KOLA v. CITY OF NEW YORK (2026)

Order, Supreme Court, New York County (Shlomo S. Hagler, J.), entered on or about January 11, 2024, which granted defendants’ motion to dismiss the complaint and denied plaintiff's cross-motion for leave to amend the complaint, unanimously affirmed, without costs.

As a threshold matter, we find that the claims were properly dismissed as against defendant police department, which is not an entity amenable to suit (NY City Charter § 396;  Troy v. City of New York, 160 A.D.3d 410, 411, 70 N.Y.S.3d 842 [1st Dept. 2018]).

Supreme Court also properly held that collateral estoppel bars plaintiff's claims alleging violations of the New York State and New York City Human Rights Laws (State HRL and City HRL) and aiding and abetting under the City HRL (see Parker v. Blauvelt Volunteer Fire Co., 93 N.Y.2d 343, 349, 690 N.Y.S.2d 478, 712 N.E.2d 647 [1999]).  A prior decision denying CPLR article 78 relief bars a subsequent plenary action where, as here, the same issues were raised, fully litigated, and necessarily decided (see Rosenthal v. Roosevelt Is. Operating Corp., 221 A.D.3d 551, 551–552, 200 N.Y.S.3d 341 [1st Dept. 2023];  Matter of Khan v. New York City Health & Hosps. Corp., 144 A.D.3d 600, 602, 43 N.Y.S.3d 271 [1st Dept. 2016], lv denied 29 N.Y.3d 905, 2017 WL 1591009 [2017]).

Even if the above claims were not barred, the complaint fails to state a cause of action (CPLR 3211[a][7]).  The religious discrimination claims fail to connect plaintiff's alleged religious beliefs to the requirement for vaccination (see Matos v. Discovery Communications, LLC, 750 F.Supp.3d 307, 320 [S.D.N.Y.2024]).  Plaintiff's “conclusory assertions” of discrimination are “unsupported by sufficient factual allegations” (Currid v. City of New York, 241 A.D.3d 777, 779, 241 N.Y.S.3d 341 [2d Dept. 2025]).

Moreover, plaintiff cannot “ ‘establish[ ] that the City's process for resolving requests for accommodations to the vaccine mandate fell short of the requirements’ ” of either the City or State HRL (Matter of Ansbro v. Nigro, 235 A.D.3d 525, 525, 228 N.Y.S.3d 167 [1st Dept. 2025], quoting Matter of Marsteller v. City of New York, 217 A.D.3d 543, 545, 192 N.Y.S.3d 18 [1st Dept. 2023], appeal dismissed and lv denied 41 N.Y.3d 960, 208 N.Y.S.3d 529, 232 N.E.3d 207 [2024];  see also Matter of Bryan v. Board of Educ. of the City Sch. Dist. of the City of N.Y., 222 A.D.3d 473, 473, 202 N.Y.S.3d 59 [1st Dept. 2023]).  This Court's precedent upheld the procedures being challenged herein (see Matter of Ansbro, 235 A.D.3d at 526, 228 N.Y.S.3d 167;  Matter of Rysiejko v. City of New York, 232 A.D.3d 432, 433, 222 N.Y.S.3d 404 [1st Dept. 2024];  Matter of Lynch v. Board of Educ. of the City Sch. Dist. of the City of N.Y., 221 A.D.3d 456, 458, 198 N.Y.S.3d 78 [1st Dept. 2023], lv denied 42 N.Y.3d 905, 2024 WL 4229212 [2024];  Matter of Hogue v. Board of Educ. of the City Sch. Dist. of the City of N.Y., 220 A.D.3d 416, 417, 197 N.Y.S.3d 136 [1st Dept. 2023], lv denied 42 N.Y.3d 905, 2024 WL 4229204 [2024]).

The aiding and abetting claim fails because there is no underlying violation (see Weir v. Montefiore Med. Ctr., 208 A.D.3d 1122, 1123, 175 N.Y.S.3d 498 [1st Dept. 2022], lv denied 39 N.Y.3d 911, 2023 WL 3066651 [2023]).

Plaintiff's remaining claims were also properly dismissed for failure to state a cause of action.  The claim for declaratory relief is moot, since the City rescinded the vaccine mandate in February 2023 (Matter of New York City Mun. Labor Comm. v. Adams, 222 A.D.3d 437, 438, 199 N.Y.S.3d 67 [1st Dept. 2023]).  It is also duplicative of the City HRL and State HRL claims (see Upfront Megatainment, Inc. v. Thiam, 215 A.D.3d 576, 578, 189 N.Y.S.3d 50 [1st Dept. 2023]).  The claim for intentional infliction of emotional distress is barred as against defendant City on public policy grounds (Dillon v. City of New York, 261 A.D.2d 34, 41, 704 N.Y.S.2d 1 [1st Dept. 1999]), and it otherwise fails to allege extreme and outrageous conduct by the individual defendant (see Chanko v. American Broadcasting Cos. Inc., 27 N.Y.3d 46, 57, 29 N.Y.S.3d 879, 49 N.E.3d 1171 [2016];  see also Matter of O'Reilly v. Board of Educ. of the City Sch. Dist. of the City of N.Y., 42 N.Y.3d 986, 990–991, 221 N.Y.S.3d 28, 246 N.E.3d 399 [2024]).

As for the Free Exercise claim, plaintiff “has no private right of action to recover damages for violations of the New York State Constitution, since the alleged wrongs could be addressed by alternative remedies, including those pursued” here under the City HRL and State HRL (Farah v. City of New York, 241 A.D.3d 1435, 1438, 243 N.Y.S.3d 80 [2d Dept. 2025]).

The breach of contract claim fails for lack of standing.  Although plaintiff alleges that his employment was terminated in violation of his employment contract, the Police Benevolent Association is the designated collective bargaining unit for NYPD police officers such as plaintiff (Police Benevolent Assn. of the City of N.Y. v. de Blasio, 2022 N.Y. Misc. LEXIS 11317, *1 [Sup. Ct., Richmond County, Feb. 16, 2022, index No. 85229/21];  see also Matter of Police Benevolent Assn. of the City of N.Y., Inc. v. City of New York, 215 A.D.3d 463, 185 N.Y.S.3d 679 [1st Dept. 2023], lv denied 40 N.Y.3d 906, 2023 WL 6885799 [2023]).  Thus, plaintiff has no individual right to enforce the collective bargaining agreement (see Matter of Board of Educ., Commack Union Free School Dist. v. Ambach, 70 N.Y.2d 501, 508, 522 N.Y.S.2d 831, 517 N.E.2d 509 [1987], cert denied 485 U.S. 1034, 108 S.Ct. 1593, 99 L.Ed.2d 908 [1988]).

Leave to amend the complaint was providently denied as futile (CPLR 3025[b]).