IN RE: Elizabeth LEBOWITZ (2023)

Judgment (denominated an order), Supreme Court, New York County (Laurence L. Love, J.), entered October 11, 2022, denying the petition to annul a determination of the City of New York Reasonable Accommodation Appeals Panel (the Citywide Panel), dated February 15, 2022, which denied petitioner's request for a religious exemption from the COVID–19 vaccination requirement for employees of the New York City Department of Education (DOE), granting respondents Board of Education of the City School District of the City of New York and Community School District 18 of the Board of Education of the City of New York's cross-motion to dismiss the petition, and dismissing the proceeding brought pursuant to CPLR article 78, unanimously affirmed, without costs.

The denial of petitioner's request for a religious exemption and reasonable accommodations for her job as a school teacher was not arbitrary and capricious (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 N.Y.2d 222, 231, 356 N.Y.S.2d 833, 313 N.E.2d 321 [1974]).  The DOE's Position Statement explained that allowing petitioner to teach remotely, while the DOE was resuming in-person instruction, would impose an undue hardship on the agency.  The DOE elaborated that accommodating petitioner would result in petitioner's inability to perform her essential functions as a schoolteacher.  Moreover, given that more than 3,300 DOE employees had requested religious exemptions, granting an exemption to the employees would impose on the DOE significant costs and operational difficulties associated with creating alternative assignments for the exempted employees, and retaining and hiring additional staff to perform the exempted employees’ essential job functions (see Administrative Code of City of N.Y. § 8–107[3][b]).  Thus, there was a rational basis for the denial of petitioner's request.

That the Position Statement was unsigned and undated hearsay is of no immaterial as “[h]earsay evidence can be the basis for an administrative determination” (Matter of Gray v. Adduci, 73 N.Y.2d 741, 742, 536 N.Y.S.2d 40, 532 N.E.2d 1268 [1988];  see also Matter of Church of Scientology of N.Y. v. Tax Commn. of City of N.Y., 120 A.D.2d 376, 379, 501 N.Y.S.2d 863 [1st Dept. 1986], appeal dismissed 68 N.Y.2d 807, 506 N.Y.S.2d 1038, 498 N.E.2d 438 [1986], lv dismissed 69 N.Y.2d 659, 511 N.Y.S.2d 838, 503 N.E.2d 1375 [1986]).  Contrary to petitioner's contention, this Court need not limit our review to the language in the Citywide Panel's decision, as the Panel noted that it had reviewed the DOE's determination as well as the documentation submitted to the agency, and that it based its decision on that review (see Matter of Marsteller v. City of New York, 217 A.D.3d 543, 544, 192 N.Y.S.3d 18 [1st Dept. 2023]).  Petitioner's contention that the DOE failed to engage in a cooperative dialogue is unavailing (see id. at 545, 192 N.Y.S.3d 18;  see also Administrative Code of City of N.Y. § 8–107[28][a]).

We have considered petitioner's remaining contentions and find them unavailing.