FILED: QUEENS COUNTY CLERK 07/15/2024 03:28 PM
`NYSCEF DOC. NO. 65
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`INDEX NO. 702050/2023
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`RECEIVED NYSCEF: 07/15/2024
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`SUPREME COURT OF THE STATE OF NEW YORK
`QUEENS COUNTY
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`PRESENT:
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`HON. PHILLIP HOM
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`Justice
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`JACLYN COCCOVILLO
` Petitioner,
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`FOR A JUDGMENT PURSUANT TO ARTICLE 78 OF THE
`CIVIL PRACTICE LAW AND RULES
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`- v -
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`PART 14
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` INDEX NO.
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` MOTION DATE
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` MOTION SEQ. NO.
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`702050/2023
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`07/20/2023
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` 001 +
`CROSS-
`MOTION
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`NEW YORK DEPARTMENT OF EDUCATION,
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` Respondent.
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`DECISION + ORDER ON
`PETITION AND CROSS-MOTION
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`The following e-filed documents, listed by NYSCEF document number (Motion 001) 2, 19, 21, 22, 23, 24,
`25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52,
`53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64
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`were read on this motion to/for
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` ARTICLE 78 (BODY OR OFFICER)
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`Upon the foregoing documents, it is ordered that the petition and cross-motion are
`determined as follows:
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`Petitioner Jaclyn Coccovillo (“Petitioner”) commenced this article 78 proceeding against
`respondent New York Department of Education’s (“Respondent”), seeking, among other things, a
`reversal of a final determination which Petitioner claims denied her a medical accommodation
`from Respondent’s Covid-19 vaccine mandate.
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`In support, Petitioner submits, among other things, a copy of the amended verified petition,
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`an attorney’s affirmation, Petitioner’s affidavit, the application for a medical accommodation
`submitted on September 24, 2021, Respondent’s approval of a medical exemption to the Covid-
`19 vaccine mandate, dated October 2, 2021, the first extension of the medical accommodation
`dated August 17, 2022, the second extension dated December 5, 2022, a denial dated
`January 17, 2023, and the third extension granted on January 25, 2023, which remained effective
`until February 17, 2023.
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`In opposition, and upon their cross-motion, the Respondent submitted, among other things,
`a copy of the affirmation of Kathleen M. Linnane, Esq., an assistant corporation counsel
`representing the Respondent, and the Board of Health Resolution dated February 9, 2023. In
`opposition to the cross-motion, the Petitioner submitted, among other things, the affirmation of
`Jeannette Poyerd-Loiacono, Esq., attorney for the Petitioner.
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`“A special proceeding under CPLR article 78 is available to challenge the actions or
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`inaction of agencies and officers of state and local government.” (Matter of Gottlieb v City of New
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`702050/2023 JACLYN COCCOVILLO FOR A JUDGMENT PURSUANT TO ARTICLE 78 OF THE
`CIVIL PRACTICE LAW AND RULES vs. NEW YORK DEPARTMENT OF EDUCATION
`Motion No. 001 + cross-motion
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`Page 1 of 3
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`1 of 3
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`7/15/2024
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`FILED: QUEENS COUNTY CLERK 07/15/2024 03:28 PM
`NYSCEF DOC. NO. 65
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`INDEX NO. 702050/2023
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`RECEIVED NYSCEF: 07/15/2024
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`York, 129 AD3d 724, 725 [2d Dept 2015]). “The standard of judicial review in the instant matter
`is whether DOE’S determination was made in violation of lawful procedure, was affected by an
`error of law or was arbitrary and capricious or an abuse of discretion.” (CPLR 7803 [3]; see also
`Matter of Scherbyn v Wayne–Finger Lakes Bd. of Coop. Educ. Servs., 77 NY2d 753, 758 [1991].)
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`“It is a fundamental principle of our jurisprudence that the power of a court to declare the
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`law only arises out of, and is limited to, determining the rights of persons which are actually
`controverted in a particular case pending before the tribunal” (Matter of 39 Gas Corp. v NYC Dept.
`of Consumer Affairs, 219 AD3d 1425, 1426 [2d Dept 2023], quoting Hearst Corp. v Clyne, 50
`NY2d 707, 713 [1980]). “Courts are generally prohibited from issuing advisory opinions or ruling
`on hypothetical inquiries” (Matter of Kirkland v Annucci, 150 AD3d 736, 738 [2d Dept 2017],
`quoting Coleman v Daines, 19 NY3d 1087, 1090 [ 2012]; see also Hepco Plumbing & Heating v
`New York City Dept. of Bldgs., 227 AD3d 903, 905 [2d Dept 2024]).
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`The record reflects that although the Petitioner received an e-mail that her request for a
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`reasonable accommodation was denied on January 17, 2023, her request for an extension was later
`granted on January 25, 2023, and remained in effect until February 17, 2023. At the time this
`petition was filed, Petitioner’s reasonable accommodation remained in effect.
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`On February 9, 2023, the Board of Health amended the COVID-19 vaccination
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`requirement for Respondent’s employees, repealing the requirement that employees provide proof
`of vaccination (see generally Vignali v City of New York, 2023 NY Slip Op 31352(U) *3-4 [Sup
`Ct, New York Cty 2023]).
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`Several decisions by lower courts in other jurisdictions have found that, under similar
`circumstances as the facts herein, the petitions were moot in seeking further relief from the
`requirement of being vaccinated, where no such mandate exists (see generally MacDougall v the
`Bd. of Educ. of the City School Dist. of the City of New York, 2024 WL 1557857 (Sup Ct, New
`York Cty 2024); McCarthy v City of New York, 2023 NY Misc. LEXIS 16462 [Sup Ct, Bronx Cty
`2023]; Galetovic v N.Y.C. Fire Dep’t, 2023 NY Misc. LEXIS 18612 [Sup Ct, Bronx Cty 2023]).
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`Petitioner’s arguments that the Respondent may enforce the proof of vaccination
`requirement is found unavailing. “The possibility that some form of vaccine mandate might be
`enforced at some unknown time in the future does not provide a basis for the proceeding to escape
`the mootness doctrine, and the likelihood of such a mandate is, in any event, speculative” (Vignali
`v City of New York, 222 AD3d 419, 420 [1st Dept 2023]; see also Matter of Only Props. LLC v
`New York City Dept. of Bldgs., 11 AD3d 541, 541 [1st Dept 2022]).
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`In accordance with the foregoing, it is hereby ORDERED that Petitioner’s petition is
`denied; and it is further
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`ORDERED that Respondent’s cross-motion to dismiss the Amended Verified Petition as
`moot is granted; and it is further
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`ORDERED that any requested relief and/or remaining contentions not expressly addressed
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`herein have nonetheless been considered and are hereby expressly rejected; and it is further
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`702050/2023 JACLYN COCCOVILLO FOR A JUDGMENT PURSUANT TO ARTICLE 78 OF THE
`CIVIL PRACTICE LAW AND RULES vs. NEW YORK DEPARTMENT OF EDUCATION
`Motion No. 001 + cross-motion
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`Page 2 of 3
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`2 of 3
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`FILED: QUEENS COUNTY CLERK 07/15/2024 03:28 PM
`NYSCEF DOC. NO. 65
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`INDEX NO. 702050/2023
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`RECEIVED NYSCEF: 07/15/2024
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`ORDERED that Respondent shall serve a copy of this Order with Notice of Entry upon
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`Petitioner within twenty (20) days from the date of entry; and it is further
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`ORDERED that this action is hereby disposed.
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`This constitutes the Decision and Order of this Court.
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`Dated: July 12, 2024
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`_________________________________
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`PHILLIP HOM, J.S.C.
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`702050/2023 JACLYN COCCOVILLO FOR A JUDGMENT PURSUANT TO ARTICLE 78 OF THE
`CIVIL PRACTICE LAW AND RULES vs. NEW YORK DEPARTMENT OF EDUCATION
`Motion No. 001 + cross-motion
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`Page 3 of 3
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`3 of 3
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