FILED: KINGS COUNTY CLERK 04/09/2024 11:03 PM
`NYSCEF DOC. NO. 137
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`INDEX NO. 512787/2023
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`RECEIVED NYSCEF: 04/09/2024
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`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF KINGS
`
`
`Index No.: 512787/2023
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`
`
`
`DELANO CONNOLLY,
`
` Petitioner,
`
`For a Judgment under Article 78
`of the Civil Practice Law and Rules
`
`
`
`NEW YORK CITY ADMINISTRATION FOR
`CHILDREN’S SERVICES and CITY OF NEW
`YORK,
`
` Respondents.
`
`v.
`
`
`
`
`MEMORANDUM OF LAW IN OPPOSITION TO RESPONDENTS’ CROSS-MOTION
`TO DISMISS THE AMENDED PETITION
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`INDEX NO. 512787/2023
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`RECEIVED NYSCEF: 04/09/2024
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`TABLE OF CONTENTS
`
`PRELIMINARY STATEMENT .................................................................................................... 1
`
`RELEVANT FACTS ...................................................................................................................... 1
`
`A.
`
`B.
`
`C.
`
`D.
`
`E.
`
`F.
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`Petitioner is Granted and Excels Working with Reasonable Accommodations ..... 1
`
`Respondents Rescind Petitioner’s Reasonable Accommodations Without Any
`Legitimate Justification ........................................................................................... 2
`
`Petitioner Appeals Respondents’ Baseless Denial of His Request for
`Reasonable Accommodations ................................................................................. 3
`
`Respondents Prohibit Petitioner from Returning to Work in an Attempt to
`Manufacture a Pretextual Justification for Terminating His Employment ............. 4
`
`The Court Enjoins Respondents from Terminating Petitioner’s Employment
`and Prevents Petitioner from Suffering Irreparable Harm ...................................... 5
`
`The Symptoms of Petitioner’s Disabilities Flare Up After Returning to
`Work and Respondents Deny Petitioner’s Request a Remote Work
`Accommodation ...................................................................................................... 5
`
`ARGUMENT .................................................................................................................................. 6
`
`I.
`
`II.
`
`LEGAL STANDARDS ...................................................................................................... 6
`
`RESPONDENTS’ MOTION TO DISMISS SHOULD BE DENIED ................................ 6
`
`A.
`
`B.
`
`C.
`
`The Amended Petition Was Properly Verified ....................................................... 7
`
`Petitioner Has Standing to Pursue His Article 78 Claims..................................... 10
`
`Petitioner Timely Filed His Article 78 Claims ..................................................... 17
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`CONCLUSION ............................................................................................................................. 21
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`INDEX NO. 512787/2023
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`RECEIVED NYSCEF: 04/09/2024
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`TABLE OF AUTHORITIES
`
`Cases Page(s)
`
`Matter of Assn. for a Better Long Is., Inc. v New York State Dept. of Envtl.
`Conservation,
`23 NY3d 1 (2014) ..............................................................................................................10, 11
`
`Betzler v. Carey,
`109 Misc. 2d 881 (Sup. Ct. 1981) ..........................................................................................7, 8
`
`Buffalo Council of Supervisors & Adm’r s, Loc. #10 by Barton v. Cash,
`174 A.D.3d 1462, 106 N.Y.S.3d 484 (2019) .............................................................................7
`
`Coleman v. Daines,
`19 N.Y.3d 1087 (2012) ............................................................................................................15
`
`Matter of Coleman v. Prendergast,
`93 AD3d 720 (2d Dept 2012) ............................................................................................19, 20
`
`Collins v. AA Trucking Renting Corp.,
`209 AD2d 363 (1st Dept 1994) ..................................................................................................9
`
`Fahy v City of New York,
`79 Misc 3d 1219(A) (Sup Ct 2023) .........................................................................................15
`
`Feinman v Mennan Oil Co., Inc.,
`248 AD2d 503 (2d Dept 1998) ..................................................................................................9
`
`Furtow v Jenstro Enterprises, Inc.,
`75 AD3d 494 (2d Dept 2010) ....................................................................................................9
`
`Isbell v John Crane, Inc.,
`30 F Supp 3d 725 (ND Ill 2014) ..............................................................................................12
`
`Kalpin v Accettella,
`160 AD2d 909 (2d Dept 1990) ................................................................................................20
`
`Matter of Kaneev v City of New York Envtl. Control Bd.,
`149 AD3d 742 (2d Dept 2017) ................................................................................................20
`
`Matter of Magat v. County of Rockland,
`265 AD2d 483 (2d Dept 1999) ................................................................................................20
`
`Matter of Neftali D.,
`85 NY2d 631 (1995) ................................................................................................................10
`
`New York & Atl. Ry. Co. v. The Town of Babylon,
`2013 N.Y. Slip Op. 31796(U) (N.Y. Sup Ct, Suffolk County 2013) .........................................6
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`RECEIVED NYSCEF: 04/09/2024
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`Razzano v. Remsenburg-Speonk UFSD,
`162 AD3d 1043 (2d Dept 2018) ..............................................................................................11
`
`Matter of Simon v New York City Tr. Auth.,
`34 AD3d 823 (2d Dept 2006) ..................................................................................................19
`
`U.S. Bank N.A. v Langner,
`168 AD3d 1021 (2d Dept 2019) ..............................................................................................10
`
`Walton v. New York State Dept. of Correctional Services,
`8 NY3d 186 (2007) ......................................................................................................18, 19, 20
`
`Matter of Yancy v. Hernandez-Pinero,
`158 Misc 2d 514 (Sup Ct 1993) .............................................................................................7, 8
`
`Other Authorities
`
`CPLR 3021.....................................................................................................................................10
`
`CPLR 7806.....................................................................................................................................14
`
`CPLR 8601...............................................................................................................................11, 14
`
`https://www.merriam-webster.com/dictionary/restitution .............................................................14
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`FILED: KINGS COUNTY CLERK 04/09/2024 11:03 PM
`NYSCEF DOC. NO. 137
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`INDEX NO. 512787/2023
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`RECEIVED NYSCEF: 04/09/2024
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`Petitioner Delano Connolly (“Petitioner”) respectfully submits this Memorandum of Law
`
`in opposition to the cross-motion to dismiss filed by Respondents New York City Administration
`
`for Children’s Services (“ACS” or the “Agency”) and City of New York (the “City”) (together,
`
`“Respondents”).
`
`PRELIMINARY STATEMENT
`
`Petitioner sufficiently alleged Article 78 claims related to Respondents’ arbitrary and
`
`capricious decision to rescind reasonable accommodations Petitioner requires to manage the
`
`symptoms of his disabilities and work at ACS. Notably, Respondents do not challenge the
`
`sufficiency of the allegations in the Amended Petition. Instead, Respondents advance dubious
`
`arguments concerning standing, redressability, and supposed procedural defects in an effort to
`
`avoid accountability for their deplorable treatment of Petitioner who has dedicated over 25 years
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`to serving New York City’s children and families as an attorney at ACS. For the reasons stated
`
`herein, Respondents’ arguments lack merit and their motion should be denied in its entirety.
`
`RELEVANT FACTS
`
`A.
`
`Petitioner is Granted and Excels Working with Reasonable Accommodations
`
`For over 25 years, Petitioner has dedicated himself to the Agency. See NYSCEF Doc. No.
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`97 (“Amended Petition”) ¶¶ 37-42. Unfortunately, Petitioner suffers from disabilities related to a
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`fall he suffered at work in January 2018 and a heart attack he experienced in February 2019. Id.
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`¶¶ 43-66. As a result of his disabilities, Petitioner requested and was granted several reasonable
`
`accommodations—including at remote work accommodation—so that he could manage the
`
`symptoms of his disabilities while working at ACS. Id. ¶¶ 50-52; 67-91. For several years,
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`Petitioner excelled working with his reasonable accommodations and has constantly been
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`recognized for the strong performance. Id. ¶¶ 42, 92-98.
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`B.
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`Respondents Rescind Petitioner’s Reasonable Accommodations Without Any
`Legitimate Justification
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`Beginning August 19, 2022, Petitioner was out on medical leave related to continued chest
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`pain resulting from his January 2019 heart attack. Id. ¶¶ 99-101. On October 18, 2022,
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`Respondents notified Petitioner that they would fire him unless he was able to return to work by
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`August 18, 2023 “with no restrictions.” See id. ¶ 102. Over the next several weeks Petitioner
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`contacted several individuals from the Agency’s Office of Equal Employment Opportunity
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`(“OEEO”) about the mandate to return with needing any accommodations. Id. ¶¶ 104-13.
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`However, the individuals Petitioner contacted either no longer worked at ACS or ignored his
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`communications. Id.
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`During a telephone call with Deputy Borough Commissioner Terrell Evans (“Evans”) on
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`December 5, 2022, Petitioner explained that he had been unable to get in touch with anyone at
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`OEEO concerning his reasonable accommodations and return to work. Id. ¶ 115. Notably, Evans
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`advised Petitioner that the Office of Court Administration and judges had been honoring
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`reasonable accommodations for attorneys who needed to appear remotely due to disabilities or
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`other medical issues, including by permitting remote appearances. Id. ¶ 116. Roughly 30 minutes
`
`after the above-referenced conversation, Evans called Petitioner back and told him that ACS had
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`lifted all reasonable accommodations that had previously been provided to Petitioner in connection
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`with a directive from ACS to rescind all reasonable accommodations previously granted to Agency
`
`Attorneys. Id. ¶ 117 (citing Ex.1 E at 28); ¶ 118. Soon thereafter, Respondents’ rescission of
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`Petitioner’s reasonable accommodations was confirmed in an email from an EEO Investigator in
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`OEEO. Id. ¶ 120. Additionally, Petitioner was directed to submit a new request for the same
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`reasonable accommodations he had previously been granted. Id.
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`1 Unless otherwise noted, all exhibits to the Amended Petition are cited as “Ex. __.”
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`Petitioner quickly filed a request for reinstatement of his reasonable accommodations and
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`provided all necessary documentation. Id. ¶ 123 (citing Ex. E at 4); 124-31. However, on
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`December 20, 2022, Respondents denied Petitioner’s request. Id. ¶ 132 (citing Ex. J). In support
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`of their decision, Respondents claimed—without providing any explanation or rationale
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`whatsoever—that the reasonable accommodations would somehow prevent Petitioner from being
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`able to perform the essential functions of his role. Id. ¶ 133 (citing Ex. J at 3); ¶¶ 134-37.
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`Respondents also doubled down on their discriminatory policy of denying employees reasonable
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`accommodations under any circumstances and told Petitioner “[y]ou will remain on a medical
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`leave until either your Physician indicates that you no longer require restrictions or your condition
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`improves where you are able to return to work with no restrictions.” Id. ¶ 140 (quoting Ex. D at
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`1).
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`C.
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`Petitioner Appeals Respondents’ Baseless Denial of His Request for
`Reasonable Accommodations
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`Respondents maintain an administrative procedure allowing for appeals its decisions
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`denying employees reasonable accommodations. See Ex. J at 4. The Denial of Reasonable
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`Accommodation Request form asserting Respondents’ decision to rescind and not reinstate
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`Petitioner’s reasonable accommodations states “[a]n appeal may be made within 30 days of receipt
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`of
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`this
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`decision
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`to ACS Chief Accountability Officer Eden Hauslaib
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`at
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`radecisionappeal@acs.nyc.gov.” Id. On January 13, 2023, Petitioner timely appealed
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`Respondents’ December 20, 2022 decision to rescind his reasonable accommodations. Amended
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`Petition ¶ 147 (citing Ex. L). Respondents denied Petitioner’s appeal on February 15, 2023 and
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`baselessly asserted that the accommodations would cause an undue hardship and supposedly
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`prevent Petitioner from performing the essential functions of his job. Id. ¶ 148 (quoting Ex. M).
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`On April 26, 2023, Petitioner made a request to reinstate his accommodations and provided
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`Respondents with updated letters from his physicians recommending reinstatement. Id. ¶ 151
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`(citing Ex. P). Again, Respondents asserted their unsupported and unexplained claim of undue
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`hardship and assertion that the accommodations would prevent Petitioner from performing the
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`essential functions of his position. Id. ¶¶ 152-53. As a result, Respondents continued to force
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`Petitioner to remain out on involuntary leave until he could return to work with the need for any
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`accommodations. See id. ¶ 140.
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`D.
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`Respondents Prohibit Petitioner from Returning to Work in an Attempt to
`Manufacture a Pretextual Justification for Terminating His Employment
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`By August 2023, after Petitioner had been out on involuntary leave for eight months, the
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`symptoms of Petitioner’s disabilities subsided to where his physicians cleared him to return to
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`work without restrictions. Id. ¶¶ 165 (citing Ex. P), 166 (citing Exs. P, S). Of course, Petitioner’s
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`physicians accounted for the possibility that he may need accommodations in the future and
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`required him to receive regular reevaluations, especially considering his permanent heart condition
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`and the physical and mental stress related to his return to work. Id. ¶ 167 (citing Exs. R, S, U).
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`
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`After providing Respondents with the updated information and documentation from his
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`physicians, Respondents initially cleared Petitioner to return work on August 7, 2023. Id. ¶ 168
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`(citing Ex. T). However, Respondents quickly revoked permission for Petitioner to return to work
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`and claimed that the updated documentation he provide to Respondents from his physicians was
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`somehow “insufficient.” Id. ¶¶ 169-70. Indeed, Respondents needed to keep Petitioner out on
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`leave until August 18, 2023 so that they could cite to N.Y. Civ. Serv. Law § 73 as a supposed non-
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`discriminatory and non-retaliatory reason for firing Petitioner. Id. ¶¶ 173-77. N.Y. Civ. Serv. Law
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`§ 73 permits termination of a civil service employee who has been “continuously absent from and
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`unable to perform the duties of his position for one year or more by reason of a disability” and
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`August 18, 2023 marked one year since Petitioner took leave to have a fourth heart surgery. Id. ¶
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`174.
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`E.
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`The Court Enjoins Respondents from Terminating Petitioner’s Employment
`and Prevents Petitioner from Suffering Irreparable Harm
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`Petitioner faced suffering irreparable harm in connection with Respondents’ relentless
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`efforts to end his employment. See id. ¶¶ 178-79. Indeed, Respondents’ termination of Petitioner
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`would have resulted in him losing medical benefits that he needs to address his life-threatening
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`cardiac condition, including, inter alia, coverage for the cost of medications that he would not be
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`able to afford without health insurance. Id. ¶ 179. As a result, Petitioner was forced to request a
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`temporary restraining order and preliminary injunction prohibiting Respondents from terminating
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`his employment and health benefits during the pendency of this action. Id. ¶ 181. The Court
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`granted Petitioner’s application for injunctive relief and Petitioner returned to work on August 28,
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`2023. Id. ¶¶ 182-83; NYSCEF Doc. No. 66. In an effort to work around the Court’s Order,
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`Respondents have engaged in a deplorable discriminatory and retaliatory campaign against
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`Petitioner aimed at forcing him out of ACS. Id. ¶¶ 183-97.
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`F.
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`The Symptoms of Petitioner’s Disabilities Flare Up After Returning to Work
`and Respondents Deny Petitioner’s Request for a Remote Work
`Accommodation
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`On September 14, 2023, Petitioner’s physician recommended that Respondents provide
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`Petitioner with a remote work accommodation to address a flare up in the symptoms of his
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`disabilities as a result of returning to in-office work fulltime. See id. ¶¶ 198-201. Petitioner
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`requested a remote work accommodation that same day so that he could work remotely two days
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`per week. Id. ¶ 201. Subsequently, another of Petitioner’s physicians also recommended that
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`Respondents provide Petitioner with a remote work accommodation and Petitioner provided
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`Respondents with documentation reflecting the same. Id. ¶¶ 202-05. Consistent with their
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`aversion for providing employees with reasonable accommodations and animus against disabled
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`employees, Respondents denied Petitioner’s request for a remote work accommodation. Id. ¶ 207-
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`09.
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`I.
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`LEGAL STANDARDS
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`ARGUMENT
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`“Pursuant to CPLR 3211 (a) (7), pleadings shall be liberally construed, the facts as alleged
`
`accepted as true, and every possible favorable inference given to plaintiffs[.]” New York & Atl.
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`Ry. Co. v. The Town of Babylon, 2013 N.Y. Slip Op. 31796(U) (N.Y. Sup Ct, Suffolk County
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`2013) (citing Leon v. Martinez, 84 N.Y.2d 83 (1994)). “On such a motion, the Court is limited to
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`examining the pleading to determine whether it states a cause of action[.] Id. (citing Guggenheimer
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`v. Ginzburg, 43 N.Y.2d 268 (1977)). “In examining the sufficiency of the pleading, the Court
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`must accept the facts alleged therein as true and interpret them in the light most favorable to the
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`plaintiff[.]” Id. (citing Pacific Carlton Development Corp. v. 752 Pacific, LLC, 62 A.D.3d 677 (2d
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`Dept 2009) and Gjonlekaj v. Sot, 308 A.D.2d 471 (2d Dept 2003)). “[T]he Court’s sole inquiry is
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`whether the facts alleged in the complaint fit within any cognizable legal theory, not whether there
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`is evidentiary support for the complaint[.]” Id. (citations omitted). “Upon a motion to dismiss, a
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`pleading will be liberally construed and such motion will not be granted unless the moving papers
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`conclusively establish that no cause of action exists[.]” Id. (citing Chan Ming v. Chui Pak Hoi,
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`163 A.D.2d 268 (1st Dept 1990)).
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`II.
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`RESPONDENTS’ MOTION TO DISMISS SHOULD BE DENIED
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`As is clear from the face of the Amended Complaint, Petitioner has sufficiently alleged
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`Article 78 claims and this action is ripe for discovery and trial. See generally Amended Petition.
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`Respondents do not challenge the sufficiency of the allegations in the Amended Petition. See
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`generally NYSCEF Doc. No. 134 (“Def. Br.”). Rather, Respondents advance several dubious
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`arguments concerning standing, redressability, and supposed procedure defects in a last ditch
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`efforts to avoid litigation on the merits of Petitioner’s claims. However, for the reasons stated
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`herein, each of Respondents’ arguments lacks merit and their motion should be denied in its
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`entirety.
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`A.
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`The Amended Petition Was Properly Verified
`
`The Amended Petition was properly verified. “A petition in an Article 78 proceeding must
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`be verified by a party to the action[.]” Matter of Yancy v. Hernandez-Pinero, 158 Misc 2d 514,
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`520 (Sup Ct 1993) (citing CPLR 7804(d); 3020(d)). Petitioner filed the Amended Petition on
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`February 6, 2024 with a verification. See NYSCEF Doc. No. 98 at 44. Therefore, Petitioner met
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`the verification requirements of CPLR 7804.
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`Respondents contend that the verification is defective and, as a result, the Amended
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`Complaint should be dismissed. See Def. Br. at 6-8. As an initial matter, pursuant to CPLR 3022,
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`“a party challenging the sufficiency of a verification is required ‘to give notice with due diligence
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`to the attorney of the adverse party that he or she elected to treat the petition as a nullity[.]’”
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`Buffalo Council of Supervisors & Adm’r s, Loc. #10 by Barton v. Cash, 174 A.D.3d 1462, 1463,
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`106 N.Y.S.3d 484, 485 (2019) (quoting Matter of Colon v. Vacco, 242 A.D.2d 973, 974, (4th Dept.
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`1997)). “‘Due diligence’ has been held to mean within twenty-four hours[.]” Betzler v. Carey,
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`109 Misc. 2d 881, 886, 441 (Sup. Ct. 1981), aff’d, 91 A.D.2d 1116, 458 N.Y.S.2d 338 (1983)
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`(citing O’Neil v Kasler, 53 AD2d 310, 315 (4th Dept 1976) and Nafalski v Toia, 63 A.D.2d 1039,
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`1040 (3d Dept 1978)).
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`Respondents did not provide Petitioner with any notice of their intention to treat the
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`Amended Petition as a nullity. Instead, Respondents challenge the sufficiency of Petitioner’s
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`verification for the first time in this application which they filed a month and a half after the
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`Amended Petition was filed. See Def. Br. at 6-8. As such, Respondents waived any challenge to
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`the sufficiency of Petitioner’s verification. See Cash, 174 AD3d at 1463 (“[E]ven assuming,
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`arguendo, that the verification by petitioner's attorney was insufficient, we conclude that
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`respondents waived any challenge to the petition on that ground by failing to make the requisite
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`diligent efforts and instead waiting a month before seeking dismissal of the petition on that
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`basis[.]”); Yancy, 158 Misc 2d at 520-21 (“[R]espondents’ first objection to the verification came
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`in their answer, which was served approximately seven weeks after their receipt of the petition.
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`Any objection to the defect in the petition, therefore, was waived by respondents’ failure to give
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`notice with due diligence of their intention to treat the pleading as a nullity on the basis of that
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`defect[.]”) (internal citations omitted); Betzler, 109 Misc 2d at 886 (two months not timely notice).
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`Even if the Court finds that Respondents have not waived their ability to challenge
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`Petitioner’s verification, which they have, Respondents’ arguments lack all credibility.
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`Petitioner’s verification contains a typo and mistakenly states that the verification was
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`signed on February 6, 2023 rather than February 6, 2024.2 See Amended Petition at 44. Even
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`though the typo on the verification is obvious, Respondents feign understanding that there was a
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`typo and disingenuously argue that the verification is defective because it “is dated February 6,
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`2023 which predates several of the alleged occurrences petitioner claims to have personal
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`knowledge of.” See Def. Br. 6. In other words, Respondents would have this Court believe that
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`Petitioner signed a verification in February 2023—two months before this action was filed—in
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`anticipation of filing the Amended Petition. Of course, Respondents’ claim lacks merit and should
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`be disregarded.
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`2 Petitioner clearly e-signed the verification to the Amended Petition via software by DocuSign, Inc. See Amended
`Petition at 44. Electronic records related to Petitioner e-signing the verification demonstrate that Petitioner singed
`verification on February 6, 2024.
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`Respondents also assert that the verification is defective because the verification does not
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`contain the phrases “under oath” or “on penalty of perjury.” See Def. Br. at 7. However, “[t]here
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`is no specific form of oath required in this State [] other than that it be ‘calculated to awaken the
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`conscience and impress the mind of the person taking it in accordance with his religious or ethical
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`beliefs[.]’” Collins v. AA Trucking Renting Corp., 209 AD2d 363, 363 (1st Dept 1994) (quoting
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`CPLR 2309(b)). “In addition, a notary, in the absence of a showing to the contrary, is presumed
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`to have acted within his or her jurisdiction and to have carried out the duties required by law[.]”
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`Furtow v Jenstro Enterprises, Inc., 75 AD3d 494, 494-95 (2d Dept 2010) (quoting Feinman v
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`Mennan Oil Co., Inc., 248 AD2d 503, 504 (2d Dept 1998)).
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`Petitioner’s verification states:
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`DELANO CONNOLLY, being duly sworn, hereby deposes and
`says: I am the Petitioner in the above-captioned action. I have read
`the foregoing Amended Petition and know the contents thereof. The
`same are true to my knowledge, except as to matters therein that are
`alleged upon information and belief and, as to those matters, I
`believe them to be true.”
`
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`Amended Petition at 44. The verification also states that it was “[s]worn to before me [a notary
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`public] on this 6th day of February, 202[4.]” Id. Therefore, Petitioner’s verification is clearly
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`valid under CPLR 7804 and 3020. See Furtow, 75 AD3d at 494-95 (finding that affidavit was in
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`“admissible form” where the affidavit “recited that [defendant] was ‘duly sworn’ and contained a
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`jurat stating that the affidavit was ‘sworn to before’ a notary public, who signed and stamped the
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`document.”); Collins, 209 AD2d at 363 (finding that two statements submitted by defendant-
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`respondent qualified as oaths where “defendant [did] not say in either statement that he had been
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`sworn, [but] he [did] say that he has read the statements, and they are ‘true, factual and voluntarily
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`given’” and where “both statements contain the jurat and stamp of a notary public[.]”); Feinman v
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`Mennan Oil Co., Inc., 248 AD2d 503, 503-04 (2d Dept 1998) (finding affidavit admissible where
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`9
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`13 of 25
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`“there [was] nothing to indicate that the notary who executed the jurat at the end of the affidavit at
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`issue acted without jurisdiction or failed to carry out the duties required by law.”).
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`
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`Respondents also argue that Petitioner’s verification is defective because it is not in the
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`form of an “affidavit.” Def. Br. at 7. CPLR 3021, which is titled “form of affidavit of verification,”
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`states “[t]he affidavit of verification must be to the effect that the pleading is true to the knowledge
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`of the deponent, except as to the matters therein stated to be alleged on information and belief, and
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`that as to those matters he believes it to be true.” As is evident from the plain language of
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`Petitioner’s verification referenced above, the verification clearly meets the requirements of CPLR
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`3201. See supra at 9.
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`
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`Case law relied on by Respondents does not support their positions and is clear
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`distinguishable. See Matter of Neftali D., 85 NY2d 631, 634 (1995) (dismissing juvenile
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`delinquency petition related to a juvenile’s alleged assault of two police officer where the petition
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`failed to meet the sufficiently requirements of Family Court Act § 311.2 (3) which the court noted
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`“are not simply technical pleading requirements but are designed to ensure substantive due process
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`protection to an alleged juvenile delinquent, who can be arrested and deprived of liberty based on
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`the petition.”); U.S. Bank N.A. v Langner, 168 AD3d 1021, 1023 (2d Dept 2019) (holding that an
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`affirmation in support of a motion to dismiss for failure to properly serve the complaint which was
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`witnessed by an Israeli notary “failed to indicate that the statements made therein were true under
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`the penalties of perjury.”).
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`B.
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`Petitioner Has Standing to Pursue His Article 78 Claims
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`Petitioner has standing to assert his Article 78 claims. “Standing is a threshold
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`determination, resting in part on policy considerations, that a person should be allowed access to
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`the courts to adjudicate the merits of a particular dispute that satisfies the other justiciability
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`criteria[.]” Matter of Assn. for a Better Long Is., Inc. v New York State Dept. of Envtl.
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`10
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`14 of 25
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`Conservation, 23 NY3d 1, 6 (2014) (internal quotation marks and citation omitted). “Petitioner
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`has the burden of establishing both an injury-in-fact and that the asserted injury is within the zone
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`of interests sought to be protected by the statute alleged to have been violated[.]” Id. (internal
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`quotation marks and citation omitted). “A special proceeding under CPLR article 78 is available
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`to challenge the actions or inaction of agencies and officers of state and local government[.]”
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`Razzano v. Remsenburg-Speonk UFSD, 162 AD3d 1043, 1045 (2d Dept 2018).
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`Respondents’ arbitrary and capricious decision to rescind Petitioner’s reasonable
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`accommodations has caused him to suffer an injury. Respondents rescind Petitioner’s reasonable
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`accommodations in December 2022 and mandated that he could only return to work when “either
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`your Physician indicates that you no longer require restrictions or your condition improves where
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`you are able to return to work with no restrictions.” Amended Petition ¶¶ 115-20, 140 (quoting
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`Ex. D at 1). As a result of their discriminatory directive and clear aversion to employing
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`individuals who require accommodations, Respondents forced Petitioner to remain on unpaid
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`leave for eight months. See id. ¶¶ 104-53, 165-97. Because Respondents required Petitioner to
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`remain out on unpaid leave, Petitioner was forced to expend his banked compensatory time he had
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`accrued over 25 years serving the children and families of New York City to ensure that he earned
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`income while out on leave. See id. ¶¶ 154-64. The compensatory time Petitioner was forced to
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`use is valued at approximately $44,800 ($5,600 per month over the eight months Respondents
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`forced Petitioner to remain out on involuntary leave). See id. ¶ 163. Should he prevail in this
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`action, Petitioner would be entitled damages related to the value of his used compensatory time.
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`See CPLR 8601 (“[A] court shall award to a prevailing party, other than the state, fees and other
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`expenses incurred by such party in any civil action brought against the state, unless the court finds
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`11
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`15 of 25
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`that the position of the state was substantially justified or that special circumstances make an award
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`unjust.”).
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`Also, as a result of Respondents’ decision
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`to rescind Petitioner’s reasonable
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`accommodations, Petitioner is working without the accommodations he needs to manage the life-
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`threatening symptoms of his disabilities. See id. ¶¶ 198-224. Indeed, while Petitioner was able to
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`return to work in August 2023 without the need for any accommodations, the return to fulltime in-
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`office work exasperated the symptoms of his disabilities and his physicians recommended that
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`Respondents provide Petitioner with a remote work accommodation. See id. Respondents
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`baselessl