of the State of New York, First Judicial Department, from the Decision and Order on Motion of this Court, Part 42, Judge Nancy M. Bannon, J.S.C dated January 9, 2023 and with a Notice of Entry dated January 11, 2023. Dated: January 11, 2023 By; Brooklyn, NY J n iny after, sq. 2055 ush venue Bro n,NY 11234 (P) -477-8889 To: New York Corporate Counsel Dominique Fatima Saint-Fort Attorney for the City of New York, NYPD, Sergeants Benevolent Association, Eric Adams, and Ashwin Vasan 100 Church Street New York, NY 10007 1 of 9 FILED: NEW YORK COUNTY CLERK 01/26/2023 01:50 PM INDEX NO. 157230/2022 NYSCEF DOC. NO. 52 3 RECEIVED NYSCEF: 01/26/2023 FILED: NEW YORK COUNTY CLERK 01/11/2023 12:17 PM INDEX NO. 157230/2022 NYSCEF DOC. NO. 48 RECEIVED NYSCEF: 01/11/2023 §upreme Court of tlje State of fleto fork $ppellate Bibigion: jfirst Jubitial Bepartment Informational Statement (Pursuant to 22 NYCRR 1250.3 - Civil [a]) " " " " " " " " " " For CourtofOriginal Instance PATRICK MARSTELLAR Date Notice of Appeal Filed - against- The City ofNew York, et.al. OCivil Action 2 CPLRatticle 78 Proceeding E Appeal O T1ansfened Proceeding ¡CPLR 75 atticle Albitration O SpecialProceeding Other O OriginalProceedings ¡ CPLR Article 78 OAction Commenced underCPLR 214-g OHabeas Corpus ¡ CPLR Article 78 O Executive Law § 298 Proceeding ¡ Eminent Domain CPLR 5704 Review O Labor Law 220 or 220-b O Public Officers Law § 36 ¡ Real Property Tax Law § 1278 O Administrative Review O Business Relationships ¡ Commercial O Contracts O Declaratory Judgment O Domestic Relations O Election Law O Estate Matters O Family Court O Mortgage Foreclosure EMiscellaneous O Prisoner Discipline & Parole ¡ Real Property 2 Statutory ¡ Taxation O Torts (other than foreclosure) Appeal Statement Informational - Civil 5 of 9 FILED: NEW YORK COUNTY CLERK 01/26/2023 01:50 PM INDEX NO. 157230/2022 NYSCEF DOC. NO. 52 4 RECEIVED NYSCEF: 01/26/2023 FILED: NEW YORK COUNTY CLERK 01/11/2023 12:17 PM INDEX NO. 157230/2022 NYSCEF DOC. NO. 48 RECEIVED NYSCEF: 01/11/2023 Paper Appealed From (Check one only): If anappeal has been taken from more than one order or judgment by the of filing thisnotice of appeal,please indicatethe below information for each such order or judgment appealed from on a separate sheet of paper. O Amended Decree O Determination O Order O Resettled Order O Amended Judgement ¡ Finding O Order & Judgment ¡ Ruling ¡ Amended Order ¡ Interlocutory Decree O PartialDecree ¡ Other (specify): O 2 Decision O InterlocutoryJudgment D Resettled Decree O Decree ¡ Judgment ¡ Resettled Judgment Court: Supreme Court County: New York Dated: January 9,2023 Entered: January 9,2023 ludge (name infull): Hon. Nancy M. Bannon Index No.: 157230/2022 Stage: ¡ Interlocutory M Final O Post-Final Trial: O Yes 2 No If Yes:O Jury O Non-Jury Are any appeals arisinginthe same action or proceeding currently pending inthe court? 2 Yes BNo If Yes, please setforth the Appellate DivisionCase Number assigned to each such appeal. Where appropriate, indicatewhether there is anyrelated action or proceeding now inany courtof thisor any other jurisdiction,and ifso,the status of thecase: Commenced by: O Order to Show Cause E Notice of Petition ¡ Writ of Habeas Corpus Date Filed: Statuteauthorizing commencement of proceeding inthe Appellate Division: Court: Choose Court County: Choose County Judge (name infull): Order of Transfer Date: Court: Choose Court County: Choose County Judge (name infull): Dated: Description:If anappeal, brieflydescribe the paper appealed from. If theappeal is from an order,specify the relief requested and whether the motion was granted or denied. If anoriginalproceeding commenced inthis court or transferred pursuant to CPLR 7804(g), brieflydescribe the object of proceeding. If anapplicationunder CPLR 5704,brieflydescribe the nature of theex parte order to be reviewed. Statement Informational - Civil 6 of 9 FILED: NEW YORK COUNTY CLERK 01/26/2023 01:50 PM INDEX NO. 157230/2022 NYSCEF DOC. NO. 52 5 RECEIVED NYSCEF: 01/26/2023 FILED: NEW YORK COUNTY CLERK 01/11/2023 12:17 PM INDEX NO. 157230/2022 NYSCEF DOC. NO. 48 RECEIVED NYSCEF: 01/11/2023 Issues: the Specify issues proposed to be raised on theappeal, or application proceeding, forCPLR 5704 the groundsfor review, or modification reversal, to be advanced and thespecific relief soughton appeal. The Court's January 9,2023 Decision and Order denying the Petitionwas incorrectand insufficient. The Court should have properly considered the entiretyof Petitioner'sargument inthat: 1) an agency must provide some explanation and; Criteria" Respondents' 2) even ifthe Court determines "Does Not Meet was sufficientexplanation, the violation of thelaw and itsown policiesmust lead thisCourt to annul the agency determination. Instructions:Fill in the name of each party to the action or proceeding, one name per line. If this form is tobe filedfor an appeal, indicatethe status of theparty inthe court of originalinstance and his,her,or itsstatus inthiscourt, ifany.If this form is tobe filedfor a proceeding commenced inthis court,fill inonly the party'sname and his,her, or itsstatusinthis court. No. Party Name Original Status Appellate Division Status 1 Marstellar Patrick Petitioner Appellant 2 The Cityof NewYork Respondent Respondent 3 The New YorkPoliceDepartment Respondent Respondent 4 Sergeants BenevolentAssociation Respondent Respondent 5 EricAdams Respondent Respondent 6 Ashwin Vasan Respondent Respondent 7 8 9 10 11 12 13 14 15 16 17 18 19 20 Statement Informational - Civil 7 of 9 FILED: NEW YORK COUNTY CLERK 01/26/2023 01:50 PM INDEX NO. 157230/2022 NYSCEF DOC. NO. 52 6 RECEIVED NYSCEF: 01/26/2023 FILED: NEW YORK COUNTY CLERK 01/11/2023 12:17 PM INDEX NO. 157230/2022 NYSCEF DOC. NO. 48 RECEIVED NYSCEF: 01/11/2023 Instructions: in Fill thenames of theattorneys or firms forthe respective parties.If this form is tobe filedwith the noticeofpetition or orderto show cause by which a specialproceeding is to be commenced in theAppellate Division, only the name of theattorney forthe petitionerneed be provided. inthe event thata litigantrepresents herselfor Se" himself,the box marked "Pro must be checked and theappropriate information forthat litigant must be supplied inthe spaces provided. Attorney/Firm Name: Jimmy Wagner, Esq. Address: 2055 Flatbush Avenue City: Brooklyn State:NY Zip:11234 Telephone No: 929-477-8889 E-mailAddress: jimmy013@gmail.com Attorney Type: SRetained O Assigned O Government ¡ Pro Se O Pro Hac Vice Party or PartiesRepresented (setforth party number(s) from table above): 1 Attorney/Firm Name: New York Corporate Counsel, Dominique Fatima Saint-Fort Address: 100 Church Street,Room 2-186 City: New York State:NY Zip:10007 Telephone No: 212-356-2444 E-mailAddress: dosaint@law.nyc.gov Attorney Type: ¡ Retained O Assigned O Government O Pro Se ¡ Pro Hac Vice Party or PartiesRepresented (setforth party number(s) from tableabove): 2,3,4,5,&6 Attorney/Firm Name: Address: City:New York State: Zip: Telephone No: E-mailAddress: Attorney Type: ¡ Retained O Assigned O Government O Pro Se O Pro Hac Vice Party or PartiesRepresented (setforth party number(s) from tableabove): Attorney/Firm Name: Address: City: State: Zip: Telephone No: E-mailAddress: Attorney Type: ¡ Retained O Assigned O Government O Pro Se ¡ Pro Hac Vice Party or PartiesRepresented (setforth partynumber(s) from tableabove): Attorney/Firm Name: Address: City: State: Zip: Telephone No: E-mailAddress: Attorney Type: ¡ Retained O Assigned O Government O Pro Se O Pro Hac Vice Party or PartiesRepresented (setforth party number(s) from tableabove): Informational Statement- Civil 8 of 9 FILED: NEW YORK COUNTY CLERK 01/26/2023 01:50 PM INDEX NO. 157230/2022 NYSCEF DOC. NO. 52 7 RECEIVED NYSCEF: 01/26/2023 FILED: NEW YORK COUNTY CLERK 01/11/2023 12:17 PM INDEX NO. 157230/2022 NYSCEF DOC. NO. 48 RECEIVED NYSCEF: 01/11/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK PATRICK MARSTELLER PETITIONER, -against- Index No.: 157230/2022 THE CITY OF NEW YORK, THE NEW YORK CITY POLICE DEPARTMENT, SERGEANTS BENEVOLENT ASSOCIATION OF THE CITY OF NEW YORK, INC., ERIC AFFIDAVIT ADAMS, in his officialcapacity, ASHWIN VASAN, in his official capacity, as Commissioner of the New York City Department of Health and Mental Hygiene, RESPONDENTS. AFFIDAVIT OF MAILING I, Claudia Cabrera, being duly sworn, depose and say that I am over 18 years of age, I 11th reside in the State of New York, thaton the day of January 2023, deponent served the Notice of Appeal, Informational Statement, and the Decision and Order on: New York Corporate Counsel Dominique Fatima Saint-Fort 100 Church Street, Rm 2-186 New York, NY 10007 by depositing a true copy of same enclosed in a post-paid, properly addressed wrapper, in the Official Depository maintained and exclusively controlled by the United States postal service within the State of New York atthe said address(es), respectfully mentioned above, that being the addresses(es) within the statedesignated for that purpose upon the lastpapers served in thisaction or the place where the above then resided or kept offices,according to the best information which can be conveniently obtained. Subscn d and sworn t e or on th ry otaff/Þdblic 576882ccf2848273/Documents/Marsteller^J https://d.does.live.n Patrick/1.10.23 Notice of Appeal.docx comm. F 88 gy 9 of 9 FILED: NEW YORK COUNTY CLERK 01/26/2023 01:50 PM INDEX NO. 157230/2022 NYSCEF DOC. NO. 52 8 RECEIVED NYSCEF: 01/26/2023 Decision and Order appealed from of the Hon. Nancy M. Bannon dated January 9, 2023 FILED: NEW YORK COUNTY CLERK 01/09/2023 03:56 PM INDEX NO. 157230/2022 NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 01/09/2023 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. NANCY M. BANNON PART 42 Justice ---------------------------------------------------------------------------------X INDEX NO. 157230/2022 PATRICK MARSTELLER, MOTION DATE 10/31/2022 Petitioner, MOTION SEQ. NO. 001 -v- THE CITY OF NEW YORK, THE NEW YORK CITY POLICE DEPARTMENT, SERGEANTS BENEVOLENT DECISION, ORDER + ASSOCIATION, INC., ERIC ADAMS, and ASHWIN VASAN, JUDGMENT ON MOTION Respondents. ---------------------------------------------------------------------------------X The following e-filed documents, listed by NYSCEF document number (Motion 001) 2, 24, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44 were read on this motion to/for ARTICLE 78 (BODY OR OFFICER) . Petitioner Patrick Marsteller brings this CPLR article 78 proceeding against respondents The City of New York, The New York City Police Department, The Sergeants Benevolent Association, Inc., New York City Mayor Eric Adams, and Commissioner of the New York City Department of Health and Mental Hygiene Ashwin Vasan to annul a final determination of the respondents dated June 30, 2022, which denied the petitioner’s request for a COVID-19 vaccine exemption based on his alleged religious beliefs. The respondents oppose the petition. The petition is denied. The petitioner began his employment with the New York City Police Department approximately 9 years ago. On October 20, 2021, in response to the COVID-19 pandemic, the Commissioner of the New York City Department of Health and Mental Hygiene issued an order requiring all New York City employees to submit proof of vaccination against COVID-19 no later than November 1, 2021. On October 27, 2021, the petitioner submitted a request for a religious exemption to the vaccine mandate in the form of a 6-page letter describing himself as “a Christian,” no denomination specified, and citing to, inter alia, a variety of Old and New Testament verses, the “Westminster Assembly of Divines,” and “Vatican II,” none of which contain a prohibition against vaccination. The gravamen of the petitioner’s application was that his “conscience tells [him] that receiving the Covid vaccination is wrong.” Specifically, the petitioner contended that he had “doubts about whether or not [he] should be injecting something into [his] body,” that he considered the incentives offered to those who received the vaccines “bribes,” and that his religious beliefs compel him to “protect the physical integrity of [his] Body against unclean foods and injections.” The petitioner further averred that “injecting a medical product that has any connection to aborted fetal cell lines or abortion in any manner … 157230/2022 MARSTELLER, PATRICK vs. THE CITY OF NEW YORK ET AL Page 1 of 3 Motion No.001 1 of 3 FILED: NEW YORK COUNTY CLERK 01/26/2023 01:50 PM INDEX NO. 157230/2022 NYSCEF DOC. NO. 52 9 RECEIVED NYSCEF: 01/26/2023 FILED: NEW YORK COUNTY CLERK 01/09/2023 03:56 PM INDEX NO. 157230/2022 NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 01/09/2023 would be defiling [his body].” Finally, the petitioner stated that he believes the vaccine is associated with “the Mark of the Beast” and that having a CDC vaccine card would be tantamount to his “participating in the Beast’s plan.” On November 30, 2021, the petitioner’s vaccine exemption request was denied in a letter signed by Michael Melocowsky, the Executive Director of the Equal Employment Opportunity Division of the New York City Police Department. The petitioner emailed Executive Director Melocowsky on November 30, 2021, December 1, 2021, and December 3, 2021, seeking further information as to the reason for denial of his request. On February 8, 2022, Executive Director Melocowsky sent the petitioner a further letter stating that this request was denied because his objection was “personal, political, or philosophical,” his statement “does not appear to be written by applicant [or was a] generic statement that does not support candidate’s request,” his statement “does not set forth how religious tenets conflicts [sic] with vaccine requirement,” and the petitioner had “[n]o demonstrated history of vaccination/medicine refusal.” On February 14, 2022, the petitioner appealed the denial of his exemption request. The petitioner submitted a further 3-page letter in support of his appeal reiterating the assertions in his original application, highlighting his lack of allegiance to “the Pope or any ‘religious leader,’” framing his objection as “[his] own personal conflict of conscience,” and adding that all prior vaccinations he received did not violate his religious beliefs because he “never experienced conflict of conscience” in connection with a vaccine prior to the COVID-19 vaccine. On June 30, 2022, the City of New York Reasonable Accommodation Appeals Panel (the Citywide Panel) denied the petitioner’s appeal and affirmed the New York City Police Department’s denial of the petitioner’s reasonable accommodation request because the petitioner’s appeal “Does Not Meet Criteria.” On July 12, 2022, the petitioner applied for vested separation retirement, which was set to take effect on October 28, 2022. On August 24, 2022, the petitioner commenced this proceeding. It is well settled that judicial review of an administrative determination pursuant to CPLR article 78 is limited to whether the determination was arbitrary and capricious or rationally based on the record. See Matter of Peckham v Calogero, 12 NY3d 424 (2009); Pell v Bd. of Educ., 34 NY2d 222 (1974); see also Hushes v Doherty, 5 NY3d 100 (2005). Disposition of the proceeding is limited to “the facts and record adduced before the agency” when the administrative determination was rendered. See Fanelli v New York City Conciliation & Appeals Bd., 90 AD2d 756, 757 (1st Dept. 1982). The court finds that the respondents did not act arbitrarily or capriciously in denying the petitioner’s application for a vaccination exemption. The February 8, 2022, letter from Executive Director Melocowsky clearly identifies the sound reasons for the denial of such application, including the clear philosophical nature of the petitioner’s objections, the petitioner’s failure to provide a cogent explanation why his religion or religious beliefs conflict with vaccination, and the petitioner’s failure to demonstrate any history of refusing vaccines or other medicine for religious reasons. The Citywide Panel’s June 30, 2022, denial of the petitioner’s appeal 157230/2022 MARSTELLER, PATRICK vs. THE CITY OF NEW YORK ET AL Page 2 of 3 Motion No.001 2 of 3 FILED: NEW YORK COUNTY CLERK 01/26/2023 01:50 PM INDEX NO. 157230/2022 NYSCEF DOC. NO. 52 10 RECEIVED NYSCEF: 01/26/2023 FILED: NEW YORK COUNTY CLERK 01/09/2023 03:56 PM INDEX NO. 157230/2022 NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 01/09/2023 confirms Executive Director Melocowsky’s rationale. The explanation provided for denial is sufficient to meet the threshold for this court’s deference as a matter of law. The petitioner’s remaining challenges to the denial of his vaccine exemption request are without merit for the reasons explained in the respondents’ papers. Accordingly, it is ORDERED and ADJUDGED that the petition is denied, and the proceeding is dismissed in its entirety. This constitutes the Decision, Order, and Judgment of the court. 1/9/2023 $SIG$ DATE CHECK ONE: X CASE DISPOSED NON-FINAL DISPOSITION GRANTED X DENIED GRANTED IN PART OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE 157230/2022 MARSTELLER, PATRICK vs. THE CITY OF NEW YORK ET AL Page 3 of 3 Motion No.001 3 of 3 FILED: NEW YORK COUNTY CLERK 01/26/2023 01:50 PM INDEX NO. 157230/2022 NYSCEF DOC. NO. 52 11 RECEIVED NYSCEF: 01/26/2023 Notice of Petition dated August 24, 2022 FILED: NEW YORK COUNTY CLERK 08/24/2022 12:29 PM INDEX NO. 157230/2022 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 08/24/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK X PATRICK MARSTELLER, Index No. Petitioner, FOR A JUDGEMENT PURSUANT TO ARTICLE 78 NOTICE OF PETITION -against- THE CITY OF NEW YORK, THE NEW YORK CITY POLICE DEPARTMENT, SERGEANTS BENEVOLENT ASSOCIATION, INC., ERIC ADAMS, in his official capacity as Mayor of New York City, ASHWIN VASAN, inhis official capacity as Commissioner of the New York City Department of Health and Mental Hygiene, Respondent(s) X TO THE RESPONDENTS: PLEASE TAKE NOTICE thatupon the annexed petition of PATRICK MARSTELLER, verified on August 24, 2022, the exhibits annexed thereto, and together with the accompanying Memorandum of Law in Support of the Article 78 Petition, an application will be made to thisCourt, at theMotion Support Office courtroom, 60 Centre Steet,Room 130, New York, New York, on the 30th day of September, 2022 at 9:30 am or as soon thereafter as counsel can be heard, for an Order and Judgment pursuant to Article 78 of the Civil Practice Law and Rules: 1. Annulling the agency determination of June 30,2022 which denied Petitioner's request fora reasonable accommodation and terminated the Petitioner; 2. Granting Petitioner's reasonable accommodation from the vaccine mandate; 1 of 2 FILED: NEW YORK COUNTY CLERK 01/26/2023