Dougherty v City of New York 2025 NY Slip Op 30080(U) January 7, 2025 Supreme Court, New York County Docket Number: Index No. 155088/2023 Judge: J. Machelle Sweeting Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. INDEX NO. 155088/2023 NYSCEF DOC. NO. 54 RECEIVED NYSCEF: 01/08/2025
SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 62 -----------------------------------------------------------------------------------X TIMOTHY DOUGHERTY, INDEX NO. 155088/2023
Plaintiff, 08/04/2023, MOTION DATE 08/10/2023 -v- THE CITY OF NEW YORK, THE NEW YORK CITY MOTION SEQ. NO. 002 003 POLICE DEPARTMENT, MICHAEL MELOCOWSKY, JOHN DOES 1-10 DECISION + ORDER ON Defendants. MOTION -----------------------------------------------------------------------------------X
The following e-filed documents, listed by NYSCEF document number (Motion 002) 21, 22, 23, 24, 25, 26, 27, 28, 30, 33, 34, 35, 36, 37, 38, 39, 40, 41, 47, 49 were read on this motion to/for DISMISSAL .
The following e-filed documents, listed by NYSCEF document number (Motion 003) 12, 13, 14, 15, 16, 17, 18, 29, 31, 42, 43, 44, 45, 46, 48, 50, 51 were read on this motion to/for DISMISS .
Motion Sequence Numbers 002 and 003 are consolidated herein for disposition.
Plaintiff, a Catholic New York City police officer, commenced this action against
defendants the City of New York, the New York City Police Department (“NYPD”) and NYPD
employee Michael Melocowsky (“Melocowsky”) (collectively “defendants”) alleging that they
discriminated against plaintiff by denying his request for a religious accommodation from the
City’s Covid-19 vaccine mandate. Defendants move to dismiss, pursuant to Civil Practice Law
and Rules (“CPLR”) 3211[a][7]) for failure to state a claim, and plaintiff cross-moves to amend
the complaint.
155088/2023 DOUGHERTY, TIMOTHY vs. THE CITY OF NEW YORK ET AL Page 1 of 7 Motion No. 002 003
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BACKGROUND
The following facts are taken from the complaint (NYSCEF Doc. No. 14) and accepted as
true for purposes of this motion (Tax Equity Now N.Y. LLC v NYC, 42 NY3d 1, 12 [2024]). Plaintiff
has been a New York City police officer since 2015 (id., ¶¶13-14). During that time, he has never
been penalized, suspended or found to be insubordinate and the NYPD never requested that
plaintiff obtain a vaccine or mentioned that there was a vaccine requirement (id., ¶¶ 15-16).
However, at some point in 2021, the NYPD stated that he needed to be vaccinated against
Covid-19 (id., ¶ 17). In response, on or around October 26, 2021, plaintiff applied for a religious
accommodation, explaining that he was a devout Catholic, and pursuant to the tenants of his faith,
he believed he was created in God’s image (id., ¶ 17, 20, 21). The NYPD denied the request on
June 30, 2022 (id., ¶ 29). Plaintiff asserts that this denial was predetermined because of his faith
(id., ¶ 30). He alleges that defendant Melocowsky instructed the department that there was no need
to engage in cooperative dialogue with anyone and did not do so with petitioner (id., ¶¶ 25, 31).
Plaintiff further claims that the NYPD never conducted a study regarding pandemic safety issues
and had no information regarding the safety implications of weekly testing when it issued the
denial (id., ¶¶ 22-23). And while many other workers were routinely allowed to work if they wore
masks or took weekly tests, petitioner was never offered these accommodations despite being
willing to accept them (id., ¶¶ 26-27).
As a result of the NYPD’s policy, plaintiff was told that he would be abruptly terminated
if he refused to take the Covld-19 vaccine (id., ¶ 32). Plaintiff contends that he was forced to take
the vaccine in violation of his religious beliefs due to the threat of losing his job, his health
insurance and his livelihood (id., ¶ 1). In the complaint, plaintiff alleges: (1) violations of the
New York State Human Rights Law, New York Executive Law § 296 (“SHRL”); (2) violations of
155088/2023 DOUGHERTY, TIMOTHY vs. THE CITY OF NEW YORK ET AL Page 2 of 7 Motion No. 002 003
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the New York City Human Rights Law, New York City Administrative Code § 8- 107 (“CHRL”);
(3) violations of the free exercise clause of the New York State Constitution; (4) intentional
infliction of emotional distress; and (5) aiding and abetting as against defendant Melocowsky. In
addition to attorney’s fees, plaintiff seeks punitive damages.
Plaintiff filed a notice of claim on September 20, 2022, and commenced this action on June
7, 2023, by filing a summons and complaint. In moving to dismiss, defendants argue that: (1) the
action should have been brought as an Article 78 and is time-barred; (2) the NYPD is not a suable
entity; (3) plaintiff cannot sue individual defendants under the SHRL; (4) the complaint fails to
assert actionable personal involvement by Melocowsky; (5) there is no claim for employment
discrimination under the New York State Constitution; and (6) plaintiff fails to allege he suffered
any cognizable harm.
DISCUSSION
Plaintiff’s arguments are identical to those rejected in other recent actions challenging
New York’s vaccine mandate and must be dismissed as well. Although defendants’ statute of
limitations defense is by itself sufficient to resolve this case, all of plaintiff’s other contentions
are briefly discussed here for the sake of completeness.
Statute of Limitations
CPLR 217(1) provides that “a proceeding against a body or officer must be commenced
within four months after the determination to be reviewed becomes final and binding upon the
petitioner.” This action was not brought until nearly a year after plaintiff was notified that his
request for a religious accommodation had been denied. Accordingly, the action is untimely
155088/2023 DOUGHERTY, TIMOTHY vs. THE CITY OF NEW YORK ET AL Page 3 of 7 Motion No. 002 003
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(Farca v Bd. of Educ. of City Sch. Dist. of NYC, 220 AD3d 567, 567 [1st Dept 2023], lv denied,
41 NY3d 909 [2024]). See also, Campagna v NYPD, 218 NYS3d 331 (Mem), 2024 N.Y. Slip
Op. 05046 [1st Dept 2024]; Almodovar v City of New York, 2024 WL 1819065, *2 [Sup Ct, NY
Co 2024]; Goolsby v NYC, 83 Misc 3d 445 [Sup Ct, NY Co 2024]; Nieves v NYPD, 2024 WL
4373366, *2 (Sup Ct, Kings Co]; Farah v NYC, 2024 WL 3545728, *3-4 [Sup Ct, Kings Co
2024].
NYPD as a Suable Entity
Pursuant to Chapter 17, Section 396 of the New York City Charter, “[a]ll actions and
proceedings for the recovery of penalties for the violation of any law shall be brought in the
name of the City of New York and not in that of any agency, except where otherwise provided
by law.” City agencies are thus not subject to suit (see Komatsu v NYC Hum. Res. Admin.,
195 AD3d 417, 417 [1st Dept 2021]) and the NYPD is no exception (Carpenter v NYCHA, 146
A.D.3d 674, 44 [1st Dept 2017]; Hunold v NYC, 2024 WL 4140057. *6-7 [Sup Ct, NY Co
2024]). The Court does not find persuasive plaintiff’s argument that the CHRL’s definition of an
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Dougherty v City of New York 2025 NY Slip Op 30080(U) January 7, 2025 Supreme Court, New York County Docket Number: Index No. 155088/2023 Judge: J. Machelle Sweeting Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. INDEX NO. 155088/2023 NYSCEF DOC. NO. 54 RECEIVED NYSCEF: 01/08/2025
SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 62 -----------------------------------------------------------------------------------X TIMOTHY DOUGHERTY, INDEX NO. 155088/2023
Plaintiff, 08/04/2023, MOTION DATE 08/10/2023 -v- THE CITY OF NEW YORK, THE NEW YORK CITY MOTION SEQ. NO. 002 003 POLICE DEPARTMENT, MICHAEL MELOCOWSKY, JOHN DOES 1-10 DECISION + ORDER ON Defendants. MOTION -----------------------------------------------------------------------------------X
The following e-filed documents, listed by NYSCEF document number (Motion 002) 21, 22, 23, 24, 25, 26, 27, 28, 30, 33, 34, 35, 36, 37, 38, 39, 40, 41, 47, 49 were read on this motion to/for DISMISSAL .
The following e-filed documents, listed by NYSCEF document number (Motion 003) 12, 13, 14, 15, 16, 17, 18, 29, 31, 42, 43, 44, 45, 46, 48, 50, 51 were read on this motion to/for DISMISS .
Motion Sequence Numbers 002 and 003 are consolidated herein for disposition.
Plaintiff, a Catholic New York City police officer, commenced this action against
defendants the City of New York, the New York City Police Department (“NYPD”) and NYPD
employee Michael Melocowsky (“Melocowsky”) (collectively “defendants”) alleging that they
discriminated against plaintiff by denying his request for a religious accommodation from the
City’s Covid-19 vaccine mandate. Defendants move to dismiss, pursuant to Civil Practice Law
and Rules (“CPLR”) 3211[a][7]) for failure to state a claim, and plaintiff cross-moves to amend
the complaint.
155088/2023 DOUGHERTY, TIMOTHY vs. THE CITY OF NEW YORK ET AL Page 1 of 7 Motion No. 002 003
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BACKGROUND
The following facts are taken from the complaint (NYSCEF Doc. No. 14) and accepted as
true for purposes of this motion (Tax Equity Now N.Y. LLC v NYC, 42 NY3d 1, 12 [2024]). Plaintiff
has been a New York City police officer since 2015 (id., ¶¶13-14). During that time, he has never
been penalized, suspended or found to be insubordinate and the NYPD never requested that
plaintiff obtain a vaccine or mentioned that there was a vaccine requirement (id., ¶¶ 15-16).
However, at some point in 2021, the NYPD stated that he needed to be vaccinated against
Covid-19 (id., ¶ 17). In response, on or around October 26, 2021, plaintiff applied for a religious
accommodation, explaining that he was a devout Catholic, and pursuant to the tenants of his faith,
he believed he was created in God’s image (id., ¶ 17, 20, 21). The NYPD denied the request on
June 30, 2022 (id., ¶ 29). Plaintiff asserts that this denial was predetermined because of his faith
(id., ¶ 30). He alleges that defendant Melocowsky instructed the department that there was no need
to engage in cooperative dialogue with anyone and did not do so with petitioner (id., ¶¶ 25, 31).
Plaintiff further claims that the NYPD never conducted a study regarding pandemic safety issues
and had no information regarding the safety implications of weekly testing when it issued the
denial (id., ¶¶ 22-23). And while many other workers were routinely allowed to work if they wore
masks or took weekly tests, petitioner was never offered these accommodations despite being
willing to accept them (id., ¶¶ 26-27).
As a result of the NYPD’s policy, plaintiff was told that he would be abruptly terminated
if he refused to take the Covld-19 vaccine (id., ¶ 32). Plaintiff contends that he was forced to take
the vaccine in violation of his religious beliefs due to the threat of losing his job, his health
insurance and his livelihood (id., ¶ 1). In the complaint, plaintiff alleges: (1) violations of the
New York State Human Rights Law, New York Executive Law § 296 (“SHRL”); (2) violations of
155088/2023 DOUGHERTY, TIMOTHY vs. THE CITY OF NEW YORK ET AL Page 2 of 7 Motion No. 002 003
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the New York City Human Rights Law, New York City Administrative Code § 8- 107 (“CHRL”);
(3) violations of the free exercise clause of the New York State Constitution; (4) intentional
infliction of emotional distress; and (5) aiding and abetting as against defendant Melocowsky. In
addition to attorney’s fees, plaintiff seeks punitive damages.
Plaintiff filed a notice of claim on September 20, 2022, and commenced this action on June
7, 2023, by filing a summons and complaint. In moving to dismiss, defendants argue that: (1) the
action should have been brought as an Article 78 and is time-barred; (2) the NYPD is not a suable
entity; (3) plaintiff cannot sue individual defendants under the SHRL; (4) the complaint fails to
assert actionable personal involvement by Melocowsky; (5) there is no claim for employment
discrimination under the New York State Constitution; and (6) plaintiff fails to allege he suffered
any cognizable harm.
DISCUSSION
Plaintiff’s arguments are identical to those rejected in other recent actions challenging
New York’s vaccine mandate and must be dismissed as well. Although defendants’ statute of
limitations defense is by itself sufficient to resolve this case, all of plaintiff’s other contentions
are briefly discussed here for the sake of completeness.
Statute of Limitations
CPLR 217(1) provides that “a proceeding against a body or officer must be commenced
within four months after the determination to be reviewed becomes final and binding upon the
petitioner.” This action was not brought until nearly a year after plaintiff was notified that his
request for a religious accommodation had been denied. Accordingly, the action is untimely
155088/2023 DOUGHERTY, TIMOTHY vs. THE CITY OF NEW YORK ET AL Page 3 of 7 Motion No. 002 003
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(Farca v Bd. of Educ. of City Sch. Dist. of NYC, 220 AD3d 567, 567 [1st Dept 2023], lv denied,
41 NY3d 909 [2024]). See also, Campagna v NYPD, 218 NYS3d 331 (Mem), 2024 N.Y. Slip
Op. 05046 [1st Dept 2024]; Almodovar v City of New York, 2024 WL 1819065, *2 [Sup Ct, NY
Co 2024]; Goolsby v NYC, 83 Misc 3d 445 [Sup Ct, NY Co 2024]; Nieves v NYPD, 2024 WL
4373366, *2 (Sup Ct, Kings Co]; Farah v NYC, 2024 WL 3545728, *3-4 [Sup Ct, Kings Co
2024].
NYPD as a Suable Entity
Pursuant to Chapter 17, Section 396 of the New York City Charter, “[a]ll actions and
proceedings for the recovery of penalties for the violation of any law shall be brought in the
name of the City of New York and not in that of any agency, except where otherwise provided
by law.” City agencies are thus not subject to suit (see Komatsu v NYC Hum. Res. Admin.,
195 AD3d 417, 417 [1st Dept 2021]) and the NYPD is no exception (Carpenter v NYCHA, 146
A.D.3d 674, 44 [1st Dept 2017]; Hunold v NYC, 2024 WL 4140057. *6-7 [Sup Ct, NY Co
2024]). The Court does not find persuasive plaintiff’s argument that the CHRL’s definition of an
employer somehow “otherwise provides” that the NYPD may be sued or overrides the City
Charter and the cases interpreting it. Rather, only an explicit exemption for an agency, such as
the one applicable to the City’s Department of Health and Mental Hygiene, under section 564 of
the Charter, would make an agency amenable to suit (see Farah, 2024 WL 3545728, *4 fn.18).
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Religious Discrimination
Plaintiff has failed to state a claim for religious discrimination under the SHRL and the
CHRL. “A plaintiff states a claim of invidious discrimination under the State and City HRLs by
alleging (1) that he/she is a member of a protected class, (2) that he/she was qualified for the
position, (3) that he/she was subjected to an adverse employment action (under State HRL) or
he/she was treated differently or worse than other employees (under City HRL), and (4) that the
adverse or different treatment occurred under circumstances giving rise to an inference of
discrimination” (Harrington v NYC, 157 AD3d 582, 584 [1st Dept 2018]). Although plaintiff
alleges that he is a member of a protected religious class, he fails to allege that he was harmed by
any adverse action taken against him, that he was treated differently than any similarly situated
employee,1 or that there was any discriminatory conduct based on his religion (see Almodovar,
2024 WL 1819065, *2-3; Farah, 2024 WL 3545728, *4). Additionally, defendant Melocowsky
cannot be sued under the SHRL because it only prohibits discrimination by “employers”, not
individual employees (see Kwong v NYC, 204 AD3d 442, 445 [1st Dept 2022]). Nor has plaintiff
pled in a non-conclusory fashion that Melocowsky participated or aided or abetted any
discriminatory conduct (see Almodovar, 2024 WL 1819065, *6; Hunold, 2024 WL 4140057, *8).
Finally, plaintiff’s claim that the City failed to engage in cooperative dialogue with him regarding
his accommodation is clearly foreclosed by Marsteller v NYC, 217 AD3d 543, 544, [1st Dept
2023]; lv denied 41 NY3d 960 [2024]; see Rysiejko v NYC, 2024 WL 4701599 [1st Dept 2024]).
1 Here, plaintiff states generally, with nothing more as to how he was similarly situated to other workers who he claims were permitted to work if they wore masks or took weekly tests. 155088/2023 DOUGHERTY, TIMOTHY vs. THE CITY OF NEW YORK ET AL Page 5 of 7 Motion No. 002 003
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Discrimination under the New York State Constitution
As general matter, there is no private right of action under the New York State Constitution
(Berrio v NYC, 212 AD3d 569, 569-70 [1st Dept 2023]; Almodovar, 2024 WL 1819065, *5;
Hunold, 2024 WL 4140057, *7; Farah, 2024 WL 3545728, *5). Such a violation may be pursued
only where no alternative remedy is available (Lyles v State, 2 AD3d 694, 695 [2d Dept 2003],
aff’d, 3 NY3d 396 [2004]; Hunold, 2024 WL 4140057, *8; Farah, 2024 WL 3545728, *5). Here,
Article 78, the SHRL and HHRL would have provided plaintiff with alternative relief had they
been timely and sufficiently pled.
Intentional Infliction of Emotional Distress
The elements of a claim for intentional infliction of emotional distress are “(i) extreme and
outrageous conduct; (ii) intent to cause, or disregard of a substantial probability of causing, severe
emotional distress; (iii) a causal connection between the conduct and injury; and (iv) severe
emotional distress” (Chanko v Am. Broad. Companies Inc., 27 NY3d 46, 56 [2016], quoting
Howell v New York Post Co., 81 NY2d 115, 123 [1993]). The City’s imposition of the vaccine
requirement, even though accompanied by the threat of termination for non-compliance, does not
meet the extremely high standard for the tort (see Hunold, 2024 WL 4140057, *8; Smith v NYC,
2024 WL 3419349, *3 [Sup Ct, Kings Co 2024]).
Motion to Amend
The motion to amend is denied as futile, insofar as the amended complaint “ reiterates the
same conclusory and unsubstantiated allegations without addressing any of the deficiencies
raised by defendant in its motion papers” (Goolsby, 83 Misc 3d 445, 463).
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CONCLUSION
For the reasons set forth herein, it is hereby:
ORDERED that defendants’ motion to dismiss plaintiff's complaint in its entirety is
granted; and it is further
ORDERED that plaintiff's cross-motion for leave to serve an amended complaint is
denied.
January 7, 2025 $SIG$ DATE J. MACHELLE SWEETING, J.S.C. CHECK ONE: X CASE DISPOSED NON-FINAL DISPOSITION
GRANTED DENIED GRANTED IN PART X OTHER
APPLICATION: SETTLE ORDER SUBMIT ORDER
CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE
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