U.S. District Court Northern District of New York - Main Office (Syracuse) [NextGen CM/ECF
Release 1.3 (Revision 1.3.6)] (Albany) CIVIL DOCKET FOR CASE #: 1:20-cv-00651-GLS-DJS

Rev. Steven Soos et al v. Cuomo et al Assigned to: Senior Judge Gary L. Sharpe Referred to: Magistrate Judge Daniel J. Stewart Cause: 42:1983 Civil Rights Act

Date Filed: 06/10/2020 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Plaintiff Rev. Steven Soos

represented by Christopher A. Ferrara 148-29 Cross Island Parkway Whitestone, NY 11357 718-357-1040 Fax: 973-244-9897 Email: cferrara@thomasmoresociety.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Rev. Nicholas Stamos

Michael McHale 10506 Burt Circle Ste 110 Omaha, NE 68114 402-501-8586 Email: mmchale@thomasmoresociety.org ATTORNEY TO BE NOTICED
represented by Christopher A. Ferrara (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Daniel Schonbrun

Michael McHale (See above for address) ATTORNEY TO BE NOTICED
represented by Christopher A. Ferrara (See above for address) LEAD ATTORNEY

Plaintiff Elchanan Perr
Plaintiff Mayer Mayerfeld
Plaintiff Jeanette Ligresti as parent and guardian of infant plaintiffs P.L. and G.L
Plaintiff Morton Avigdor

ATTORNEY TO BE NOTICED
Michael McHale (See above for address) ATTORNEY TO BE NOTICED
represented by Christopher A. Ferrara (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael McHale (See above for address) ATTORNEY TO BE NOTICED
represented by Christopher A. Ferrara (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael McHale (See above for address) ATTORNEY TO BE NOTICED
represented by Christopher A. Ferrara (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael McHale (See above for address) ATTORNEY TO BE NOTICED
represented by Christopher A. Ferrara (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael McHale (See above for address) ATTORNEY TO BE NOTICED

V. Intervenor Plaintiff Jenna M. DiMartile
Intervenor Plaintiff Justin G. Crawford Intervenor Plaintiff Bradley M. Markowski Intervenor Plaintiff August N. Santore, Jr.
Intervenor Plaintiff Matt Shaw Intervenor Plaintiff

represented by Phillip A. Oswald Rupp Baase Pfalzgraf Cunningham LLC 25 Walton Street 12866 Saratoga Springs, NY 12866 518-886-1902 Fax: 518-450-1724 Email: oswald@ruppbaase.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Phillip A. Oswald (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Phillip A. Oswald (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Ronald D Coleman Dhillon Law Group, Inc. 256 5th Avenue - 4th Floor New York, NY 10001 347-996-4840 Fax: 646-358-8082 Email: rcoleman@dhillonlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Ronald D Coleman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

James R. Young
Intervenor Plaintiff Kevin J. Fritschler

represented by Ronald D Coleman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Ronald D Coleman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant Andrew M. Cuomo Governor of the State of New York, in his official capacity
Defendant Letitia James Attorney General of the State of New York in her official capacity
Defendant Bill De Blasio Mayor of the City of New York, in his official capacity

represented by Adrienne J. Kerwin Office of Attorney General - Albany State of New York The Capitol Albany, NY 12224 518-776-2608 Fax: 518-473-1572 Email: Adrienne.Kerwin@ag.ny.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Adrienne J. Kerwin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Melanie Sadok New York City Law Department 100 Church Street New York, NY 10007 212-356-4371 Email: msadok@law.nyc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ellen Parodi New York City Law Department 100 Church Street Room 5-179 New York, NY 10007

Defendant Keith M. Corlett Superintendent of the New York State Police, in his official capacity
Defendant Howard A. Zucker M.D., New York State Commissioner of Health, in his official capacity
Defendant Betty A. Rosa Interim Commissioner of the New York State Education Department, in her official Capacity
Defendant Empire State Development Corporation ("ESD"), a New York State Public Benefit Corporation
Defendant Dave A. Chokshi New York City Commissioner of Health, in his official capacity

212-356-1646 Email: eparodi@law.nyc.gov ATTORNEY TO BE NOTICED
Hilary M. Meltzer New York City Law Department Environmental Law Division 100 Church Street New York, NY 10007 212-788-1585 Fax: 212-788-1619 Email: hmeltzer@law.nyc.gov ATTORNEY TO BE NOTICED
represented by Adrienne J. Kerwin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Adrienne J. Kerwin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Adrienne J. Kerwin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Adrienne J. Kerwin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Melanie Sadok (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ellen Parodi (See above for address) ATTORNEY TO BE NOTICED

Defendant Terence A. Monahan Chief of the New York City Police Department, in his official capacity
Defendant Richard Carranza Chancellor of the New York City Department of Education in his official capacity
ThirdParty Plaintiff Ken McGuire LAW OFFICES OF KENNETH MCGUIRE 710 Brunswick Road Troy, NY 12180 5182794292
Amicus Ahuva Kleinman

represented by Melanie Sadok (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ellen Parodi (See above for address) ATTORNEY TO BE NOTICED
represented by Melanie Sadok (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ellen Parodi (See above for address) ATTORNEY TO BE NOTICED
represented by Kenneth J. McGuire , Jr. Office of Kenneth J. McGuire, Jr. 710 Brunswick Road Troy, NY 12180 518-279-4292 Fax: 518-279-4297 Email: kenmcguire@hotmail.com ATTORNEY TO BE NOTICED
represented by Ronald D Coleman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 06/10/2020
06/10/2020

# Docket Text
1 COMPLAINT against Andrew M. Cuomo, Letitia James, and Bill De Blasio, (Filing fee $400 receipt number BNYNDC-5139985) filed by Rev. Steven Soos, Rev. Nicholas Stamos, Daniel Schonbrun, Elchanan Perr, and Mayer Mayerfeld. (Attachments: # 1 Exhibits A - T, # 2 Civil Cover Sheet) (kmp) (Entered: 06/11/2020)
2 EMERGENCY MOTION for Temporary Restraining Order filed by Rev. Steven Soos, Rev. Nicholas Stamos, Daniel Schonbrun, Elchanan Perr,

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and Mayer Mayerfeld. (Attachments: # 1 Unsworn Declaration of George DelGado, M.D., # 2 Declaration of Christopher Ferrara, Esq., # 3 Unsworn Declaration of Christopher Ferrara, Esq., # 4 Memorandum of Law) (kmp) (Entered: 06/11/2020)
3 SUMMONS ISSUED as to Andrew M. Cuomo (Attachments: # 1 Summons Issued for Letitia James, # 2 Summons Issued for Bill De Blasio) (kmp) (Entered: 06/11/2020)
4 G.O. 25 FILING ORDER ISSUED: Initial In Person Rule 16 Conference set for 9/9/2020 at 9:30 AM in Albany before Magistrate Judge Daniel J. Stewart. Civil Case Management Plan must be filed and Mandatory Disclosures are to be exchanged by the parties on or before 9/2/2020. (Pursuant to Local Rule 26.2, mandatory disclosures are to be exchanged among the parties but are NOT to be filed with the Court.) (kmp) (Entered: 06/11/2020)
5 NOTICE of Admission Requirement as to Party Plaintiffs'; Attorney Michael G. McHale, Email address is mmchale@thomasmoresociety.org. Phone number is 402-501-8586. Admissions due by 6/25/2020. {Copy of Notice of Admission Requirement and General Order #25 emailed to Attorney McHale on 6/11/2020}. (kmp) (Entered: 06/11/2020)
6 TEXT ONLY ORDER - Pending is plaintiffs' application for a temporary restraining order (TRO) on an expedited basis. (Dkt. No. 2.) The immediacy of plaintiffs' application is apparent because they seek a TRO "restraining Defendants, their agents, employees, and those acting in concert with them from enforcing the Governor's Orders in a manner infringing on Plaintiffs' religious services," which would be effective for the upcoming Sabbath at sundown June 12, 2020, and for Mass on June 14, 2020. (Dkt. No. 2 ¶ 11(a).) The application does not conform with Local Rule 7.1(e), which specifies the order to show cause procedure in this District. Plaintiffs shall remedy their failure to conform with the Local Rules of Practice by 3:00 P.M. today, June 11, 2020. IT IS SO ORDERED. Issued by Senior Judge Gary L. Sharpe on 6/11/2020. (jel, ) (Entered: 06/11/2020)
7 MOTION for Temporary Restraining Order by Mayer Mayerfeld, Elchanan Perr, Rev. Nicholas Stamos, Rev. Steven Soos, Daniel
Schonbrun. (Attachments: # 1 Declaration In support of OTSC under Rule 7.1(e))(Ferrara, Christopher) (Entered: 06/11/2020)
8 TEXT ONLY ORDER - Pending is plaintiffs' application for a temporary restraining order (TRO), or, in the alternative, preliminary injunction, brought by order to show cause. (Dkt. Nos. 2, 7.) Plaintiffs seek a TRO "restraining Defendants, their agents, employees, and those acting in concert with them from enforcing the Governors Orders in a manner infringing on Plaintiffs' religious services," which would be effective for

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06/15/2020
06/15/2020
06/15/2020

the upcoming Sabbath at sundown on June 12, 2020, and for Mass on June 14, 2020. (Dkt. No. 2 11(a).) The motion is DENIED to the extent it seeks a TRO that would apply to religious services on June 12 or 14 because insufficient time exists to make a reasoned determination with input from defendants before that time, particularly in light of the current circumstances, related to COVID-19, under which all parties and the court are operating. Defendants shall file a response to plaintiffs' motion by June 15, 2020 at 12:00 P.M. Plaintiffs may file a reply by June 16, 2020 at 12:00 P.M. A return on the motion is scheduled for June 17, 2020 at 1:00 P.M. via Skype for Business. The court's deputy clerk will contact the parties with details pertaining to the use of Skype. Plaintiffs shall serve this Text Only Order on defendants immediately by both email and overnight mail. Plaintiffs shall file proof of service with the court immediately following service as prescribed herein. Counsel for defendants shall file a notice of appearance as soon as is practicable upon receipt of this Text Only Order. IT IS SO ORDERED. Issued by Senior Judge Gary L. Sharpe on 6/11/2020. (jel, ) (Entered: 06/11/2020)
9 CERTIFICATE OF SERVICE by Mayer Mayerfeld, Elchanan Perr, Rev. Nicholas Stamos, Rev. Steven Soos, Daniel Schonbrun re 8 Order Setting Hearing on Motion,,,,,, Service by email with certificate for service by overnight mail to follow (Ferrara, Christopher) (Entered: 06/11/2020)
10 NOTICE of Appearance by Adrienne J. Kerwin on behalf of Andrew M. Cuomo, Letitia James (Kerwin, Adrienne) (Entered: 06/11/2020)
11 CERTIFICATE OF SERVICE by Mayer Mayerfeld, Elchanan Perr, Rev. Nicholas Stamos, Rev. Steven Soos, Daniel Schonbrun re 7
MOTION for Temporary Restraining Order , 8 Order Setting Hearing on Motion,,,,,, Certificate of Service by Overnight Mail (Ferrara, Christopher) (Entered: 06/11/2020)
12 MOTION for Limited Admission Pro Hac Vice of Melanie V. Sadok Filing fee $100, receipt number ANYNDC-5143181. filed by Bill De Blasio. (Attachments: # 1 Exhibit(s) Declaration supporting motion, # 2 Exhibit(s) Registration, # 3 Exhibit(s) Petition, # 4 Exhibit(s) Certificate of good standing) Motions referred to Daniel J. Stewart. (Meltzer, Hilary) (Entered: 06/15/2020)
13 MOTION for Limited Admission Pro Hac Vice of Ellen Margaret Parodi Filing fee $100, receipt number ANYNDC-5143189. filed by Bill De Blasio. (Attachments: # 1 Exhibit(s) Declaration of sponsor, # 2 Exhibit(s) Registration, # 3 Exhibit(s) Petition, # 4 Exhibit(s) Certificate of good standing) Motions referred to Daniel J. Stewart. (Meltzer, Hilary) (Entered: 06/15/2020)
Notice of Filing Deficiency re: 12 Motion for Limited Admission Pro Hac Vice of Melanie V. Sadok. Pursuant to LR 83.1(d), the sponsor

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and/or applicant MUST provide the following required documents: Completed Declaration of Sponsor, signed and dated New Attorney E-Filing Registration Form. The corrected documents should be electronically filed with the Court by selecting the 'Supplemental Admission documents' event, which is found under the 'Other Documents' menu. Once all requirements under LR 83.1(d) have been met, the motion will be forwarded to the assigned Magistrate Judge for consideration. (tad, ) (Entered: 06/15/2020)
Notice of Filing Deficiency re: 13 Motion for Limited Admission Pro Hac Vice Ellen Parodi. Pursuant to LR 83.1(d), the sponsor and/or applicant MUST provide the following required documents: Completed Declaration of Sponsor The corrected documents should be electronically filed with the Court by selecting the 'Supplemental Admission documents' event, which is found under the 'Other Documents' menu. Once all requirements under LR 83.1(d) have been met, the motion will be forwarded to the assigned Magistrate Judge for consideration. (tad, ) (Entered: 06/15/2020)
14 Supplemental Admission documents re: 13 Motion for Limited Admission Pro Hac Vice,. (Meltzer, Hilary) (Entered: 06/15/2020)
15 Supplemental Admission documents re: 12 Motion for Limited Admission Pro Hac Vice,. (Meltzer, Hilary) (Entered: 06/15/2020)
16 Supplemental Admission documents re: 12 Motion for Limited Admission Pro Hac Vice,. (Meltzer, Hilary) (Entered: 06/15/2020)
17 RESPONSE in Opposition re 7 MOTION for Temporary Restraining Order Declaration of Adrienne J. Kerwin with exhibits filed by Andrew M. Cuomo, Letitia James. (Attachments: # 1 Exhibit(s) 0-40 to Kerwin Decl.)(Kerwin, Adrienne) (Entered: 06/15/2020)
18 RESPONSE in Opposition re 7 MOTION for Temporary Restraining Order Memorandum of Law filed by Andrew M. Cuomo, Letitia James. (Kerwin, Adrienne) (Entered: 06/15/2020)
19 RESPONSE in Opposition re 2 MOTION for Temporary Restraining
Order, 7 MOTION for Temporary Restraining Order filed by Bill De Blasio. (Attachments: # 1 Exhibit(s) 1 to Declaration of Ellen Parodi, # 2 Exhibit(s) 2 to Declaration of Ellen Parodi, # 3 Exhibit(s) 3 to Declaration of Ellen Parodi, # 4 Exhibit(s) 4 to Declaration of Ellen Parodi, # 5 Exhibit(s) 5 to Declaration of Ellen Parodi, # 6 Exhibit(s) 6 to Declaration of Ellen Parodi, # 7 Memorandum of Law in opposition to PLAINTIFFS MOTION FOR A TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION)(jel, ) (Entered: 06/15/2020)

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20 RESPONSE in Opposition re 7 MOTION for Temporary Restraining Order Declaration of Brad Hutton with Exhibits filed by Andrew M. Cuomo, Letitia James. (Attachments: # 1 Exhibit(s) A-BB to Hutton Decl.)(Kerwin, Adrienne) (Entered: 06/15/2020)
21 TEXT ORDER granting 12 Motion for Limited Admission Pro Hac Vice. Attorney Melanie V. Sadok is hereby admitted to practice in this action on behalf of Defendant Bill De Blasio. Counsel is hereby advised that as of January 16, 2018, the NYND has converted to NextGen. Due to this conversion, you must now register for Pro Hac Vice access through your PACER account. This is the only notice you will receive concerning this requirement. You will not have access to electronically file in this case until your Pro Hac Vice request has been processed through the PACER system. Step-by-step instructions on how to complete this process are available at http://www.nynd.uscourts.gov/attorneyadmissions-nextgen. Signed by Magistrate Judge Daniel J. Stewart on 6/15/2020. (mab) (Entered: 06/15/2020)
22 TEXT ORDER granting 13 Motion for Limited Admission Pro Hac Vice. Attorney Ellen M. Parodi is hereby admitted to practice in this action on behalf of Defendant Bill De Blasio. Counsel is hereby advised that as of January 16, 2018, the NYND has converted to NextGen. Due to this conversion, you must now register for Pro Hac Vice access through your PACER account. This is the only notice you will receive concerning this requirement. You will not have access to electronically file in this case until your Pro Hac Vice request has been processed through the PACER system. Step-by-step instructions on how to complete this process are available at http://www.nynd.uscourts.gov/attorneyadmissions-nextgen. Signed by Magistrate Judge Daniel J. Stewart on 6/15/2020. (mab) (Entered: 06/15/2020)
23 NOTICE of Appearance by Ellen Parodi on behalf of Bill De Blasio (Parodi, Ellen) (Entered: 06/15/2020)
24 NOTICE of Appearance by Melanie Sadok on behalf of Bill De Blasio (Sadok, Melanie) (Entered: 06/15/2020)
25 MEMORANDUM OF LAW re 7 Motion for TRO Reply Memorandum in Support of Motion for TRO/Preliminary Injunction filed by Mayer Mayerfeld, Elchanan Perr, Rev. Nicholas Stamos, Rev. Steven Soos, Daniel Schonbrun. (Attachments: # 1 Exhibit(s) Exhibit A to Reply Memo-Transcript of Cuomo press briefing, # 2 Exhibit(s) Exhibit B to Reply Memo-Gov. Murphy Executive Order 152, # 3 Exhibit(s) Exhibit C to Reply Memo-Declaration of Plaintiff Mayerfeld)(Ferrara, Christopher) (Entered: 06/16/2020)

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26 CERTIFICATE OF SERVICE by Mayer Mayerfeld, Elchanan Perr, Rev. Nicholas Stamos, Rev. Steven Soos, Daniel Schonbrun re 25
Memorandum of Law, Certificate of Service for Reply Memo of Law and Exhibits (Ferrara, Christopher) (Entered: 06/16/2020)
27 Amicus Curiae APPEARANCE entered by Ronald D Coleman on behalf of Ahuva Kleinman. (Attachments: # 1 Memorandum of Law Proposed
Amicus Brief, # 2 Declaration of Prospective Amicus)(Coleman, Ronald) (Entered: 06/16/2020)
28 NOTICE of Appearance by Michael McHale on behalf of All Plaintiffs (McHale, Michael) (Entered: 06/17/2020)

06/17/2020
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Text Only Minute Entry for proceedings held before Senior Judge Gary L. Sharpe: CRD: John Law; Motion Hearing held on 6/17/2020 re 7
MOTION for Temporary Restraining Order and 2 MOTION for Temporary Restraining Order filed by Elchanan Perr, Daniel Schonbrun, Mayer Mayerfeld, Rev. Steven Soos, Rev. Nicholas Stamos. Appearances Made via Skype: Christopher Ferrara and Michael McHale, Esqs., for plaintiff, Adrienne Kerwin, AAG, for the State defendants, Melanie Sadok and Ellen Parodi, Esqs., for defendant DiBlasio. Court turns to Supreme Court admonition. Court has reviewed all papers. Court turns to facts of the case. Court hears arguments from all parties. Court gives parties until the close of business Monday, June 22, 2020 supplement factual record and brief legal arguments no more than 10 pages in length. Court will render decision shortly thereafter. Parties clarify phase 3 issue as not from executive order but as guidance. (Court Reporter Lisa Tennyson) Time: 1:00-2:10 p.m. (jel, ) (Entered: 06/17/2020)
29 TRANSCRIPT REQUEST by Andrew M. Cuomo, Letitia James for proceedings held on 6/17/2020 before Judge Sharpe.. (Kerwin, Adrienne) (Entered: 06/17/2020)
30 TRANSCRIPT REQUEST by Bill De Blasio for proceedings held on June 17, 2020 before Judge Sharpe.. (Parodi, Ellen) (Entered: 06/17/2020)

06/22/2020

31 RESPONSE in Opposition re 2 MOTION for Temporary Restraining
Order, 7 MOTION for Temporary Restraining Order filed by Bill De Blasio. (Attachments: # 1 Exhibit(s) Parodi Dec. Exhibit 1, # 2 Exhibit(s) Parodi Dec. Exhibit 2, # 3 Exhibit(s) Parodi Dec. Exhibit 3, # 4 Exhibit(s)

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Parodi Dec. Exhibit 4, # 5 Exhibit(s) Parodi Dec. Exhibit 5, # 6 Memorandum of Law)(Parodi, Ellen) (Entered: 06/22/2020)
32 MEMORANDUM OF LAW re 7 Motion for TRO Supplemental Memo of Law in Support of Plaintiffs' Motion for TRO/Preliminary Injunction filed by Ahuva Kleinman, Mayer Mayerfeld, Elchanan Perr, Rev. Nicholas Stamos, Rev. Steven Soos. (Attachments: # 1 Exhibit(s) A - Declaration of Dr. Onder, # 2 Exhibit(s) B - Declaration of Prof. John Rao, # 3 Exhibit(s) C- EO 125 of Mayor de Blasio, # 4 Exhibit(s) D Statements of Defendants in Support of Demonstrations, # 5 Exhibit(s) E - Spread Sheet of "Open Lobbies", # 6 Exhibit(s) F - Restaurants Open in Phase 3, # 7 Exhibit(s) G - Graphic showing limitation of religious gatherings to 25%)(Ferrara, Christopher) (Entered: 06/22/2020)
33 RESPONSE in Opposition re 7 MOTION for Temporary Restraining Order filed by Andrew M. Cuomo, Letitia James. (Attachments: # 1 Exhibit(s) to Kerwin Decl., # 2 Declaration of Brad Hutton, # 3 Exhibit(s) to Hutton Decl., # 4 Memorandum of Law)(Kerwin, Adrienne) (Entered: 06/22/2020)
34 REPLY to Response to Motion re 7 MOTION for Temporary Restraining Order , 2 MOTION for Temporary Restraining Order -Proposed Submission filed by Ahuva Kleinman. (Attachments: # 1 Exhibit(s) NYS Guidelines for Religious and Funeral Services)(Coleman, Ronald) (Entered: 06/25/2020)
35 MEMORANDUM-DECISION AND ORDER - That plaintiffs' application for a preliminary injunction (Dkt. Nos. 2,7) is GRANTED. That defendants are ENJOINED and RESTRAINED as follows: (1) from enforcing any indoor gathering limitations against plaintiffs greater than imposed for Phase 2 industries, provided that plaintiffs follow social distancing requirements as set forth in the applicable executive orders and guidance; and (2) from enforcing any limitation for outdoor gatherings provided that participants in such gatherings follow social distancing requirements as set forth in the applicable executive orders and guidance. That Kleinman's motion for leave to appear as amicus curiae (Dkt. No. 27) is DENIED. Signed by Senior Judge Gary L. Sharpe on 6/26/2020. (jel, ) (Entered: 06/26/2020)
36 TRANSCRIPT of Proceedings: Motion Hearing held on June 17, 2020, before Judge Gary L. Sharpe, Court Reporter: Lisa L. Tennyson, Telephone number: (518) 257-1823. IMPORTANT NOTICE REDACTION OF TRANSCRIPTS: In order to remove personal identifier data from the transcript, a party must electronically file a Notice of Intent to Request Redaction with the Clerk's Office within 5 business days of this date. The policy governing the redaction of personal

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information is located on the court website at www.nynd.uscourts.gov. Read this policy carefully. If no Notice of Intent to Redact is filed within 5 business days of this date, the court will assume redaction of personal identifiers is not necessary and the transcript will be made available on the web 90 days from today's date. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 7/20/2020. Redacted Transcript Deadline set for 7/30/2020. Release of Transcript Restriction set for 9/28/2020. Notice of Intent to Redact due by 7/6/2020 (lt, ) (Entered: 06/29/2020)
37 MOTION for Preliminary Injunction Motion Hearing set for 7/1/2020 02:00 PM in Albany before Senior Judge Gary L. Sharpe Response to Motion due by 6/15/2020 Reply to Response to Motion due by 6/22/2020. filed by Ken McGuire LAW OFFICES OF KENNETH MCGUIRE. (McGuire, Kenneth) (Entered: 06/30/2020)
38 TEXT ONLY ORDER - Pending is an "Application for Preliminary Injunction" filed by Kenneth McGuire, an attorney admitted to practice in this court in 1994, who represents no parties to this action. (Dkt. No. 37.) It is not at all clear who or what McGuire represents. He purports to seek relief on behalf of "Auto racing facilities located and operating in the State of New York... including, but not limited to, Lebanon Valley Speedway, W. Lebanon, N.Y." (Id. at 1.) McGuire argues that the court's June 26, 2020 Memorandum-Decision and Order applies to the interests that he represents. (Id. at 2-4.) Among other things, the application is procedurally improper. It was filed by an attorney who represents undisclosed entities that are not parties to this action. It is not compliant with Rule 7.1 of the Local Rules of Practice either. Lastly, the motion is obviously without merit, and arguably frivolous. For all of these reasons, the application for a preliminary injunction (Dkt. No. 37) is DENIED. IT IS SO ORDERED. Issued by Senior Judge Gary L. Sharpe on 7/1/2020. (jel, ) (Entered: 07/01/2020)
39 Letter Motion from Adrienne J. Kerwin for Andrew M. Cuomo, Letitia James requesting court approval of stipulated date by which to respond to the complaint, and adjournment of Rule 16 conference and associated dates submitted to Judge Stewart . (Kerwin, Adrienne) (Entered: 07/02/2020)
40 TEXT ORDER granting the joint 39 Letter Request to extend the time in which all Defendants are to file a response to the Complaint in this matter and to reschedule the Rule 16 Initial Conference and corresponding deadlines. Defendants shall file a response to the Complaint on or before September 15, 2020. The Rule 16 Initial Conference is RESCHEDULED to September 30, 2020 at 10:00 AM

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before the undersigned. Counsel are directed to file a proposed Civil Case Management Plan and exchange Mandatory Disclosures on or before September 23, 2020. Pursuant to Local Rule 26.2, Mandatory Disclosures are to be exchanged among the parties but are NOT to be filed with the Court. SO ORDERED by Magistrate Judge Daniel J. Stewart on 7/7/2020. (mab) (Entered: 07/07/2020)
41 PETITION TO INTERVENE AS A PLAINTIFF OF INTERVENOR
filed by Christopher Earl Strunk. (Attachments: # 1 Letter, # 2 Envelope) Motions referred to Magistrate Judge Daniel J. Stewart. (kmp) (Entered: 07/21/2020)
42 TEXT ONLY ORDER --- Pending is proposed intervenor Christopher Earl Strunk's motion to intervene. (Dkt. No. 41.) The motion fails to satisfy the requirement that it "must state the grounds for intervention and be accompanied by a pleading that sets out the claim or defense for which intervention is sought." Fed. R. Civ. P. 24(c). And, in any event, it is not apparent that Strunk "has a claim or defense that shares with the main action a common question of law or fact" such that permissive intervention, the only apparent basis for intervention here, would be warranted. Fed. R. Civ. P. 24(b)(1)(B). For these reasons, the motion, (Dkt. No. 41), is DENIED. IT IS SO ORDERED. Issued by Senior Judge Gary L. Sharpe on 7/21/2020. (Copy served via regular mail upon movant)(jel, ) (Entered: 07/21/2020)
43 MOTION for Reconsideration as to the # 42 TEXT ONLY ORDER on Motion to Intervene filed by Christopher Earl Strunk. (Attachments: # 1 Envelope) (kmp) (Entered: 07/24/2020)
44 MOTION for Preliminary Injunction filed by Jenna M. DiMartile, Justin G. Crawford, Bradley M. Markowski. (Attachments: # 1 Declaration of Phillip Oswald in support, # 2 Memorandum of Law of Phillip Oswald in support, # 3 Proposed Intervener Complaint, # 4 Exhibit(s) A-J to Proposed Intervener Complaint, # 5 Declaration of Lucas James with Exhibits in support) (Oswald, Phillip) (Entered: 07/24/2020)
45 NOTICE OF APPEAL as to 35 Order on Motion for TRO,,,,,,, by Andrew M. Cuomo, Letitia James. Filing fee $ 505, receipt number ANYNDC-5185883. (Kerwin, Adrienne) (Entered: 07/27/2020)
46 NOTICE OF APPEAL as to 35 Order on Motion for TRO,,,,,,, and Preliminary Injunction by Bill De Blasio. Filing fee $ 505, receipt number ANYNDC-5185923. (Sadok, Melanie) (Entered: 07/27/2020)
47 Emergency MOTION for Temporary Restraining Order by August N. Santore, Jr, Matt Shaw, James R. Young, Kevin J. Fritschler. (Attachments: # 1 Declaration Counsel pursuant to Local R. 7.1(c),

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# 2 Proposed complaint, # 3 Memorandum of Law, # 4 Declaration August N. Santore, Jr., # 5 Declaration Matt Shaw, # 6 Declaration James R. Young, # 7 Declaration Kevin J. Frischler)(Coleman, Ronald) (Entered: 07/27/2020)
48 ELECTRONIC NOTICE AND CERTIFICATION sent to US Court of
Appeals as to the # 45 Notice of Appeal and # 46 Notice of Appeal. (kmp) (Entered: 07/28/2020)
49 TEXT ONLY ORDER - Pending is proposed intervenor Christopher Earl Strunk's motion for reconsideration, (Dkt. No. 43), of the court's text only order, which denied his motion to intervene, (Dkt. No. 42). Motions for reconsideration proceed in the Northern District of New York under Local Rule 7.1(g). "In order to prevail on a motion for reconsideration, the movant must satisfy stringent requirements." In re C-TC 9th Ave. P'ship, 182 B.R. 1, 2 (N.D.N.Y. 1995). Such motions "will generally be denied unless the moving party can point to controlling decisions or data that the court overlookedmatters, in other words, that might reasonably be expected to alter the conclusion reached by the court." Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995) (citation omitted). The prevailing rule "recognizes only three possible grounds upon which motions for reconsideration may be granted; they are (1) an intervening change in controlling law, (2) the availability of new evidence not previously available, or (3) the need to correct a clear error of law or prevent manifest injustice." In re C-TC 9th Ave. P'ship, 182 B.R. at 3 (citation omitted). Strunk has completely failed to meet the stringent standard for reconsideration and his motion, (Dkt. No. 43), is, therefore, denied. IT IS SO ORDERED. Issued by Senior Judge Gary L. Sharpe on 7/28/2020. (Copy served via regular mail to Christopher Earl Strunk)(jel, ) (Entered: 07/28/2020)
50 TEXT ONLY ORDER - Pending are two motions, which seek, among other things, permissive intervention pursuant to Rule 24(b)(1) of the Federal Rules of Civil Procedure. (Dkt. Nos. 44, 47.) As that rule indicates, "[o]n timely motion, the court may permit anyone to intervene who:... has a claim or defense that shares with the main action a common question of law or fact." Fed. R. Civ. P. 24(b)(1). "In exercising its discretion, the court must consider whether the intervention will unduly delay or prejudice the adjudication of the original parties' rights." Fed. R. Civ. P. 24(b)(3). Having carefully reviewed the submissions of both groups of proposed intervenors, (Dkt. Nos. 44, 47), the court is unpersuaded that it should exercise its great discretion. In the broadest terms, there are common questions of law or fact and the motions are likely timely, but the delay and prejudice to the parties in this matter, all of whom are represented by competent counsel capable of effectively advancing the interests of the parties they represent, that would result from permitting intervention, even if not overwhelming, requires denial of

09/10/2020 09/14/2020
10/02/2020

the motions. Accordingly, both motions to intervene, (Dkt. Nos. 44, 47), are DENIED; and the motions are denied in all other respects as moot. IT IS SO ORDERED. Issued by Senior Judge Gary L. Sharpe on 7/28/2020. (jel, ) (Entered: 07/28/2020)
51 Letter Motion for Bill De Blasio requesting Extension of Time to Respond to Complaint and Associated Dates submitted to Judge Stewart . (Parodi, Ellen) (Entered: 09/10/2020)
52 TEXT ORDER: On September 10, 2020, Defendants jointly filed a Letter Request seeking an extension of time to file a response to the Complaint in this matter. Dkt. No. 51 . Based upon the reasons set forth in the submission and upon the consent of the parties, the request is GRANTED and Defendants shall file an Answer or otherwise respond to the Complaint by October 2, 2020. The Rule 16 Initial Conference set for September 30, 2020 before the undersigned and the deadline for the parties to submit a proposed Civil Case Management Plan and exchange Mandatory Disclosures are ADJOURNED without date and will be rescheduled upon the filing of Defendants' Answers. SO ORDERED by Magistrate Judge Daniel J. Stewart on 9/14/2020. (mab) (Entered: 09/14/2020)
53 ANSWER to 1 Complaint, by Bill De Blasio.(Sadok, Melanie) (Entered: 10/02/2020)

10/02/2020

54 ANSWER to 1 Complaint, by Andrew M. Cuomo, Letitia James.(Kerwin, Adrienne) (Entered: 10/02/2020)

10/08/2020 10/08/2020 10/09/2020
10/09/2020

55 STATUS REPORT by Bill De Blasio. (Sadok, Melanie) (Entered: 10/08/2020)
56 STATUS REPORT Plaintiffs' Reply to Defendant de Blasio's "status report" by Mayer Mayerfeld, Elchanan Perr, Rev. Nicholas Stamos, Rev. Steven Soos. (Attachments: # 1 Exhibit(s))(Ferrara, Christopher) (Entered: 10/08/2020)
57 AMENDED COMPLAINT and Exhibits against All Defendants filed by Elchanan Perr, Rev. Steven Soos, Rev. Nicholas Stamos, Mayer Mayerfeld.(Ferrara, Christopher) Modified on 10/13/2020 to correct the text and specify who filed the amended complaint. (kmc) (Entered: 10/09/2020)
58 Second MOTION for Temporary Restraining Order by Mayer Mayerfeld, Elchanan Perr, Rev. Nicholas Stamos, Rev. Steven Soos. (Attachments:
# 1 Memorandum of Law In support of OTSC under Rule 7.1(e))(Ferrara, Christopher) (Entered: 10/09/2020)

10/09/2020 10/09/2020
10/09/2020 10/09/2020 10/09/2020 10/09/2020 10/09/2020

59 STATUS REPORT re application for OTSC by Mayer Mayerfeld, Elchanan Perr, Rev. Nicholas Stamos, Rev. Steven Soos. (Ferrara, Christopher) (Entered: 10/09/2020)
60 TEXT ONLY ORDER - Pending is plaintiffs' second application for a temporary restraining order (TRO) on an expedited basis. (Dkt. No. 58.) Plaintiffs also filed an amended complaint. (Dkt. No. 57.) A review of the papers seems to reflect that plaintiffs have added new defendants, which have not been served, as well as new claims, which plaintiffs appear to argue are subject to the court's prior orders. Accordingly, the second application for a TRO is denied with leave to renew once plaintiffs have properly served defendants, and notified the court as such. Further, plaintiffs are directed to update their status report, (Dkt. No. 56). Issued by Senior Judge Gary L. Sharpe on 10/9/2020. (jel, ) (Entered: 10/09/2020)
61 REQUEST FOR ISSUANCE OF SUMMONS(ES): Daniel Schonbrun is requesting summons(es) be issued as to (Ferrara, Christopher) (Entered: 10/09/2020)
62 REQUEST FOR ISSUANCE OF SUMMONS(ES): Elchanan Perr is requesting summons(es) be issued as to (Ferrara, Christopher) (Entered: 10/09/2020)
63 REQUEST FOR ISSUANCE OF SUMMONS(ES): Mayer Mayerfeld is requesting summons(es) be issued as to (Ferrara, Christopher) (Entered: 10/09/2020)
64 REQUEST FOR ISSUANCE OF SUMMONS(ES): Daniel Schonbrun is requesting summons(es) be issued as to (Ferrara, Christopher) (Entered: 10/09/2020)
65 REQUEST FOR ISSUANCE OF SUMMONS(ES): Elchanan Perr is requesting summons(es) be issued as to (Ferrara, Christopher) (Entered: 10/09/2020)

10/09/2020 10/09/2020 10/13/2020

66 REQUEST FOR ISSUANCE OF SUMMONS(ES): Mayer Mayerfeld is requesting summons(es) be issued as to (Ferrara, Christopher) (Entered: 10/09/2020)
67 REQUEST FOR ISSUANCE OF SUMMONS(ES): Daniel Schonbrun is requesting summons(es) be issued as to (Ferrara, Christopher) (Entered: 10/09/2020)
68 SUMMONS ISSUED as to Keith M. Corlett (Attachments: # 1 Summons Issued for Howard A. Zucker, # 2 Summons Issued for Betty A. Rosa, # 3 Summons Issued for Empire State Development Corporation, # 4 Summons Issued for Dave A. Chokshi, # 5 Summons Issued for Terence A. Monahan, # 6 Summons Issued for Richard Carranza)(kmc) (Entered: 10/13/2020)

10/13/2020 10/15/2020 10/15/2020

***Answer due date updated for Andrew M. Cuomo answer due 10/23/2020; Bill De Blasio answer due 10/23/2020; Letitia James answer due 10/23/2020. (kmc) (Entered: 10/13/2020)
69 Third MOTION for Temporary Restraining Order Order to Show Cause, Memo of Law and Exhibits and Declarations of plaintiffs Avigdor, Ligresti, Mayerfeld, Perr and Schonbrun by Morton Avigdor.(Ferrara, Christopher) (Entered: 10/15/2020)
70 STATUS REPORT per Court's directive by Morton Avigdor. (Ferrara, Christopher) (Entered: 10/15/2020)

10/15/2020 10/15/2020

71 SUMMONS Returned Executed by Jeanette Ligresti. Empire State Development Corporation served on 10/15/2020, answer due 11/5/2020. (Ferrara, Christopher) (Entered: 10/15/2020)
72 LETTER dated 10/12/20 from non-party Peter L. Grioco. {With attached envelope} (kmc) (Entered: 10/16/2020)

10/16/2020 10/16/2020 10/16/2020

73 AFFIDAVIT of Service for Summons, Verified Complaint, First Amended Verified Complaint, Filing Order/General Order #25, Amended Order to Show Cause, [Updated] Memorandum of Law in Support of Motion for Temporary Restraining Order and Preliminary Injunction, Exhibits, and Unsworn Declarations of Elchanan Perr, Jeanette Ligresti, Mayer Mayerfeld, Daniel Schonbrun, and Morton Avigdor served on Codefendant Keith M. Corlett on October 15, 2020, filed by Morton Avigdor. (Ferrara, Christopher) (Entered: 10/16/2020)
74 AFFIDAVIT of Service for Summons, Verified Complaint, First Amended Verified Complaint, Filing Order/General Order #25, Amended Order to Show Cause, [Updated] Memorandum of Law in Support of Motion for Temporary Restraining Order and Preliminary Injunction, Exhibits, and Unsworn Declarations of Elchanan Perr, Jeanette Ligresti, Mayer Mayerfeld, Daniel Schonbrun, and Morton Avigdor served on Codefendant Betty A. Rosa on October 15, 2020, filed by Elchanan Perr. (Ferrara, Christopher) (Entered: 10/16/2020)
75 AFFIDAVIT of Service for Summons, Verified Complaint, First Amended Verified Complaint, Filing Order/General Order #25, Amended Order to Show Cause, [Updated] Memorandum of Law in Support of Motion for Temporary Restraining Order and Preliminary Injunction, Exhibits, and Unsworn Declarations of Elchanan Perr, Jeanette Ligresti, Mayer Mayerfeld, Daniel Schonbrun, and Morton Avigdor served on Codefendant Howard A. Zucker, M.D. on October 15, 2020, filed by Mayer Mayerfeld. (Ferrara, Christopher) (Entered: 10/16/2020)

10/16/2020
10/16/2020 10/16/2020 10/16/2020 10/16/2020 10/16/2020 10/16/2020

76 TEXT ONLY ORDER - Plaintiffs have filed an application for a temporary restraining order, or, in the alternative, preliminary injunction, brought by order to show cause. (Dkt. No. 69.) Plaintiffs apparently seek to preclude enforcement of Governor Cuomo's Executive Order 202.68, and, arguably, to litigate compliance with the court's order already in place, (Dkt. No. 35). The court will take no action until defendants have had an opportunity to respond to the current application, and all parties have had an opportunity to weigh in on whether a hearing is necessary to resolve any factual issues. Defendants shall file a response to plaintiffs' application on or before October 20, 2020 at 12:00PM. Plaintiffs may file a reply on or before October 21, 2020 at 12:00PM. A video conference via Skype will be scheduled thereafter. Plaintiffs shall serve a copy of this Text Only Order on defendants who have not yet appeared by overnight mail and electronic mail, if available. Finally, all parties who have not yet done so, shall file a notice of appearance immediately. IT IS SO ORDERED. Issued by Senior Judge Gary L. Sharpe on 10/16/2020. (jel, ) (Entered: 10/16/2020)
77 NOTICE of Appearance by Melanie Sadok on behalf of Richard Carranza, Dave A. Chokshi, Terence A. Monahan (Sadok, Melanie) (Entered: 10/16/2020)
78 NOTICE of Appearance by Adrienne J. Kerwin on behalf of Keith M. Corlett, Andrew M. Cuomo, Empire State Development Corporation, Letitia James, Betty A. Rosa, Howard A. Zucker (Kerwin, Adrienne) (Entered: 10/16/2020)
79 NOTICE of Appearance by Ellen Parodi on behalf of Richard Carranza, Dave A. Chokshi (Parodi, Ellen) (Entered: 10/16/2020)
80 NOTICE of Appearance by Ellen Parodi on behalf of Terence A. Monahan (Parodi, Ellen) (Entered: 10/16/2020)
81 NOTICE of Appearance by Christopher A. Ferrara on behalf of Morton Avigdor, Jeanette Ligresti (Ferrara, Christopher) (Entered: 10/16/2020)
82 NOTICE of Appearance by Michael McHale on behalf of Morton Avigdor, Jeanette Ligresti (McHale, Michael) (Entered: 10/16/2020)

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 Case 1:20-cv-00651-GLS-DJS Document 1 Filed 06/10/20 Page 1 of 53

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF NEW YORK

REV. STEVEN SOOS,

)

)

REV. NICHOLAS STAMOS,

)

)

DANIEL SCHONBRUN,

)

)

ELCHANAN PERR and

)

)

MAYER MAYERFELD

)

)

Plaintiffs,

)

v.

)

)

ANDREW M. CUOMO, Governor of the )

State of New York, in his official capacity, )

)

LETITIA JAMES, Attorney General of the )

State of New York in her official capacity, )

and

)

)

BILL DE BLASIO, Mayor of the City )

of New York, in his official capacity,

)

)

Defendants.

)

Case No. 1:20-CV-0651 (GLS/DJS)

VERIFIED COMPLAINT FOR CIVIL RIGHTS VIOLATIONS, INJUNCTIVE RELIEF
AND A DECLARATORY JUDGMENT

Plaintiffs, by and through their counsel, complain as follows:

NATURE OF ACTION

1. This civil rights action challenges a series of executive orders issued by defendant

Governor Andrew M. Cuomo (Cuomo) and enforced by him, by defendant Attorney General

Letitia James (James) and by defendant Mayor Bill de Blasio.

2. This action seeks declaratory and injunctive relief for deprivations sustained by

plaintiffs, and for violations committed by said defendants, acting under color of state law,

Case 1:20-cv-00651-GLS-DJS Document 1 Filed 06/10/20 Page 2 of 53
against plaintiffs’ rights as guaranteed by the First, Fifth and Fourteenth Amendments of the United States Constitution, and for violations of New York State Executive Law § 29-a, and New York Constitution Articles III, §1; IV, §§ 1 and 3; and VI.
PARTIES 3. Plaintiff Rev. Steven Soos is a Catholic priest who engages in priestly ministry in a main church and other chapels located in this District in the North Country region of the state. 4. Plaintiff Rev. Nicholas Stamos is a Catholic priest who assists Rev. Soos in said priestly ministry. 5. Plaintiff Mayer Mayerfeld is a sincere practitioner of the Orthodox Jewish faith who resides in Brooklyn, New York. 6. Plaintiff Elchanan Perr is a sincere practitioner of the Orthodox Jewish faith who resides in Brooklyn, New York. 7. Plaintiff Daniel Schonborn is a sincere practitioner of the Orthodox Jewish faith who resides in Brooklyn, New York. 8. Defendant Cuomo is and was the Governor of the State of New York and is and was acting under color of State law, and in his official capacity, at all times relevant to the allegations made by plaintiffs herein. Defendant Cuomo’s principal place of business is located at the State Capitol Building, Albany, New York. He is sued in his official capacity. 9. Defendant James is and was the Attorney General for the State of New York, and is and was acting under color of State law, and in her official capacity, at all times relevant to the allegations made by plaintiffs herein. Defendant James’ principal place of business is located at the State Capitol Building, Albany, New York. She is sued in her official capacity.
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10. Defendant Mayor Bill de Blasio is Mayor of the City of New York and is the final decision-maker in New York City concerning enforcement of the challenged executive orders, including the gathering limits. He is sued in his official capacity.
JURISDICTION AND VENUE 11. This action raises federal questions under the First and Fourteenth Amendments of the United States Constitution and under federal law, 28 U.S.C. §§ 2201 and 2202 (Declaratory Judgments), as well as 42 U.S.C. §§ 1983, 1988, and 1920. 12. This Court has jurisdiction over these federal claims under 28 U.S.C. §§ 1331 and 1343. 13. This Court has authority to grant the requested injunctive relief under 28 U.S.C. § 1343(3), the requested declaratory relief pursuant to 28 U.S.C. §§ 2201 and 2202, and plaintiffs’ prayer for costs, including reasonable attorneys’ fees, under 42 U.S.C. § 1988 and 28 U.S.C. § 1920. 14. Venue is proper in the Northern District pursuant to 28 U.S.C. § 1391, as at least one defendant resides in this District and a substantial part of the events giving rise to the claims herein arose in this District, where two of the plaintiffs reside.
INTRODUCTION “It is incumbent on the courts to ensure decisions are made according to the rule of law, not hysteria…. One hopes that this great principle—essential to any free society, including ours—will not itself become yet another casualty of COVID-19.” David F. Viviano, Chief Justice, Supreme Court of Michigan in Department of Health v. Manke, 2020 WL 3033312, --- N.W. 2d--- (concurring opinion).
15. In an unprecedented abuse of power, defendants have exploited the COVID-19 pandemic to create, over the past three months, a veritable dictatorship by means of a complex web of defendant Cuomo’s executive orders, by which defendants have imposed and selectively
3

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enforced “social distancing” under a “lockdown” of virtually every aspect of the social, political, religious and economic life of New York’s 8.3 million residents on the pretext of “public health,” but with numerous exceptions defendants deem permissible according to their value judgments, including mass demonstrations of thousands of people of which they approve.
16. Defendants Cuomo, James and de Blasio have enforced Cuomo’s “lockdown” by threat of criminal prosecution and actual prosecution, including $1000.00 fines for the newly created offense of violating Cuomo’s “Social Distancing Protocol” (SDP).
17. As alleged more particularly below, Cuomo’s constantly morphing official Guidance Document for the interpretation and application of his executive orders and the SDP have specifically forbidden “congregate services within houses of worship” and “congregations of groups for religious service or ceremony,” thus singling out the free exercise of religion for strict regulation under the SDP.
18. This explicit ban on “congregate worship” was followed by a strict ban on “nonessential gatherings” of more than ten people that still applies in New York City and other regions not in “Phase Two” of defendant Cuomo’s elaborate, arbitrary and pseudo-scientific “NY Forward” Plan (NYFP) for “reopening New York and building back better.”1/
19. The ten-person limit on “non-essential” gatherings has reduced the religious services that plaintiffs conduct or participate in to miniscule congregations, as more particularly alleged below.
20. On or about June 5, however, defendant Cuomo announced that he had “relaxed” his SDP to “allow” religious gatherings at 25% of the capacity of houses of worship, thereby specifically regulating religion—and only religion—once again. This “relaxation” applies only 1/https://www.governor.ny.gov/sites/governor.ny.gov/files/atoms/files/NYForwardReopeningGui de.pdf.
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where “Phase Two” of NYFP is underway: the Finger Lakes, Central New York, Mohawk Valley, Southern Tier, and the North Country of New York, where plaintiffs Soos and Stamos preside over their Catholic congregations. The ten-person limit on “non-essential gatherings” in the outdoors apparently still operates in this region
21. Outside of “Phase Two” regions, the ten-person limit on “non-essential gatherings,” both indoors and outdoors, remains in effect, including New York City, where “Phase One” began only on June 8 and “Phase Two” has no specific start date in the foreseeable future. The ten-person limit thus continues to apply to the Orthodox Jewish religious gatherings in which plaintiffs Schonbrun, Perr and Mayerfeld participate.
22. Yet, while defendants jointly impose this arbitrary, pseudo-scientific regime of strict gathering limits for some groups and activities but not others, they are permitting closely packed gatherings of thousands to protest the wrongful death of George Floyd at the hands of a police officer, which have been taking place in New York City and every other major city in New York State day-after-day since Floyd’s death on May 25.
23. As more particularly alleged below, the ongoing mass gatherings in New York State have been approved by defendants Cuomo and de Blasio even though they blatantly violate the challenged executive orders, the SDP and the NYFP, including the challenged gathering limits, while de Blasio himself has personally joined and addressed at least one such gathering.
24. Defendants Cuomo and de Blasio (and governors and mayors in other states as well) have thus revealed that the SDP regime is not a neutral and generally applicable policy but rather a content-based regulation of First Amendment-protected activity, riddled with exceptions for the activities, including mass protests, defendants deem permissible according to their value judgments of what is “essential.”
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25. Favored businesses, entities and activities, as well as favored mass demonstrations such as those over the death of George Floyd, are totally exempt from the challenged gathering limits, while defendants irrationally and capriciously continue to forbid religious ceremonies, high-school graduations, children playing in the park, and other comparatively tiny gatherings on the now patently specious grounds that they will cause death if allowed to occur.
26. Moreover, the absence of any “spike” in COVID-19 cases following the George Floyd protests and other mass gatherings people have joined in defiance of “social distancing” regimes in New York and other states, including Spring Break in Florida and massive partying at the Lake of the Ozarks, have shown that the “science” behind the “lockdown” was flawed at best and should no longer deter judicial intervention in defense of First Amendment liberty for all, not just the groups and activities defendants favor.
27. It is time to end New York’s experiment in absolute monarchy. Plaintiffs seek immediate judicial relief from the gathering limits in the challenged executive orders by way of a temporary restraining order, followed by a preliminary and permanent injunction and a declaratory judgment that the challenged executive orders are unconstitutional and void, both facially and as applied, because they deprive plaintiffs of the free exercise of religion, freedom of speech, freedom of assembly and freedom of expressive association without a compelling state interest or even a rational basis to justify those deprivations.
ALLEGATIONS COMMON TO ALL COUNTS The Challenged Executive Orders
28. On March 7, 2020, defendant Cuomo issued Executive Order 202 (Order 202), which, in relevant part, declared a State Disaster Emergency for the State of New York based
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upon the fact that travel-related cases and community contact transmission of COVID-19 had been documented in the State. See Exhibit A, p. 1.
29. Executive Order 202 (Order 202) was followed by a series of executive orders (Orders) purporting to regulate literally all social, political, religious and business activity in the State of New York. The only authority cited for this massive exercise in overnight social engineering is Section 29-a of Article 2-B of the Executive Law, Direction Of State Agency Assistance in a Disaster Emergency, which makes no provision whatsoever for limiting or prohibiting social, political, religious and business activities of the general population.
30. All of the Orders are premised on Order 202’s original proclamation that “travelrelated cases and community contact transmission of COVID-19 have been documented in New York State and are expected to continue…” Id.
31. The scheme of Orders is being enforced by “All enforcement mechanisms by state or local governments [which] shall continue to be in full force and effect until June 13, 2020 unless later extended or amended by a future Executive Order,” under Section 12 of the Public Health Law, and by $1000.00 fines for violation of the SDP set forth in Cuomo’s unilaterally dictated “New York on PAUSE” plan (“PAUSE” Plan), whose latest iteration, in pertinent part, is as follows:
1. Effective at 8PM on Sunday, March 22, all non-essential businesses statewide will be closed;
2. Non-essential gatherings of individuals of any size for any reason (e.g. parties, celebrations or other social events) are canceled or postponed at this time;
3. Any concentration of individuals outside their home must be limited to workers providing essential services and social distancing should be practiced;
4. When in public individuals must practice social distancing of at least six feet from others;
5. Businesses and entities that provide other essential services must implement rules that help facilitate social distancing of at least six feet;
7

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6. Individuals should limit outdoor recreational activities to non-contact and avoid activities where they come in close contact with other people;
7. Individuals should limit use of public transportation to when absolutely necessary and should limit potential exposure by spacing out at least six feet from other riders;
8. Sick individuals should not leave their home unless to receive medical care and only after a telehealth visit to determine if leaving the home is in the best interest of their health;
9. Young people should also practice social distancing and avoid contact with vulnerable populations; and
10. Use precautionary sanitizer practices such as using isopropyl alcohol wipes.
The maximum fine for violations of the state's social distancing protocol is $1,000.
See Exhibit B (emphasis added). 32. The “PAUSE Plan” provides a web-based form for turning in one’s fellow
citizens to defendant Cuomo’s office for enforcement action based on violations of the SDP, including forbidden “non-essential gatherings,” as to which the form requests “Estimated Number of Individuals Observed at Location.” See Exhibit C.
33. Defendant de Blasio has invoked the laws and law enforcement authorities of the City of New York to enforce all of defendant Cuomo’s decrees, so providing in his Executive Orders denominated EO 98, EO-103 and EO 113-116.
34. On March 12, defendant Cuomo issued Executive Order 202.1, cancelling or postponing any “gathering” over 500 individuals. Exhibit A, p. 4.
35. On March 16, the ban on “gatherings” was tightened to 50 persons under Cuomo’s Executive Order 202.3. See Exhibit A, p. 4.
36. On March 18, under Executive Order 202.6, defendant Cuomo decreed that all businesses and non-profits in the State must reduce their workforces by 50% except for a vast
8

Case 1:20-cv-00651-GLS-DJS Document 1 Filed 06/10/20 Page 9 of 53
array of favored businesses and entities Cuomo providing “services or functions” Cuomo deems
“essential” as follows:
Any essential business or entity providing essential services or functions shall not be subject to the in-person restrictions. This includes essential health care operations including research and laboratory services; essential infrastructure including utilities, telecommunication, airports and transportation infrastructure; essential manufacturing, including food processing and pharmaceuticals; essential retail including grocery stores and pharmacies; essential services including trash collection, mail, and shipping services; news media; banks and related financial institutions; providers of basic necessities to economically disadvantaged populations; construction; vendors of essential services necessary to maintain the safety, sanitation and essential operations of residences or other essential businesses; vendors that provide essential services or products, including logistics and technology support, child care and services needed to ensure the continuing operation of government agencies and provide for the health, safety and welfare of the public…
See Exhibit A, p. 17.
37. On March 20, under Executive Order 202.8, defendant Cuomo ordered a 100%
reduction in the workforces of “non-essential” businesses and non-profits—that is, their total
closure—with violations to be punished under Section 12 of the Public Health Law. See Exhibit
A, p. 21.
38. On March 23, in Executive Order 202.10, Cuomo decreed a total ban on “non-
essential gatherings of any size for any reason.” See Exhibit A, p. 25.
39. The total ban on “non-essential gatherings” was pursuant to Cuomo’s updated
“PAUSE” Plan, noted above.
40. On May 14, in Order 202.31, defendant Cuomo decreed that he was continuing
until May 28, 2020 the closure of the aforesaid “non-essential” businesses and entities and the
aforesaid “postponement or cancellation of all non-essential gatherings of individuals of any size
for any reason (e.g. parties, celebrations, games, meetings or other social events), which together
constitute New York On PAUSE.” See Exhibit A, p. 69.
9

Case 1:20-cv-00651-GLS-DJS Document 1 Filed 06/10/20 Page 10 of 53
41. Order 202.31 further decrees that “All enforcement mechanisms by state or local governments shall continue to be in full force and effect until June 13, 2020 unless later extended or amended by a future Executive Order.” Order 202.31 thus maintains all local law enforcement agencies as agents for the enforcement of defendant Cuomo’s Orders, including the SDP and its gathering limits, with $1000.00 fines for violation.
42. It was not until May 21, under Executive Order 202.32, that defendant Cuomo decreed that the previous ban on all “non-essential gatherings” under Order 202.10 was “modified to permit a gathering of ten or fewer individuals for any religious service or ceremony, or for the purposes of any Memorial Day service or commemoration, provided that social distancing protocols and cleaning and disinfection protocols required by the Department of Health are adhered to…” See, Exhibit A, p. 71.
43. Order 202.32, further specifically targeting religious services, also provides that “any drive-in or remote religious service may continue in excess of the ten person limit so long as there is no in-person contact between participants.” Exhibit A, p. 71.
44. On May 22, under Executive Order 202.33, defendant Cuomo granted general “permission” for “any non-essential gathering of ten or fewer individuals, for any lawful purpose or reason, provided that social distancing protocols and cleaning and disinfection protocols required by the Department of Health are adhered to.” See, Exhibit A, p. 74 (emphasis added).
45. On May 28, under Order 202.34, defendant Cuomo continued the “required postponement, cancellation, or restriction on size of all non-essential gatherings of more than ten individuals” but allowed the “Phase One reopening” for “non-essential businesses” in numerous counties and in the North Country, where plaintiffs Soos and Stamos engage in their priestly ministry. See Exhibit A, p. 75.
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46. On May 29, under Executive Order 202.35, the “PAUSE” Plan was yet again modified to end workplace reductions and restrictions for “non-essential businesses” in the Finger Lakes, Central New York, Mohawk Valley, Southern Tier and the North Country regions engaged in “Professional Services, Administrative Support, Information Technology, Real Estate services, Building and Property Management, Leasing, Rental, and Sales Services, Retail In-store Shopping, Rental, Repair, and Cleaning, Barbershops and Hair Salon (limited services), and Motor Vehicle Leasing, Rental, and Sales.” Said businesses need only follow “the guidance promulgated by the Department of Health”—i.e., social distancing of six feet and sanitization of the premises. See, Exhibit A, p. 77.
47. While plaintiff Soos’ and plaintiff Stamos’ ministry is conducted in North Country towns, still no allowance was made for gatherings of more than ten persons for religious services or other non-business purposes, not even with “social distancing,” and all of plaintiffs’ churches still remained under the ten-person limit for “non-essential gatherings” as of May 29.
48. On June 2, under Order 202.36, defendant Cuomo decreed: “Any region that meets the prescribed public health and safety metrics as determined by the Department of Health for Phase One reopening may allow outdoor, low-risk recreational activities and businesses providing such activities, as determined by Empire State Development Corporation, to be permitted to operate, in accordance with Department of Health guidance.” See Exhibit A, p. 79.
49. Order 202.36, issued nearly 90 days after defendant Cuomo invoked his alleged authority under Executive Order 202, still fails to allow “non-essential gatherings” of more than ten persons or anything other than “drive-ins” for religious services. At the same time, however, it permits unlimited in-person gatherings for all of the following businesses and activities:
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Statewide: • research and laboratory services; • essential infrastructure including utilities, telecommunication, airports and transportation
infrastructure; • essential manufacturing, including food processing and pharmaceuticals; • essential retail including grocery stores and pharmacies; • essential services including trash collection, mail, and shipping services; • news media; banks and related financial institutions; • providers of basic necessities to economically disadvantaged populations; • construction; • vendors of essential services necessary to maintain the safety, sanitation and essential
operations of residences or other essential businesses; • vendors that provide essential services or products, including logistics and technology
support; child care; • services needed to ensure the continuing operation of government agencies and provide
for the health, safety and welfare of the public; • state beaches. In the North Country and other selected “Phase Two” counties: • Professional Services, Administrative Support, Information Technology, • Real estate services, Building and Property Management, Leasing, Rental, and Sales
Services, • Retail In-store Shopping, Rental, Repair, and Cleaning, • Barbershops and Hair Salon (limited services)
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• Motor Vehicle Leasing, Rental, and Sales;
• low-risk recreational activities and businesses providing such activities.
Defendant Cuomo’s “Guidance” Document Targets Religion
50. In addition to his executive orders, the SDP and the NYFP, defendant Cuomo has
caused to be published a document entitled “Guidance for Determining Whether a Business
Enterprise Is Subject to a Workforce Reduction Under Recent Executive Orders”.
51. The Guidance Document, which has changed over time in sync with defendant’s executive orders,2/ including the tightening limit on “non-essential gatherings,” has repeatedly
targeted religious exercise for strict regulation as follows:
(a) From March 20-24, the Guidance Document declared that while “[h]ouses of worship are not ordered closed… it is strongly recommended no congregate services be held and social distance maintained,” and “worship services” are specifically enumerated among the “businesses” that “must remain closed and are not eligible for designation as an essential business for purposes of this guidance.” This “guidance” appears to be self-contradictory. See Exhibit D.
(b) From March 25 to April 6 the Guidance Document tightened its regulation of religion by adding the requirement that “social distance must be maintained and compliance with DOH guidance” while reiterating that “worship services… are not eligible for designation as an essential business for purposes of this guidance.” See Exhibit E.
(c) From April 7 to April 9 the Guidance Document continued to list “worship services” as among the “businesses” that “must remain closed and are not eligible for designation as an essential business for purposes of this guidance.” See Exhibit F.
52. From April 10 to May 20 the targeting of religion by the Guidance Document was
explicit and exclusive, extending even to religious gatherings in homes and other locations
outside of houses of worship:
2/See https://esd.ny.gov/guidance-executive-order-2026. All iterations of the Guidance Document provided as exhibits to this Verified Complaint were obtained from the WayBackMachine Internet Archive at https://archive.org/web/.
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Pursuant to Executive Order 202.10, all non-essential gatherings of individuals of any size for any reasons (e.g. worship services, parties, celebrations, or other social events) are canceled or postponed. Congregate services within houses of worship are prohibited. Houses of worship may only be used by individuals and only where appropriate social distancing of, at least, six feet between people can be maintained. Further, individuals should not gather in houses of worship, homes, or other locations for religious services until the end of this public health emergency. If possible, religious leaders should consider alternative forms of worship, replacing in-person gatherings with virtual services, such as phone or conference calls, videoconference calls, or online streaming.
See Exhibit G.
53. On April 28, by way of enforcing Cuomo’s gathering limits as explained in the
Guidance Document then in effect, defendant de Blasio personally appeared in Williamsburg to
ensure that a Jewish funeral gathering was broken up by the NYPD. As he declared via his
Twitter account:
Something absolutely unacceptable happened in Williamsburg tonite: a large funeral gathering in the middle of this pandemic. When I heard, I went there myself to ensure the crowd was dispersed. And what I saw WILL NOT be tolerated so long as we are fighting the Coronavirus
See Exhibit H (emphasis added)
54. On April 28, defendant de Blasio tweeted the following warning to the Jewish
community:
My message to the Jewish community, and all communities, is this simple: the time for warnings has passed. I have instructed the NYPD to proceed immediately to summons or even arrest those who gather in large groups. This is about stopping this disease and saving lives. Period.
See Exhibit I (emphasis added)
55. From May 21 to June 5, the Guidance Document, now reflecting Cuomo’s
permission for “non-essential gatherings” of ten-or-fewer people and “drive-in” gatherings at
which people remain in their vehicles the entire time, continued to target religion by specifically
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regulating the conduct of religious services and specifically mentioning religious congregations
as subject to the ten-person limit:
However, Executive Order 202.32 allows ten or fewer people to gather for a religious service or ceremony, provided that social distancing protocols and cleaning and disinfection protocols required by the Department of Health are adhered to, and provided further, that any drive-in or remote religious service may continue in excess of the ten person limit so long as there is no in-person contact between participants. Faith leaders should continue to consider and use alternative forms of worship, replacing in-person gatherings with virtual services, such as phone or conference calls, videoconference calls, or online streaming, wherever possible, and congregations of groups for religious service or ceremony in excess of ten in-person participants remain prohibited.
Exhibit J (pertinent portion highlighted)
56. On June 6, defendant Cuomo, in Executive Order 202.38, declared that he will
now permit “non-essential gatherings for houses of worship at no greater than 25% of the indoor
capacity of such location, provided it is in a geographic area in Phase 2 of re-opening, and
further provided that social distancing protocols and cleaning and disinfection protocols required
by the Department of Health are adhered to.” Exhibit A, p. 82.
57. The ten-person limit on “non-essential” indoor gatherings remains in effect in
New York City and all other regions not in Cuomo’s “Phase 2,” while the same ten-person limit
appears to remain in effect outdoors throughout the entire State, even though none of the favored
businesses and entities enumerated above are subject to any gathering limits at all.
58. In explaining his “permission” for only 25% occupancy of houses of worship,
Cuomo stated:
We are going to accelerate the opening of temples, mosques, churches, In Phase 2 they can open up to 25 percent occupancy in that building….
Yes, 25% occupancy is not as easy as 100% occupancy, but 100% occupancy is a mass gathering and you really can’t do social distancing, etc. So Phase 2, 25% occupancy. That begins immediately. Be smart. Be smart. It doesn’t mean you go to a temple or a mosque and you sit right next to a person.
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You have to socially distance. Watch on the entranceway, when people tend to congregate, going through the entrance or the exit. So, we leave it to our faithbased partners to come up with a smart strategy about how to do this, but this is an acceleration for us because we’re doing so well on the metrics, but people still have to stay smart. See Exhibit K (official transcript; highlighted). 59. Yet, as pleaded below, both defendant Cuomo and defendant de Blasio approve of totally unrestricted mass gatherings of protestors numbering in the thousands, as well as indoor gatherings of protestors in theaters that are supposed to remain closed under Cuomo’s executive orders, so long as the protests and protestors meet with their approval.
Defendants Cuomo and de Blasio Exempt Favored Protestors From their “Social Distancing” Regime 60. The term “non-essential gatherings” has never been defined by defendants or their agents. The vagueness of the term allows for arbitrary and capricious application. 61. Accordingly, while the challenged gathering limits continue to be enforced against religious congregations and other “gatherings” defendants deem “non-essential,” over the past few days packed gatherings of hundreds or thousands, assembled in protest over the death of George Floyd at the hands of a police officer, have been allowed to demonstrate, march and even riot in the streets of all the major cities in New York State without any enforcement of the tenperson limit or the rest of Cuomo’s SDP. 62. For example, this mass protest occurred in Albany without opposition from defendant Cuomo:
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See Exhibit L (with photo).
63. On the contrary, during his press briefing of June 1, defendant Cuomo
condemned violence at these demonstrations but otherwise approved of them even though they
blatantly violate his ten-person limit on “non-essential gatherings”:
Andrew Cuomo: And we have to be smart in this moment. The violence in these protests obscures the righteousness of the message….
Speaker 2: Would you suggest people not go out and protest?
Andrew Cuomo: No, I think you can protest, but do it smartly and intelligently and many places have. You look at places around the country. There were protests all across the country. Protest. Just be smart about it. With this virus, you can do many things now as long as you’re smart about it, right? You can reopen, you can go into a store and you can do a lot of things, just be smart. (emphasis added) 3/.
See Exhibit M (transcript; highlighted).

3/ See video of June 1 briefing at https://youtu.be/7VssYZp_2Ho?t=2615

https://youtu.be/7VssYZp_2Ho?t=1104 and

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Speaker 3: So, what’s the difference between protesting and a business, say, in the city who wants to reopen smartly if it’s not at the phase yet that they're technically allowed to? Andrew Cuomo: Well, that’s where we’re at, but it has to be a business where you can be smart. Be smart, meaning socially distant. You don’t conduct business in a way where you have people within [sic] six feet. You have to wear the mask. You have to do the hand sanitizer. That’s where we’re going to be.4/ Id. 64. Cuomo has not imposed on thousands of George Floyd demonstrators any requirement that they “socially distance,” wear masks (although most of them do in a ritual manner) or use hand sanitizer. Nor has he imposed any limit on the size of their gatherings, even though violence and massive property damage have occurred during these gatherings in New York and elsewhere. 65. During his press briefing of June 4, Cuomo, while displaying a slide approvingly noting mass protests in Buffalo, Rochester, Syracuse, Albany and New York City, declared: “I want to thank the protestors, who were mainly peaceful, which was smart because they could make their point… I stand with the protestors on the point that we need meaningful reform.”5/ (emphasis added). See Exhibit N (transcript). 66. Confronted at the same press briefing with a question from a reporter about a Pakistani family seeking Cuomo’s permission for an in-person graduation ceremony “with social distancing,” rather than the “drive-in” ceremony he will allow, Cuomo replied contemptuously: I mean, did you hear anything that we’ve been talking about for the past 96 days? Look, I don’t want to be difficult. It’s a Pakistani immigrant family that wants to have a graduation. I get it. It’s not really relevant that they’re from Pakistan….
4/ See https://youtu.be/7VssYZp_2Ho?t=2646 at 45:20. 5/ See https://youtu.be/hijWxWO1oc4?t=166 at 2:46.
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That’s not the issue. The issue is a public health issue. You don’t want people sick and dead. That’s the issue, right? It’s about death. It’s about balancing the risk versus the reward; balancing the desires and wants versus the consequences. Right? We went through New Rochelle, Westchester. People went to a ceremony. They were having celebration and a religious ceremony… Yeah, people died. People died, right? So, yeah I know, everybody wants to go to a high school graduation. I get it. Not if they’re gonna die. Right?6/ (emphasis added) 67. It is apparent that defendant Cuomo has arrogated to himself the power to determine which gatherings among 8 million New Yorkers are “essential”—demonstrations over police brutality being one example—and which are “non-essential,” including high school graduations and religious ceremonies, according to their subjective judgment of “risk versus reward.” Cuomo’s claim that a high school graduation ceremony will kill people, while mass marches and demonstrations will not, is patently disingenuous. 68. Defendant de Blasio has likewise allowed Floyd protests without adherence to the ten-person limit, as seen in a demonstration near the Manhattan Bridge. 7/ See Exhibit O (photo):
6/ See https://youtu.be/hijWxWO1oc4?t=2112 at 35:12. 7/See image of gathering on roadway to Manhattan Bridge taken Sunday, May 31, 2020: https://www.nydailynews.com/resizer/Yl9dB6EItdTHlKMXU9BcnBdoAAU=/800x533/top/clou dfront-us-east-1.images.arcpublishing.com/tronc/UZ4VLUWR2JHK5EHYDY4BE2VOSA.JPG
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69. Another Floyd demonstration involved thousands who crowded the entire span of the Brooklyn Bridge as seen here.8/
70. Expressing solidarity with defendant Cuomo, during his press briefing of June 2,
defendant de Blasio rambled on about the supposed critical difference between the Floyd protests
on the one hand and disfavored “non-essential gatherings” on the other, offering only a vague
assurance that someday religious services would no longer be restricted as “non-essential”:
Question: While you’ve recommended that protestors stay home, for others in the city, you’ve enforced gathering bans, not recommendations.
The retail store owner who has been closed for two months and is experiencing financial ruin has been banned from opening his store. People for whom attending houses of worship are a regular part of life been have banned from doing so with more than 10 people.
Now, you’ve expressed solidarity with this particular protest cause. Is that why it’s been given dispensation to disregard all pandemic guidelines?
I know you were asked about this yesterday. And you said there’s such pain and anger, and [banning protests may be construed as] not hearing their concerns. What about the retail store owner facing imminent financial ruin, or the religious person who can’t attend a house of worship – what about their pain and anger?
So, Mr. Mayor are we in a pandemic or not? And do we have one set of rules for protestors and another for everyone else?
Thank you.
Answer: …. We’re in the middle of a national crisis, a deep-seated national crisis [over Floyd’s death]…. And I want to say: state and city, governor and I, have been totally united, that we had to have a strict, strong approach to get to these numbers. Didn’t happen by accident….
So you could say, Oh, couldn’t we have done stores, and I appreciate how painful it’s been for people to be missing religious observance, but I’ll tell you the religious leaders of this city have stood as one and said we are not going to do things prematurely, that will endanger lives….
8/ See video at https://youtu.be/q5UPlVlTEdM?t=149 20

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But this is other piece of the equation: When you see a nation, an entire nation, simultaneously grappling with an extraordinary crisis seeded in 400 years of American racism, I’m sorry, that is not the same question as the understandably aggrieved store owner or the devout religious person who wants to go back to services…. The religious services come back, that does not have to be far away, if we do the work together. And we will.9/ See Transcript, Exhibit P (highlighted; emphasis added). 71. On June 4, de Blasio, who in late April had threatened the Jewish community with arrests and prosecutions for “illegal” mass religious gatherings and personally appeared on scene to ensure the NYPD’s dispersal of a Jewish funeral, attended and addressed a mass political gathering at Cadman Plaza in memory of George Floyd where neither the ten-person limit nor the social distancing he and Cuomo prescribe for “non-essential gatherings” were in the least observed.10/ He was not wearing the mask he requires of others:11/
9/Reuvain Borchardt, “De Blasio: Only Protest Gatherings OK, Due to ‘400 Years of American Racism’,” June 2, 2020, https://hamodia.com/2020/06/02/de-blasio-allowing-protestors-defysocial-distancing-due-angst-400-years-american-racism/. A video of the encounter is found at https://youtu.be/StY9WQZtWmQ?t=3157 10/ See video of gathering: https://youtu.be/hmRM7FA3ZJ4?t=42 11/See https://nypost.com/2020/06/04/mayor-de-blasio-booed-off-stage-at-brooklyn-georgefloyd-rally/
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See Photo at Exhibit Q. 72. Days later, in Williamsburg, a small group of Hasidic children was kicked out of a
park by a police officer enforcing Cuomo’s and de Blasio’s ten-person limit on “non-essential gatherings.” See, Exhibit R (photo). 12/
73. At the same time, without objection by de Blasio or Cuomo, theaters in New York that are supposed to be closed until “Phase Four” of Cuomo’s reopening plan have opened their premises to George Floyd demonstrators for rest, use of Wi-Fi and bathrooms, and provision of water and snacks—with instructions to keep police out of the premises. See Exhibit S.
74. The special rules applied in these contexts, with the evident approval of defendants Cuomo and de Blasio, are: (1) Gathering limits and social distancing for thee, but not for me; and (2) Gathering limits and social distancing for thee, but not for we, who are engaged in a cause more important than worship services.
75. In sum, defendant Cuomo’s restrictions on “non-essential gatherings,” enforced by $1000 fines and other criminal penalties imposed by local law enforcement at defendants’ command, now stand exposed as a sham—dispensable for some but not others at defendants’ whim, rather than a neutral law of general application rationally related to public health and safety.
76. As the pandemic rapidly wanes, defendants’ “social distancing” dictatorship, put to a test of neutrality and general application, instantly revealed itself as an exercise in social control for its own sake, applied selectively according to defendants’ value judgments rather than “science” or “metrics.”
12/”AGAIN IN WILLIAMSBURG: Hasidic Children Kicked Out of Park Days After Tens of Thousands Attend Protest,” The Yeshiva World, June 8, 2020; see: https://www.theyeshivaworld.com/news/featured/1869301/again-in-williamsburg-hasidicchildren-kicked-out-of-park-days-after-tens-of-thousands-attend-protest.html
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THE INFRINGEMENT OF PLAINTIFFS’ CONSTITUTIONAL RIGHTS Plaintiffs Soos and Stamos
77. Plaintiff Rev. Steven Soos is a duly ordained Catholic priest, ordained in 1994, who offers Mass and provides the other Sacraments of the Catholic Church to congregations located Glens Falls, Massena and Nicholville, all located in this District.
78. Plaintiff Soos belongs to an international fraternity of Catholic priests with seminaries and Mass centers throughout the world that is not affiliated with any particular diocese.
79. Rev. Nicholas Stamos, a Catholic priest ordained in 2016, belongs to the same priestly fraternity and assists Father Soos in saying Mass at said locations, along with another priest.
80. The Holy Sacrifice of the Mass is the very heart of Catholic worship without which the Catholic faith would not exist.
81. In addition to offering Mass, both plaintiff Soos and plaintiff Stamos perform baptisms, preside at weddings, and offer funeral Masses for their flocks.
82. In Massena, where the chapel has a capacity of 350 persons, the Catholic congregation is generally 40 worshipers on a Sunday at the present time, including 18 nuns, but would expand to around 170 when students return to the Catholic school at that location.
83. In Glens Falls the congregation is about 80 in number in a chapel whose capacity is 80 persons.
84. In Nicholville, at Saint Therese Church, which is the main church to which plaintiffs Soos and Stamos minister, the Sunday congregation numbers approximately 260 worshipers, divided between two Sunday Masses in a church that has a capacity of 204.
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85. On June 6, in Executive Order 202.38, defendant Cuomo’s previous ten-person limit on worship gatherings, or else “drive-in” services, was “expanded” in the “Phase Two” region, where plaintiffs Soos and Stamos conduct their priestly ministry, to “allow” worship services at 25% of building capacity—a limitation not imposed on numerous businesses and entities under the challenged Orders.
86. This limitation continues severely and without justification to burden plaintiffs’ exercise of religion as follows:
87. Forbidding Catholics to be physically present for worship beyond an arbitrary, state-imposed strict numerical limit on the size of congregations, 75% below the normal occupancy of their churches or chapels, is a serious deprivation of their exercise of the Catholic religion and a grave interference in plaintiffs’ religious ministry and priestly mission to their flocks.
88. It is a Catholic teaching that one cannot receive Sacraments without being physically present for their administration. Sacraments cannot provide their graces by “remote” video link as defendant Cuomo also “allows” under his dictate in Order 202.32.
89. Under defendant Cuomo’s new “25% of capacity” decree in Order 202.38, plaintiffs would have to offer multiple Masses on the same day in Saint Therese Church at Nicholville, where the total congregation for both Sunday Masses numbers 260 and building capacity is 204.
90. For a High Mass, the Church norms provide for five altar servers to assist the priest, which would reduce the congregation at Saint Therese Church to around 45 members at each Mass, given the 25% of capacity limitation imposed by defendant Cuomo. This would
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require the offering of five Sunday Masses at Saint Therese Church in order to accommodate 260 worshipers.
91. For a Low Mass, Church norms provide for two altar servers to assist the priest, which would reduce the congregation at Saint Therese Church to around 47 at each Mass, given the 25% capacity limitation. This limitation would likewise require five Low Masses to accommodate 260 worshipers.
92. Sunday is a Holy Day of Obligation in the Catholic Church on which all Catholics are obliged under pain of mortal sin to attend Mass unless they are ill, or some other grave reason prevents attendance. But it is physically impossible for one priest to offer that many Masses on a Sunday or any other day. Moreover, Church law precludes offering more than two Masses on a given day (“bination”) except under extraordinary circumstances, when three Masses may be offered by the same priest on the same day.
93. Consequently, on Sunday, June 7, plaintiffs Soos and Stamos, dividing the Masses between them with another priest, were forced to offer five Masses at Saint Therese Church—6 a.m., 7 a.m., 9 a.m., 11 a.m. and 12:30—instead of the normal two Masses under normal occupancy in order to accommodate their total flock of around 260 persons.
94. At Glens Falls, where the chapel holds only 80 persons, this past Sunday, June 7, plaintiff Stamos was forced to offer three “drive-in” Masses rather than the four in-person Masses that would have been needed if the chapel were used under defendant Cuomo’s arbitrary 25% capacity rule.
95. At Massena, where the chapel holds 350, the 25% capacity rule will not permit a single daily Mass for 120-130 students when they return to school, which will severely disrupt
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the school’s schedule come September—assuming defendant Cuomo even permits plaintiffs’ Catholic school to reopen, failing which another First Amendment deprivation would arise.
96. Weddings in the churches over which plaintiffs Soos and Stamos preside would likewise be impacted by the 25% capacity rule, as plaintiffs would be forced to prohibit family members and friends from attending what are usually large gatherings for the Sacrament of Holy Matrimony.
97. The “drive-in” Masses that defendant Cuomo has allowed since May 21 also involve major and unjustified burdens on plaintiffs and their congregations, including the following:
a. Because they are forbidden by defendant Cuomo from leaving their cars during a “drive-in” Mass, congregants are unable to kneel during the Canon of the Mass for the Consecration of the elements of Holy Communion, bread and wine, which Catholics believe become the Body, Blood, Soul and Divinity of Christ at the moment of the Consecration such that kneeling in the divine Presence is commanded by their religion.
b. Many of the congregants who have attended the few drive-in Masses attempted at Nicholville and Glens Falls have to drive 1 to 2 hours each way. Some are elderly people who find it difficult to remain in their cars during a Mass that lasts an hour or longer after driving for an hour or more, followed by another drive of an hour or more to return home. Others arrive in vans or SUVs packed with large families who are required to be cooped up in their vehicles for the same amount of time
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c. In order to administer Holy Communion to the “drive-in” congregants while kneeling, as required by the rubrics of the Masses plaintiffs offer, plaintiffs must set up outdoor kneelers which the congregants, leaving their vehicles, must approach two at a time rather than keeling in a row at the Communion rail as they would inside the church. But even this is forbidden by Cuomo’s “drive-in” restrictions, which prohibit “in-person contact between participants” and thus prohibit reception of Holy Communion itself—the very essence of the Mass—except under threat of prosecution and fines.
d. The “drive-in” Masses on May 31 were held in 40-degree weather, with snow squalls and rain, to which the priest and the altar servers were exposed.
98. The aforesaid restrictions on Catholic worship under defendants’ social distancing regime impose extreme burdens on plaintiffs’ free exercise of religion in ministering to their flocks, which burdens are not imposed on the businesses, social activities (including beachgoing) and the mass demonstrations for George Floyd defendants have selectively permitted.
99. Furthermore, the original ten-person limit on outdoor gatherings, necessitating “drive-in” religious services for larger-than-ten gatherings outdoors, apparently remains in effect even in plaintiffs’ “Phase Two” region.
100. Thus, although in-person outdoor Masses in warm weather, with full congregations, would be feasible at Nicholville, which has six acres of open land in front of Saint Therese Church, defendant Cuomo’s ten-person limit on outdoor gatherings—not applicable to the George Floyd demonstrations—still makes that impossible at Nicholville.
101. The still-operative ten-person outdoor limit also burdens the practice of plaintiffs’ religion respecting outdoor burial services, where plaintiffs—in an unjustified compromise of
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their ministry to the grieving—would be forced to bar family members and friends from attending the graveside as their loved ones are laid to rest, while thousands of people march in the streets with defendants’ approval, and even participation in the case of defendant de Blasio.
102. While all of the aforesaid restrictions should be entirely stricken down as arbitrary and unconstitutional, as pleaded below, plaintiffs Soos and Stamos would be willing to minister to their congregations following the same “social distancing” requirements applied to the “Phase Two” businesses and entities now operating in the North Country and the same outdoor protocol applied to defendants’ favored political demonstrations, which are unlimited in size.
Plaintiffs Schonbrun, Perr and Mayerfeld 103. Plaintiffs Schonbrun, Perr and Mayerfeld are sincere practitioners of Orthodox Judaism who attend synagogues in Brooklyn, where they all reside. 104. The synagogue prayers required by their religion must have a minimum quorum of ten adult males (age thirteen or older), called the minyan, and several of the congregants, a few times a week, must gather closely around the Torah for a reading from the Torah. 105. Members of their congregations also gather to pray and study the Torah and the Talmud together, especially young men. 106. These religious activities require physical presence in the synagogue and cannot be conducted by video. 107. Limiting the size of synagogue congregations to ten persons or mandating that the congregants attend “drive-in” services in closed motor vehicles, as provided in Orders 202.32 and 202.33, when numerous secular gatherings and the mass demonstrations now occurring are exempted from any such restrictions, unduly burdens plaintiffs’ sincerely held religious beliefs and practices, as follows:
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108. If Jewish services are limited to the presence of a minyan of 10 adult men, then no one else can attend the services under the ten-person limit. Thus a young man could not attend his own Bar Mitzvah, which is usually held the week before the thirteenth birthday (meaning the boy would not count toward the minyan), or a bride-to-be her own wedding, or a newborn his own circumcision, nor could plaintiffs themselves attend such services unless they were part of the minyan.
109. Defendant Cuomo’s allowance of “drive-in” gatherings of more than ten persons also fails to accommodate plaintiffs’ religion as the minyan must all be present in the same room, not in various motor vehicles, so that a “drive-in” service would not be possible in Orthodox Jewish worship.
110. Moreover, any type of operation of a vehicle is prohibited on the Sabbath, which is the day the main weekly services take place.
111. While women attend services in plaintiffs’ synagogues, they are not counted towards the minimum quorum of ten adult males, just as a woman cannot act as a priest in the Catholic religion.
112. Thus, the challenged Orders forbid plaintiffs to participate in any congregation beyond the minyan if they are not part of the minyan but merely a congregant.
113. Defendant Cuomo’s ten-person limit on religious gatherings has devastated the spiritual life of plaintiffs’ respective synagogue communities as it is now impossible for families to attend services or even for men alone to do so beyond the strict minimum of ten.
114. The challenged Orders effectively render illegal any but miniscule Jewish congregations, either indoors or outdoors, yet Kosher grocery stores and bakeries in Brooklyn,
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and numerous other businesses, are allowed to operate without any state-imposed limit on the number of persons inside.
115. At the same time, defendants de Blasio and Cuomo not only allow but approve massive demonstrations of thousands of people in protest over the death of George Floyd, including demonstrations in the same Borough, Brooklyn, where religious gatherings of more than ten, either indoors or outdoors, are deemed illegal under the challenged Orders and where defendant de Blasio personally appeared in Williamsburg to be sure a Jewish funeral gathering was dispersed by the NYPD.
116. In addition, each plaintiff has been affected by the challenged Orders in particular ways, as pleaded below.
Plaintiff Daniel Schonbrun 117. Daniel Schonbrun has been a congregant of Chabad of Marine Park in Brooklyn since 2009. 118. By mid-March 2020, when most synagogues in Brooklyn had shut down, the Rabbi of Chabad of Marine Park, Rabbi Hendel, decided to remain open with social distancing. 119. Plaintiff Schonbrun’s congregation was thereafter harassed by a member of the Jewish community who holds himself out as a liaison with local authorities and an enforcer of “social distancing.” 120. On the first Sabbath after Rabbi Hendel decided to keep his synagogue open, this individual appeared and began yelling at the congregants to leave because they were supposedly putting the community in danger. 121. Plaintiff Schonbrun’s congregation thereafter moved its thrice-daily prayer services outdoors to the 5,000 square foot backyard of the synagogue. On April 4, before the full
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quorum for prayers could assemble, the same individual entered the backyard without permission and berated the eight congregants present, informing them that they were engaged in an “illegal gathering” and that they must disperse.
122. When the congregants failed to disperse, this individual called 911. A police officer arrived minutes later, entered the backyard and informed plaintiff Schonbrun and the other congregants present that they were an illegal gathering and must disperse, even though only eight people were present and were at least 20 feet apart from each other.
123. When the congregants declined to disperse, the officer went to each of them, one by one, and threatened them with fines and arrest, thereby intimidating five of the congregants to disperse, leaving only three, including plaintiff Schonbrun.
124. While plaintiff Schonbrun was remonstrating with the officer, four more police officers appeared in the synagogue’s backyard, including a Sergeant from the 61st Precinct. The officers continued to maintain that the gathering was “illegal” and refused to deal with the individual who had called them, who was trespassing. When plaintiff Schonbrun asked the police officers why they were allowing him to be on private property, the officers claimed that he works for the NYPD.
125. Plaintiff Schonbrun informed the officers that as of that date, April 4, no order by defendant Cuomo or defendant de Blasio actually prohibited religious gatherings as “nonessential.” The officers continued to insist that defendant de Blasio had made it illegal for “nonessential” religious groups to gather for worship and spent about ten minutes on their cell phones trying to find the law or rule they were invoking
126. By this time, only plaintiff Schonbrun and one other congregant were left, and they decided to leave as there was no minyan or any way to continue praying as police had
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totally disbanded the gathering. The police remained on the scene until they were certain plaintiff Schonbrun and the other remaining congregant had left.
127. Six days later, on April 10, defendant Cuomo published the aforesaid “Guidance Document,” stating that “all non-essential gatherings of individuals of any size for any reasons (e.g. worship services, parties, celebrations, or other social events) are canceled or postponed. Congregate services within houses of worship are prohibited.”
128. By this time plaintiff Schonbrun’s minyan had to change locations constantly because they were afraid that police officers would arrive at any time to demand that they disperse. Consequently, plaintiff Schonbrun and his fellow congregants missed many religious services, including during Passover, which began on April 8 and ended on April 16.
129. Because of the ten-person limit, plaintiff Schonbrun’s son, who is not old enough to be part of a minyan, has not been able to attend synagogue for months, which is one way in which defendant Cuomo’s executive orders have destroyed the spiritual life of families in the Jewish community.
130. Plaintiff Schonbrun now lives in constant fear of police intervention in what remains of Jewish worship under the ten-person limit, especially after defendant de Blasio’s warning on April 29 that “My message to the Jewish community, and all communities, is this simple: the time for warnings has passed. I have instructed the NYPD to proceed immediately to summons or even arrest those who gather in large groups….”
131. Plaintiff Schonbrun has frequently observed that during all the weeks he and his congregation have been harassed by the police for “illegal gatherings,” the “essential” stores were all open with lines around the block as throngs of people were trying to get in. There was
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no limit on numbers in these gathering and no “social distancing,” nor any police intervention to require adherence to the challenged orders by people who were gathered to shop.
132. Chabad of Marine Park has a total indoor capacity of about 70 people, including women and children in a separate room. With social distancing of six feet between congregants, the synagogue can hold about 30 people.
133. An outdoor service in the 5,000-square-foot backyard could accommodate some 200 people, or approximately 70 people with social distancing.
Plaintiff Elchanan Perr 134. Plaintiff Perr is a regular member of a Congregation in the Flatbush-Midwood section of Brooklyn. He has been a congregant there for the past three years. 135. At the very beginning of the “social distancing” regime reflected in defendant Cuomo’s orders, even before “congregate worship” was prohibited outright between April 10 and May 20, police were advising members of the Jewish community in Flatbush-Midwood that synagogues must close outright, and the police were actively seeking out rabbis to so inform them. 136. Because of the general synagogue closings, plaintiff Perr began to attend another synagogue, Congregation Zichron Aryeh Leib. 137. On many occasions from late March and throughout April, police cars would arrive to surveil and intimidate the few remaining congregants at Congregation Zichron Aryeh Leib, including plaintiff Perr, many other congregants having been scared away by the Governor’s orders and the constant police presence. 138. On these occasions the police would try to gain entry and would bang on the doors of the synagogue. A few times they did gain entry to “check” on the worship proceedings.
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On one such occasion, in March, plaintiff Perr confronted two officers in front of the synagogue who were trying to enter. They informed him that they had orders that all synagogues had to close, even though—as plaintiff told the officers—as of that date “congregate worship” had not been forbidden, which would not happen till around April 10, as pleaded above.
139. The result of this constant police presence and interference was a climate of fear that prevented the tranquility of worship among plaintiff and the remaining congregants, who were constantly apprehensive about police intrusions into their synagogue.
140. A self-styled “community activist” who claims to be coordinating with the City government, who periodically flashes a badge of some kind, has repeatedly summoned the police to houses of Jewish worship in the Flatbush-Midwood area to intimidate rabbis and congregants into suspending their worship and even closing their synagogues.
141. For example, on March 26, at Congregation Sasregen in the same neighborhood, plaintiff Perr was present for prayers in the early morning when the police, summoned by the aforesaid “community activist,” arrived and demanded that worship not proceed. A week later plaintiff observed that this synagogue had been locked and that there was a notice on the door from the Health Department that the synagogue had been closed and that no services could be conducted there. Exhibit T.
142. Also, on that date, the NYPD broke up a funeral gathering in honor of Rabbi Cohn, in front of his home, in which plaintiff Perr participated, with social distancing of those in the gathering. The street had been closed with permission from the police, who decided, however, that the gathering should end and proceeded to disperse the gathering by driving into its midst with their cars, in the middle of a eulogy, forcing everyone onto the sidewalks, where they could not socially distance.
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143. During the first week in April, plaintiff Perr was advised by a 311 operator that all synagogues in Flatbush-Midwood were to be closed.
144. On April 10, as plaintiff Perr and another congregant were locking up after a synagogue service during Passover at Congregation Zichron Aryeh Leib, four NYPD vehicles pulled up in front of the synagogue, apparently in response to a complaint. A group of officers exited these vehicles and two of them confronted plaintiff Perr and a fellow congregant, threatening them with arrest for “illegal” prayer services. Plaintiff was not arrested only because he was already leaving and did not wish to argue with a platoon of armed police officers.
145. The remaining congregants at Congregation Zichron Aryeh Leib devised a text messaging system to warn each other of impending police presence so they could scatter or wait until the police had left so that they could begin morning services without harassment. The windows of the synagogue were shuttered and the front window, made of plate glass, was covered in black paper so that the police could not determine whether anyone was inside.
146. On another occasion, in or about the second week of April, the Rabbi of Congregation Zichron Aryeh Leib told police, in plaintiff Perr’s presence, that he had closed the synagogue to congregations as such—“congregate worship” having just been banned by the Governor’s latest “guidance” on enforcement of his orders—but that individuals were arriving there solely as individuals, which was not “congregate worship” as such.
147. By this date, Executive Order 202.10, as explained by defendant Cuomo’s Guidance Document, had prohibited “Congregate services within houses of worship” as opposed individuals entering the synagogue under the ten-person limit but without worship as a “congregation.”
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148. Because of the ten-person gathering limit imposed by defendant Cuomo, plaintiff Perr was unable to have a Bar Mitzvah for his son that had been scheduled for May 2 at his original synagogue, which had also been closed due to the Governor’s orders and local police enforcement. Further, his wife and four daughters and two boys have been unable to attend services since the closure of local synagogues in March, given the still-prevailing ten-person limit.
149. The synagogues in Flatbush-Midwood, including plaintiff Perr’s original synagogue, are still laboring under defendant Cuomo’s ten-person limit for “gatherings.”
150. Plaintiff Perr and his fellow congregants are constantly aware of the potential for harassment and prosecution if the ten-person limit is exceeded. Consequently, attendance at services has plummeted from 100-120 persons to the ten men comprising the minyan, with any other man showing up being sent to the Women’s Balcony, where the women would sit before the Governor’s “lockdown.”
151. Throughout the COVID-19 outbreak, Congregation Zichron Aryeh Leib has observed “social distancing,” including more than six feet between the ten or so congregants and hand sanitizing. With social distancing, the synagogue could accommodate approximately 45 people. Its maximum capacity is around 140 people, including children, and women who pray in the upper level.
Plaintiff Mayer Mayerfeld 152. There are four synagogues within a two-block distance of plaintiff Mayerfeld’s home, and he would attend all of them on a daily basis at various times of the week and the Sabbath depending on the times of the services and how they fit into his schedule.
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153. The two main ones he attended were Shaarei Zion and Congregation Bnai Torah. There are at least dozen other Synagogues within a 10-block radius of his home, but were all shut about the same time due to the COVID-19 crisis—around the Sabbath of March 14th.
154. After about two weeks of attending a Sephardic synagogue that closed due to fears of being padlocked by the NYC Sheriff, plaintiff Mayerfeld began attending Congregation Zichron Aryeh Leib, where he and the congregants were subjected to intimidation by the NYPD at the behest of the Mayor and the Governor.
155. As alleged above, this synagogue, also attended by plaintiff Perr, has been repeatedly harassed by a police presence, with officers surveilling the synagogue, sometimes entering the synagogue, and other times attempting to gain entry.
156. On Tuesday, April 7, while plaintiff Mayerfeld was waiting outside for someone to come and unlock the door at Congregation Zichron Aryeh Leib, an NYPD patrol car parked in front of the synagogue and a second patrol car appeared to be circling the block. Two officers got out of the car and tried gaining access to the synagogue from the front and side doors. One of them engaged plaintiff Mayerfeld in conversation in order to ascertain if anyone was inside.
157. Plaintiff Mayerfeld objected that he did not appreciate the NYPD harassing people engaging in their constitutionally protected religious freedom and trying to intimidate people from going to Synagogue. He told this officer there is still a constitution in this country. The officer responded: “We’re just trying to make sure people are ‘safe.’”
158. In order to be sure of having Saturday services on the Sabbath, the principal day of Orthodox Jewish worship, plaintiff Mayerfeld also arranged for a minyan of ten persons in his backyard in the hope of avoiding police harassment. With his four four boys included, plaintiff
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Mayerfield had half a minyan and with the help of several other people was able to have Sabbath services in a socially distant manner in his yard.
159. On several occasions, however, neighbors came and attempted to disrupt the yard services or screamed nasty comments at plaintiff Mayerfeld for holding the minyan in his backyard, which is enclosed by hedges.
160. This social ostracizing and bullying is being incited by defendant de Blasio, who vowed to crack down on the Jewish community for failing to observe Cuomo’s ban on religious gatherings, as alleged above. Community activists and non-profits are assisting in this effort at intimidation, while defendants De Blasio and Cuomo actively encouraged New Yorkers to turn their neighbors in during their daily press meetings and were actively denigrating anyone who did not follow their rules as being selfish and spreading disease, despite the fact there is no scientific evidence that attending a prayer service is any more hazardous than attending donut shops or bagel stores, all of which have remained open.
161. Plaintiff Mayerfeld ended the Sabbath services in his backyard at the end of May, when his neighborhood synagogue, Congregation Shaarei Tzion, reopened.
162. Worship at Congregation Shaarei Tzion is still severely hampered by the tenperson limit. Although the capacity of the synagogue is approximately 80, including the Women’s Balcony, under the ten-person limit only ten men are allowed in the main sanctuary and if a few others show up, they are sent to the Women’s Balcony. As a result, Plaintiff Mayerfeld’s wife and daughter are not able to attend the services. This is the case in all the Orthodox synagogues that have reopened, to plaintiff Mayerfeld’s knowledge.
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163. Since worship is thus still limited to the minyan, worship by family members and other congregants beyond the minyan remains impossible without violating the challenged Orders.
COUNT I Violation of the First and Fourteenth Amendments to the U.S. Constitution
(Free Exercise of Religion) 42 U.S.C. § 1983
164. Plaintiffs re-allege and incorporate by reference the factual allegations in ¶¶ 1163.
165. Plaintiffs’ sincerely held religious beliefs compel them to preside over or participate in religious gatherings in keeping with the teachings and requirements of their respective religions.
166. The Free Exercise Clause of the First Amendment to the U.S. Constitution protects plaintiffs’ religious activities.
167. The challenged limits on gatherings under defendant Cuomo’s executive orders, SDP and NYFP (hereafter “the challenged regulations”), substantially burden plaintiffs’ free exercise of religion by forbidding them to preside over or participate in any religious gathering in their respective houses of worship or elsewhere in the State of New York, save under arbitrarily oppressive conditions that strictly limit the size of their congregations.
168. The challenged regulations are impermissibly underinclusive because they are riddled with exceptions while purporting to be facially neutral, fail to prohibit secular activity that endangers the purported state interest in “public health” equally or to a greater degree than the prohibited religious conduct, and burden religious conduct while not affecting substantial categories of conduct that are not religiously motivated.
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169. The challenged regulations are therefore not a neutral policy or law of general applicability and cannot be sustained unless narrowly tailored to serve a compelling state interest of the highest order.
170. The challenged regulations are not rationally related to a compelling state interest, nor are they the least restrictive means of accomplishing the purported compelling state interest of reducing the rate of community spread of COVID-19.
171. The undefined term “non-essential gatherings” has no rational relation to the goal of “social distancing,” which can be accomplished even more readily in a church setting, where people can sit apart in the pews than in the mass demonstrations defendants condone or in retail or office environments rife with direct interpersonal contacts and contact with common surfaces touched by innumerable other people.
172. The challenged regulations irrationally undermine the purported state interest by favoring numerous forms of secular activity that pose a greater risk of viral transmission than the prohibited religious gatherings.
173. Defendants have less restrictive means of achieving any legitimate interest served by the challenged regulations, those being the same conditions on which they allow retail and non-retail businesses to operate: i.e., “social distancing” and sanitization.
174. As the pleaded facts demonstrate, the challenged regulations irrationally, invidiously, and without any legitimate, much less compelling, state purpose discriminate against religious activities in favor of secular and commercial activities, including mass demonstrations that violate the same regulations.
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175. Both facially and as applied to plaintiffs, the challenged regulations violate the Free Exercise Clause of the First Amendment as made applicable to the States by the Fourteenth Amendment.
176. In the absence of declaratory and injunctive relief, plaintiffs will be irreparably harmed.
177. Plaintiffs have no adequate remedy at law for the violation of their constitutional rights.
COUNT II Violation of the First and Fourteenth Amendments to the U.S. Constitution
(Violation of Freedom of Speech, Assembly and Expressive Association) 42 U.S.C. § 1983
178. Plaintiffs re-allege and incorporate by reference the allegations in ¶¶ 1-163. 179. The First Amendment protects plaintiffs’ right to peaceably assemble together with the members of their congregations. 180. Plaintiffs’ religious assemblies are intertwined with speech and expressive association, meaning the right to associate with others of like mind for a protected purpose. 181. Because the undefined term “non-essential gatherings” employed in the challenged regulations has no rational relationship to the goal of “limiting the spread” of COVID-19 by “social distancing,” which can be practiced more easily, or no less easily, in a church or synagogue than in the retail and office environments and mass demonstrations the defendants favor, the challenged regulations operate solely to discriminate arbitrarily against groups of people based on their social, political or religious purposes rather than any alleged lack of “social distancing.”
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182. Defendants have less restrictive means of regulating gatherings for the stated purpose of “reducing the rate of community spread of COVID-19.”
183. The challenged regulations do not serve any compelling or even significant government interest and are not narrowly tailored to achieve any legitimate state purpose.
184. The challenged regulations impermissibly infringe freedom of speech, assembly and expressive association without serving any compelling or even significant government interest.
185. In the absence of declaratory and injunctive relief, plaintiffs will be irreparably harmed.
186. Plaintiffs have no adequate remedy at law for the violation of their constitutional rights.
COUNT III Violation of the Fourteenth Amendment (Equal Protection – Substantive Due Process)
42 U.S.C. § 1983 187. Plaintiffs re-allege and incorporate by reference the allegations contained in ¶¶ 1184. 188. The Equal Protection Clause of the Fourteenth Amendment to the United States Constitution guarantees equal protection of the laws, which requires that the State not treat the “suspect class” of religion differently from the class of similarly situated people or pass laws that burden First Amendment rights. 189. The challenged regulations treat the class or subclass of people who exercise freedom of religion by gathering with others for that purpose, including plaintiffs, differently
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from the similarly situated class of people who gather with others for secular purposes, including the mass demonstrations defendants have exempted from their regulatory regime.
190. Moreover, the class of those who gather for religious purposes in churches, chapels and synagogues is plainly less subject to the risk of infection or transmission than those engaged in mass demonstrations, commercial transactions involving crowded offices, large crowds every day of the week, physical exchanges, and common surfaces touched by potentially millions of people, which makes the suspect classification targeted by the challenged regulations even more irrational and invidious.
191. The challenged regulations cannot survive the strict scrutiny required of suspect classifications under the substantive due process component of the Equal Protection Clause as they are far from neutral and generally applicable and are not narrowly tailored to serve a compelling state interest.
192. The challenged regulations, both facially and as applied, also violate plaintiffs’ fundamental rights to freedom of speech, assembly and expressive association as alleged above.
193. Even if the challenged regulations did not involve a suspect classification or violate fundamental rights, their severe restriction of religious gatherings, while permitting numerous secular and commercial gatherings unrestricted as to size, including the mass demonstrations of which defendants approve, is not even rationally related to a legitimate state interest and thus cannot survive even rational basis analysis under the Equal Protection Clause.
194. Alternatively, the challenged regulations cannot survive heightened scrutiny under the “hybrid-rights” theory the United States Supreme Court has recognized for purposes of Equal Protection analysis when, as here, multiple rights are violated by a purportedly neutral law.
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195. The challenged regulations thus violate the Equal Protection Clause of the
Fourteenth Amendment to the United States Constitution, including its substantive component.
196. In the absence of declaratory and injunctive relief, plaintiffs will be irreparably
harmed.
197. Plaintiffs have no adequate remedy at law for the violation of their constitutional
rights.
COUNT IV
Ultra Vires State Action in Violation of Federal Rights
198. Plaintiffs re-allege and incorporate by reference the allegations contained in ¶¶ 1-
195.
199. Defendant Cuomo relies on New York State Executive Law § 29-a as the basis for
the challenged regulations. Said statute provides in pertinent part as follows:
1. Subject to the state constitution, the federal constitution and federal statutes and regulations, the governor may by executive order temporarily suspend specific provisions of any statute, local law, ordinance, or orders, rules or regulations, or parts thereof, of any agency during a state disaster emergency, if compliance with such provisions would prevent, hinder, or delay action necessary to cope with the disaster.
2. Suspensions pursuant to subdivision one of this section shall be subject to the following standards and limits:
a. no suspension shall be made for a period in excess of thirty days, provided, however, that upon reconsideration of all of the relevant facts and circumstances, the governor may extend the suspension for additional periods not to exceed thirty days each;
b. no suspension shall be made which does not safeguard the health and welfare of the public and which is not reasonably necessary to the disaster effort;
c. any such suspension order shall specify the statute, local law, ordinance, order, rule or regulation or part thereof to be suspended and the terms and conditions of the suspension;
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d. the order may provide for such suspension only under particular circumstances, and may provide for the alteration or modification of the requirements of such statute, local law, ordinance, order, rule or regulation suspended, and may include other terms and conditions; e. any such suspension order shall provide for the minimum deviation from the requirements of the statute, local law, ordinance, order, rule or regulation suspended consistent with the disaster action deemed necessary… (emphasis added). 200. Executive Law § 29-a provides no authority for the plethora of detailed positive edicts Cuomo has promulgated by executive fiat, regulating virtually every aspect of the lives of some 8 million people in the State of New York, including plaintiffs’ exercise of First Amendment rights as pleaded above. 201. Rather, Executive Law § 29-a expressly limits its scope according “to the state constitution, the federal constitution and federal statutes and regulations…” Id. 202. The challenged regulations are ultra vires the statute on which defendant Cuomo relies in that Cuomo has legislated rather than confining himself to the limited process of temporarily suspending certain laws, orders, rules or regulations by executive order. 203. The New York State Constitution provides for a complete separation of powers among the three “co-ordinate and co[-]equal branches” of government: the executive, the legislative, and the judicial. N.Y. Const., art. III, sec. 1; art. IV, sec. 1; and art. VI. 204. Article III, Section 1 of the New York State Constitution provides: “The legislative power of this state shall be vested in the senate and assembly.” N.Y. Const., art. III, sec. 1. 205. Nowhere in the New York State Constitution is the Chief Executive, defendant Cuomo, given or delegated any legislative authority. Rather, “The [G]overnor shall have power to convene the legislature, or the senate only, on extraordinary occasions. At extraordinary
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sessions convened pursuant to the provisions of this section no subject shall be acted upon,
except such as the [G]overnor may recommend for consideration.” N.Y. Const., art. IV, sec. 3.
206. The Governor’s exercise of emergency power during the COVID-19 outbreak
required that defendant Cuomo convene the legislature on an extraordinary basis in order to take
whatever legislative measures were deemed reasonably necessary according to the separation of
powers. Defendant Cuomo has never convened the legislature.
207. As another challenger of Cuomo’s reign by executive fiat in this District has
alleged (HoganWillig v. James, et al. Case 1:20-cv-00577), which allegations plaintiffs hereby
adopt and adapt to this pleading:
a. [T]he COVID-19 challenge is similar to what the public has faced many times before. New Yorkers have weathered floods and braved hurricanes; outlasted droughts and survived economic depressions; and, yes, they have persisted in the face of diseases more contagious and detrimental to the public welfare than the one we countenance today.
b. Once Defendant Cuomo was convinced that his unilateral, unprecedented actions were necessary, a convenient presumption arose that the danger the public faced, too, was unprecedented. Had the public gone about its business as usual, there is not a single reason to believe that there would be a need for commercial lockdowns or home isolation orders.
c. In short, Defendant Cuomo has been unconstitutionally legislating from the very exigency he created. It is a self-fulfilling prophecy of the most dangerous sort.
d. As Defendant Cuomo sees it, the proof of the severity of the COVID-19 pandemic is that we have been compelled to “shelter in place” and don medical masks at all hours of the day. And, Defendant Cuomo would permit us to shed these restrictions only by showing that the COVID-19 pandemic has subsided.
e. In the United States, the burden is always on the government to justify its actions, not on the citizenry to wait out its deprivations; this is the ingenious method we have devised to ensure that our laws are cloaked with good faith and founded in rational purpose.
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208. Defendant Cuomo’s ultra vires acts, as enforced by him and defendants James and de Blasio, should be declared void and unenforceable, as they constitute state action in violation of all the constitutional rights the challenged regulations infringe, as pleaded above.
209. In the absence of declaratory and injunctive relief voiding and enjoining defendants’ ultra vires acts, plaintiffs will be irreparably harmed.
210. Plaintiffs have no adequate remedy at law for the violation of their constitutional rights.
PRAYER FOR RELIEF WHEREFORE, plaintiffs respectfully pray that this Court grant the following relief: A. A temporary restraining order, followed by a preliminary and final injunction restraining defendants, and all those acting in concert with them, from enforcing any gathering limits on plaintiffs’ religious gatherings, including the ten-person limit on “non-essential gatherings,” the “drive-in” requirement for larger “nonessential gatherings,” and the limitation of occupancy of houses of worship to 25% of building capacity; B. In the alternative, compelling defendants to apply to plaintiffs’ religious gatherings no greater limits than they have placed on essential retail businesses and the mass demonstrations approved by defendants Cuomo and de Blasio; C. A declaratory judgment that (1) the challenged regulations, including the tenperson limit on “gatherings,” the “drive-in” requirement for larger “gatherings,” and the limitation of occupancy of house of worship to 25% of building capacity are unconstitutional, both individually and taken together, both facially and as applied to plaintiffs; and (2) that defendant Cuomo’s gathering limits imposed by
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executive order are ultra vires his authority under Executive Law § 29-a, void and unconstitutional both facially and as applied to plaintiffs. D. An award of costs of this litigation, including reasonable attorneys’ fees, pursuant to 42 U.S.C. § 1988. E. Such other and further relief as this Court deems just and proper. Dated: June 10, 2020
Respectfully submitted,
________________________________ CHRISTOPHER A. FERRARA, ESQ. (Bar No. 51198) 148-29 Cross Island Parkway Whitestone, Queens, New York 11357 Telephone: (718) 357-1040 cferrara@thomasmoresociety.org Special Counsel to the Thomas More Society Counsel for Plaintiffs
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 Case 1:20-cv-00651-GLS-DJS Document 2 Filed 06/10/20 Page 1 of 5

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF NEW YORK

REV. STEVEN SOOS,

)

)

REV. NICHOLAS STAMOS,

)

)

DANIEL SCHONBRUN,

)

)

ELCHANAN PERR and

)

)

MAYER MAYERFELD

)

)

Plaintiffs,

)

v.

)

)

ANDREW M. CUOMO, Governor of the )

State of New York, in his official capacity, )

)

LETITIA JAMES, Attorney General of the )

State of New York in her official capacity, )

and

)

)

BILL DE BLASIO, Mayor of the City )

of New York, in his official capacity,

)

)

Defendants.

)

Case No. 1:20-CV-0651 (GLS/DJS)

PLAINTIFFS’ MOTION FOR TEMPORARY A RESTRAINING ORDER (WITH NOTICE) AND A PRELIMINARY INJUNCTION

Come now Plaintiffs, and for all of the reasons stated in the supporting papers, respectfully

request that this Court enter a temporary restraining order (with notice) and preliminary injunction

pursuant to Fed. R. Civ. P. 65 against Defendants Governor Andrew M. Cuomo, Attorney General

Letitia James, and New York City Mayor Bill de Blasio, preventing them from enforcing

executive orders and plans that bar Plaintiffs from holding or attending indoor and outdoor

religious services in a manner consistent with their sincerely held religious beliefs. The grounds

for the emergente relief sought are summarized as follows:

Case 1:20-cv-00651-GLS-DJS Document 2 Filed 06/10/20 Page 2 of 5
1. Plaintiffs Rev. Steven Soos and Rev. Nicholas Stamos are Catholic priests in the North Country, New York. These plaintiffs have been consistently forbidden from holding or attending “congregate” worship services beyond an ever-changing maximum number of people, beginning with zero. Governor Cuomo’s latest relevant Executive Order, 202.38 issued on June 6, 2020, prevents Plaintiffs Soos and Stamos in the North Country from having Masses beyond 25% percent of their churches’ occupancy capacity, or with more than 10 people at any outdoor Mass.
2. Plaintiffs Daniel Schonbrun, Elchanan Perr, and Mayer Mayerfield are Orthodox Jewish congregants who reside in Brooklyn, New York. These plaintiffs remain subject to a 10person limit applicable to Jewish worship services indoors or outdoors in New York City. This limit effectively criminalizes any Jewish congregation beyond the ten-person quorum of adult males (minyan) required for the conduct of Orthodox Jewish prayer services and also prevents their female and non-adult male family members from attending synagogue services.
3. All of the Plaintiffs have endured restrictions on in their in-person worship services for more than 90 days under the notion that religious gatherings are “non-essential” in the state’s effort to slow the spread of COVID-19. But, as shown in the accompanying memorandum of law, the infection rate of COVID-19 in New York has dramatically slowed since March.
4. And, in the past two weeks, Defendants have approved and exempted mass gatherings across New York demonstrating against the tragic death of George Floyd in Minnesota. These protests began more than 10 days ago and have involved thousands of people with little or no “social distancing” between protestors, and yet there is no evidence of any resulting outbreak of COVID-19. Plaintiffs, however, are willing to maintain social distancing and hygiene practices in their indoor and outdoor worship services, and their religious gatherings are far less crowded.
5. After months of silent obedience, and in view of defendants’ selectively granted
2

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permission, days ago, for mass demonstrations that violate the rules to which Plaintiffs have been subjected, there is no longer any reason based on “public health” to delay seeking to attend religious gatherings on at least equal terms with other “essential” gatherings like mass protests, especially as the next Sabbath and Sunday holy day rapidly approach this weekend.
6. Otherwise, the unconstitutional restrictions on Plaintiffs’ religious services will be indefinite. The Governor’s current reopening plan does not authorize full house-of-worship reopenings until “Phase Four,” which has no definite beginning date and is far beyond Phases One and Two presently applicable to Plaintiffs.
7. But Defendants’ recent exemption for mass protests exposes the ongoing house-ofworship restrictions as arbitrary, irrational, and unjustifiably unequal. Defendants have made a value judgment favoring mass protests against racism without granting equal recognition to religious gatherings. This glaring hypocrisy—so contrary to our fundamental law—simply cannot stand.
8. As shown in the Verified Complaint, Exhibits and Memorandum of Law, the Defendants’ Orders interfere with Plaintiffs’ free exercise of religion, freedom of speech, right of assembly, right of expressive association, and equal protection of the law.
9. The Orders are also ultra vires defendant Cuomo’s limited authority under N.Y. Executive Law 29-a to declare a state of emergency and suspend the operation of laws, rules and regulations temporarily, but only, as that statute provides, “Subject to the state constitution, the federal constitution and federal statutes and regulations…” New York State Executive Law § 29a, sec. 1. Cuomo had no authority to promulgate the subject detailed regulations of every aspect of the lives of more than 8 million New Yorkers, which constitute legislation by one man rather than the State Legislature.
3

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10. Plaintiffs will suffer irreparable harm in the absence of a temporary restraining order and preliminary injunction, the balance of hardships tips strongly in their favor, and protecting their constitutional rights is in the public interest. An injunction would also preserve the status quo ante.
11. In support of this motion, Plaintiffs rely on the accompanying Memorandum of Law, the Verified Complaint, Exhibits to the Verified Complaint, and declaration of Plaintiffs’ medical expert, Dr. George Delgado, and counsel’s declaration concerning notice given.
WHEREFORE, Plaintiffs request: (a) that a temporary restraining order (with notice) be issued by this Court in time for Sabbath
services on Friday, June 12 (at sundown) and Sunday Masses on June 14, temporarily restraining Defendants, their agents, employees, and those acting in concert with them from enforcing the Governor’s Orders in a manner infringing on Plaintiffs’ religious services; (b) in the alternative, a preliminary injunction hearing on an expedited basis;
(c) such other relief as this Court deems just and proper.
Plaintiffs request that a bond be waived or that only a nominal bond be required. Plaintiffs request oral argument to the extent the Court deems it useful and, under the circumstances, feasible.

Dated: June 10, 2020

Respectfully submitted,

________________________________ CHRISTOPHER A. FERRARA, ESQ. (Bar No. 51198) 148-29 Cross Island Parkway Whitestone, Queens, New York 11357 Telephone: (718) 357-1040 cferrara@thomasmoresociety.org Special Counsel to the Thomas More Society Counsel for Plaintiffs
4

Case 1:20-cv-00651-GLS-DJS Document 2 Filed 06/10/20 Page 5 of 5 /s/ Michael G. McHale Michael G. McHale* Counsel – Thomas More Society 10506 Burt Cir. Ste. 110 Omaha, NE 68114 402-501-8586 mmchale@thomasmoresociety.org * Pro Hac Vice Application Pending Counsel for Plaintiffs
5

 Case 1:20-cv-00651-GLS-DJS Document 7 Filed 06/11/20 Page 1 of 3

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF NEW YORK

REV. STEVEN SOOS,

)

)

REV. NICHOLAS STAMOS,

)

)

DANIEL SCHONBRUN,

)

)

ELCHANAN PERR and

)

)

MAYER MAYERFELD

)

)

Plaintiffs,

)

v.

)

)

ANDREW M. CUOMO, Governor of the )

State of New York, in his official capacity, )

)

LETITIA JAMES, Attorney General of the )

State of New York in her official capacity, )

and

)

)

BILL DE BLASIO, Mayor of the City )

of New York, in his official capacity,

)

)

Defendants.

)

Case No. 1:20-cv-0651 ORDER TO SHOW CAUSE

Sharpe, United States Senior District Judge: THIS MATTER coming upon the Court upon the Motion of Plaintiffs for a Temporary Restraining Order (“TRO”) and Order to Show Cause why a TRO and Preliminary Injunction (“PI”) should not issue; and THE COURT NOTING that Plaintiffs, which include two Catholic priests in northern New York and three Jewish individuals in New York City, allege that Defendants, New York state and local officials, are violating several constitutional and state-law rights by implementing and enforcing several Executive Orders pertaining to the COVID-19 pandemic. Plaintiffs specifically allege that the Executive Orders’ prohibition on religious gatherings over a certain size violates

Case 1:20-cv-00651-GLS-DJS Document 7 Filed 06/11/20 Page 2 of 3
the First and Fourteenth Amendment of the U.S. Constitution and state-law restrictions on the separation of powers and the Governor’s use of emergency powers;
THE COURT NOTING that Plaintiffs have requested that Defendants be temporarily restrained and preliminary and permanently enjoined from enforcing any gathering limits on Plaintiffs’ religious gatherings, or, in the alternative, from enforcing any gathering limits on Plaintiffs’ religious gatherings greater than Defendants have imposed on essential retail businesses and the mass demonstrations approved by Defendants Governor Andrew Cuomo and New York City Mayor Bill de Blasio;
THE COURT NOTING that Plaintiffs seek the aforementioned relief effective for the upcoming Sabbath at sundown June 12, 2020, and for Masses on June 14, 2020;
THE COURT FINDING that Plaintiffs have provided sufficient reasons why the Court should employ an expedited procedure under Local Rule 7.1(e) given the immediacy of Plaintiffs’ application.
IT IS HEREBY ORDERED that Plaintiffs’ application is granted such that the Court will employ an expedited procedure to hear this matter.
IT IS FURTHER ORDERED THAT: 1. Defendants show cause why a temporary restraining order and preliminary injunction
should not be issued under Federal Rule of Civil Procedure 65 granting Plaintiffs the following relief: Restraining Defendants from enforcing any gathering limits on Plaintiffs’ religious gatherings, or, in the alternative, from enforcing any gathering limits on Plaintiffs’ religious gatherings greater than Defendants have imposed on essential retail businesses and the mass demonstrations approved by Defendants Cuomo and de Blasio.

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2. Defendants must submit a brief on this issue of no more than 25 pages on or before _____________________.
3. The Court shall hold a temporary restraining order and preliminary injunction hearing at ____________________________. The hearing shall be held via Zoom videoconference. The Court shall provide the necessary link to counsel via email prior to hearing.
4. If either party wishes to introduce testimony at the hearing, it must provide reasonable advance notice to the Court and the other party prior to the June 12, 2020 hearing.
5. Plaintiff must serve a copy of this Order and the papers on which it is based on Defendants on or before ______________________________.

Dated: 06/11/2020

Gary L Sharpe. United States Senior District Judge

 Case 1:20-cv-00651-GLS-DJS Document 18 Filed 06/15/20 Page 1 of 34

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK
REV. STEVEN SOOS, REV. NICHOLAS STAMOS, DANIEL SCHONBRUN, ELCHANAN PERR and MAYER MAYFELD,
Plaintiffs,
-against-
ANDREW M. CUOMO, Governor of the State of New York, in his official capacity, LETITIA JAMES, Attorney General of the State of New York in her official capacity, and BILL DE BLASIO, Mayor of the City of New York, in his official capacity,
Defendants.

20-CV-00651 (GTS)(DJS)

STATE DEFENDANTS’ MEMORANDUM OF LAW IN OPPOSITION TO PLAINTIFFS’ APPLICATION FOR TEMPORARY PRELIMINARY INJUNCTIVE
RELIEF

LETITIA JAMES Attorney General of the State of New York Attorney for Defendants Andrew M. Cuomo
and Letitia James The Capitol Albany, New York 12224

Adrienne J. Kerwin Assistant Attorney General Bar Roll No. 105154 Telephone: (518) 776-2608 Fax: (518) 915-7738 (Not for service of papers)

Date: June 15, 2020

Case 1:20-cv-00651-GLS-DJS Document 18 Filed 06/15/20 Page 2 of 34
Table of Contents
TABLE OF AUTHORITES .......................................................................................................... iii PRELIMINARY STATEMENT .................................................................................................... 1 PROCEDURAL HISTORY………………………………………………………………………2
EXECUTIVE ORDERS LIMITING GATHERINGS AND REQUIRING PHYSICAL DISTANCING…………………………………………………………………………………….2
FACTS AS ALLEGED BY THE PLAINTIFFS………………………………………………….6
ARGUMENT……………………………………………………………………………………...8
POINT I…………………………………………………………………………...8
PLAINTIFFS FAIL TO ESTABLISH THAT THEY ARE LIKELY TO SUCCEED ON THE MERITS OF THEIR CLAIMS…………………………………8
A. FREE EXERCISE…………………………………………….10
B. FREE SPEECH, EXPRESSIVE ASSOCIATION AND ASSEMBLY……………………………………………14
C. EQUAL PROTECTION……………………………………...17
D. LACK OF STATE AUTHORITY……………………………19
POINT II…………………………………………………………………………23
PLAINTIFFS FAIL TO ESTABLISH THAT THEY WILL SUFFER IRREPARABLE HARM IF A TEMPORARY RESTRAINING ORDER IS NOT GRANTED DURING THE PENDENCY OF THEIR MOTION FOR A PRELIMINARY INJUNCTION……………………..23
POINT III………………………………………………………………………...25
THE EQUITIES BALANCE IN FAVOR OF THE STATE’S EFFORTS TO PROTECT THE PUBLIC HEALTH DURING THE EXISTING PANDEMIC, AND ISSUANCE OF A TRO IS NOT IN THE PUBLIC INTEREST…………………………………………………….25
i

Case 1:20-cv-00651-GLS-DJS Document 18 Filed 06/15/20 Page 3 of 34 CONCLUSION…………………………………………………………………………………..25
ii

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TABLE OF AUTHORITIES

CASES

PAGE(S)

Amato v. Elicker, 2020 U.S. Dist. LEXIS 87758 (D. Conn. May 19, 2020) ................................................ passim

Bloomingburg Jewish Educ. Ctr. v. Village of Bloomingburg, 111 F.Supp.3d 459 (S.D.N.Y. 2015)........................................................................................11

Bourquin v Cuomo, 85 N.Y.2d 781 (1995) ..............................................................................................................22

Boy Scouts of America v. Dale, 530 U.S. (2000)........................................................................................................................15

Bronx Household of Faith v. Bd. of Educ., 331 F.3d 342 (2d Cir.2003)......................................................................................................23

Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520 (1993).................................................................................................................11

City of Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985).................................................................................................................18

Clark v Cuomo, 66 N.Y.2d 185 (1985) ..............................................................................................................22

Compagnie Francaise De Navigation A Vapeur v. La. State Bd. of Health, 186 U.S. 380 (1902).................................................................................................................19

CompassCare v. Cuomo, 2020 U.S. Dist. LEXIS 98930 (N.D.N.Y. June 5, 2020) .........................................................23

Congregation of Rabbinical College of Tartikov, Inc. v. Vill. of Pomona, 915 F.Supp.2d 574 (S.D.N.Y. 2013)........................................................................................10

District of Columbia v. Brooke, 214 U.S. 138 (1909).................................................................................................................20

Elrod v. Burns, 427 U.S. 347, 373 (1976).........................................................................................................23

Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U.S. 872 (1990).................................................................................................................11

Fairfield Cty. Med. Ass’n v. United Healthcare of New England, 985 F. Supp. 2d 262 (D. Conn. 2013) ........................................................................................8

iii

Case 1:20-cv-00651-GLS-DJS Document 18 Filed 06/15/20 Page 5 of 34
Fighting Finest v. Bratton, 95 F.3d 224 (2d Cir. 1996).......................................................................................................15
Fortress Bible Church v. Feiner, 694 F.3d 208 (2d Cir 2012)......................................................................................................14
Friends of Devito v. Wolf, 2020 Pa. LEXIS 1987 (PA Sup. Ct., Apr. 13, 2020) .........................................................19, 20
Geller v. De Blasio, 2020 U.S. Dist. LEXIS 87405 (S.D.N.Y. May 18, 2020) .........................................................8
Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1 (1824).....................................................................................................19
In re Abbott, 954 F.3d 772 (5th Cir. 2020) ...................................................................................................20
Jacobson v. Massachusetts, 197 U.S. 11 (1905).......................................................................................................16, 17, 19
Jacoby & Meyers, LLP v. Presiding Justices of the First, Second, Third & Fourth Dep’ts, 852 F.3d 178 (2d Cir. 2017).....................................................................................................15
Lawton v. Steele, 152 U.S. 133 (1894).................................................................................................................20
Lee v. Trump, 2020 U.S. Dist. LEXIS 49860 (S.D.N.Y. March 23, 2020) ......................................................8
Legacy Church, Inc. v. Kunkel, 2020 U.S. Dist. LEXIS 68415 (D.N.M. Apr. 17, 2020) ....................................................19, 20
Lyng v. Intl. Union, 485 U.S. 360 (1988).................................................................................................................15
Matter of New York State Health Facilities Assn. v Axelrod, 77 N.Y.2d 340 (1991) ..............................................................................................................22
Morgan S.S. Co. v. La. Bd. of Health, 118 U.S. 455 (1886).................................................................................................................19
New York State Club Assoc. v. Citv of New York, 487 US 1 (1988).......................................................................................................................18
Papineau v. Parmley, 465 F.3d 46 (2d Cir. 2006).......................................................................................................16
iv

Case 1:20-cv-00651-GLS-DJS Document 18 Filed 06/15/20 Page 6 of 34
Pennhurst State Sch. v. Halderman, 465 U.S. 89 (1984)...................................................................................................................19
Phillips v. City of New York, 775 F.3d 538 (2d Cir. 2015)...............................................................................................10, 17
Prince v. Massachusetts, 321 U.S. 158 (1944)...........................................................................................................17, 19
Roberts v. United States Jaycees, 468 U.S. 609 (1984).................................................................................................................15
Rossi v. Fischer, 2014 U.S. Dist. LEXIS 158064 (S.D.N.Y. Sept. 11, 2014).....................................................23
Rumsfeld v. Forum for Academic and Institutional Rights, Inc., 547 U.S. 47 (2006)...................................................................................................................14
Saratoga County Chamber of Commerce v. Pataki, 100 N.Y.2d 801 (2003) ............................................................................................................22
Sessions v. Morales-Santana, 137 S.Ct. 1678, 198 L. Ed. 2d 150 (2017) ...............................................................................13
Smith v. Avino, 91 F.3d 105 (11th Cir. 1996) ...................................................................................................20
South Bay United Pentecostal Church v. Newsom, 2020 U.S. LEXIS 3041 (May 29, 2020) .......................................................................... passim
Tabbaa v. Chertoff, 509 F.3d 89 (2d Cir. 2007).......................................................................................................15
Tigner v. State of Texas, 310 U.S. 141 (1940).................................................................................................................18
Warth v. Seldin, 422 U. S. 490, 499 (1975)........................................................................................................13
West Virginia State Bd. of Ed. v. Barnette, 319 U.S. 624 (1943).................................................................................................................14
WTC Families for a Proper Burial, Inc. v. City of New York, 567 F.Supp.2d 529 (S.D.N.Y. 2008)........................................................................................11
FEDERAL CONSTITUTION
First Amendment ................................................................................................................... passim
v

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Fourteenth Amendment ......................................................................................................... 2-3, 18 Tenth Amendment ................................................................................................................... 21-22 STATE CONSTITUTION N.Y. Const. art. III, § 1 ..................................................................................................................22 N.Y. Const. art. IV, §1 ...................................................................................................................22 N.Y. Const. art. VI .........................................................................................................................22 FEDERAL STATUTES 28 U.S.C. § 1367(c)(3)…………………………………………………………………………...19 STATE STATUTES N.Y. Exec. Law
Art. 2-b .....................................................................................................................................20 § 20(2)(a) .................................................................................................................................21 § 20(2)(b) .................................................................................................................................21 § 28 (1) .....................................................................................................................................21 § 28 (3) .....................................................................................................................................21 § 29.............................................................................................................................................2 STATE EXECUTIVE ORDERS EO 202 ...................................................................................................................................2, 3, 21 EO 202.3 ........................................................................................................................................12 EO 202.4 ........................................................................................................................................12 EO 202.5 ........................................................................................................................................12 EO 202.6 ........................................................................................................................................12 EO 202.7 ........................................................................................................................................12 EO 202.8 ........................................................................................................................................12 EO 202.10 ......................................................................................................................................13 EO 202.17 ........................................................................................................................................3
vi

Case 1:20-cv-00651-GLS-DJS Document 18 Filed 06/15/20 Page 8 of 34 EO 202.31 ......................................................................................................................................13 EO 202.32 ..................................................................................................................................3, 13 EO 202.33 ..................................................................................................................................3, 13 EO 202.38 ........................................................................................................................................9 RULES FRCP 65(b) ......................................................................................................................................8
vii

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PRELIMINARY STATEMENT Plaintiffs, two Catholic priests and three practitioners of the Orthodox Jewish faith, seek an order exempting them from complying with the gathering limitations imposed by New York State in an unprecedented effort to protect New Yorkers from the spread of COVID-19. Due to COVID- 19, New York has been in a state of emergency since March 7, 2020. The limitations and precautions implemented by New York are aimed solely at responding to the COVID-19 pandemic and dramatically slowed the spread of the virus. To continue to protect public health and avoid a resurgence of COVID-19 in New York, Governor Cuomo, with the guidance and assistance of health experts, designed and adopted a four-phase re-opening plan that slowly and methodically modifies gathering limitations, and responds to the continuous evaluation of realtime evolving medical data and the evolving understanding of the transmission of the disease. As regions of the State progress through the phases, more businesses have been permitted to open, people have been permitted to engage in more activities and gathering limitations have relaxed. The restrictions, and the four-phase re-opening plan, target COVID-19, not religion or any viewpoint. Both on their face, and as applied, the Executive Orders, and associated guidance and physical distancing protocols (“protocols”) challenged by plaintiffs are content neutral and generally applicable, and exist solely to protect public health. For the reasons discussed below, plaintiffs’ application for temporary preliminary injunctive relief should be denied. First, plaintiffs fail to satisfy their heavy burden to establish entitlement to such relief. Second, consistent with well establish legal principles, the State is accorded great deference in responding to a public health emergency and cannot be hamstrung in its ability and efforts to continue to evaluate and address the continued dangers of COVID-19 to protect the lives of New Yorkers. Third, the equities balance in favor of protecting public health and continuing New York’s efforts to save lives in the wake of the ongoing pandemic. The risk
1

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to do otherwise cannot be overstated. Finally, issuance of a temporary restraining order (“TRO”) relaxing limitations on mass gatherings contrary to current medical knowledge would not be in the public interest. That New York appears to be responding well to the extreme measures undertaken to combat the pandemic does not mean the danger has abated.
PROCEDURAL HISTORY On June 10, 2020, plaintiffs commenced this action by filing a complaint against defendants Governor Andrew M. Cuomo, Attorney General Letitia James (collectively the “State defendants”) and New York City Mayor Bill deBlasio alleging that various Executive Orders and physical distancing protocols relating to congregate religious services and gatherings violate plaintiffs’ First Amendment rights to freedom of exercise, speech, assembly, and expressive association, and their Fourteenth Amendment right to equal protection, and constitute ultra vires state action in violation of federal rights. Dkt. No. 1. Plaintiffs seek declaratory and injunctive relief. On June 11, 2020, plaintiffs filed an application seeking an order:
[r]estraining Defendants from enforcing any gathering limits on Plaintiffs’ religious gatherings, or, in the alternative, from enforcing any gathering limits on Plaintiffs’ religious gatherings greater than Defendants have imposed on essential retail businesses and the mass demonstrations approved by Defendants Cuomo and de Blasio. Dkt. No. 7. The court thereafter issued a text order denying plaintiffs’ TRO motion to the extent that it applied to religious services on June 12 and 14, and directed defendants to file a response to plaintiffs' application by 12 p.m., on June 15, 2020, and scheduled a hearing on June 17, 2020. Dkt. at 6/11/2020, 3:41pm. EXECUTIVE ORDERS LIMITING GATHERINGS AND REQUIRING PHYSICAL
DISTANCING On March 7, 2020, in order to combat the burgeoning COVID-19 pandemic, pursuant to
2

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New York State Executive Law § 29, Governor Cuomo issued Executive Order (“EO”) 202, implementing the State Comprehensive Emergency Management Plan and declaring a statewide disaster emergency until September 7, 2020. Kerwin Decl., Exh. 0. By Executive Order No. 202, the Governor suspended all state and local laws, rules, and regulations to the extent necessary to cope with the COVID-19 disaster emergency. Id. Following the issuance of EO 202, Governor Cuomo issued several supplemental EOs, continuing the temporary suspension and modification of certain laws relating to the state of emergency. To date, the Governor has issued over thirty additional EOs (Nos. 202.1 through 202.40) related to the COVID-19 disaster emergency, each of which suspends or modifies specified legal provisions and makes declarations related to the disaster emergency. Kerwin Decl., Exhs. 0-40. For purposes of the instant motion, only the current status of gathering limitations and physical distancing protocols are specifically discussed below.
Phase 11 Pursuant to Executive Orders 202.32 and 202.33, in regions eligible for Phase 1 reopening, gatherings of ten or fewer individuals are permitted, provided that individuals adhere to physical distancing2 and cleaning and disinfection protocols required by the New York Department of Health. Kerwin Decl., Exhs. 32, 33. Additionally, any drive-in or remote religious service may continue in excess of the 10-person limit so long as there is no in-person contact between participants. Outdoor congregations of groups for any purpose, including religious service or ceremony, in excess of ten in-person participants remain prohibited under
1 New York City, where plaintiffs Schonbrun, Perr and Mayerfeld attend synagogue, is in Phase 1. 2 Effective April 17, 2020, the Governor issued EO 202.17, which requires any individual who is over age two and able to medically tolerate a face-covering to cover his or her nose and mouth with a mask or cloth face-covering when in a public place and unable to maintain, or when not maintaining, social distance. Kerwin Decl, Exh. 17. This EO remains in effect.
3

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Phase 1 protocols. Businesses permitted to open in Phase 13 must comply with physical distancing protocols.4
Phase 2 In regions that have reached Phase 2, pursuant to Executive Order 202.38, religious gatherings of 25 percent of a house of worship’s maximum indoor capacity are permitted, provided that social distancing and cleaning and disinfection protocols required by the Department of Health are followed. Kerwin Decl., Exh. 38. Under the EO, the following must remain closed during Phase 2: (1) any indoor common portions of retail shopping malls with 100,000 or more square feet of retail space available for lease; (2) indoor on-premise restaurant and bar service; (3) large gathering/event venues, including but not limited to, establishments that host concerts, conferences, or other in-person performances or presentations in front of an in-person audience; (4) gyms, fitness centers, and exercise classes, except for remote or streaming services; (5) video lottery and casino gaming facilities; (6) indoor movie theaters; and (7) places of public amusement, whether indoors or outdoors, including, but not limited to, locations with amusement rides, carnivals, amusement parks, water parks, aquariums, zoos, arcades, fairs, children’s play centers, funplexes, theme parks, bowling alleys, family and children’s attractions. Hutton Decl. at ¶53. Retail businesses
3 Businesses in the following industries are permitted to re-open in Phase 1: (1) construction; (2) agriculture, forestry, fishing, and hunting; (3) retail limited to curbside or in-store pickup/drop off; (4) manufacturing; and (5) wholesale trade. Hutton Decl. at ¶46. 4 These protocols include, but are not limited to, (1) 6-foot distance between personnel; (2) limiting indoor workforce presence to no more than 50% of the maximum occupancy for a particular area set by the certificate of occupancy, inclusive of customers picking up an order who must maintain 6 feet of space from others or wear an acceptable face covering; and (3) wearing of acceptable face covering when personnel are less than 6 feet apart from one another or a customer and without a physical barrier (e.g., plexiglass). Hutton Decl. at ¶48.
4

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opening in Phase 2 must comply with physical distancing requirements similar to those required in Phase 1. Id. at ¶55.
Phase 35 In Phase 3, restaurants and personal care service businesses are added to the non-essential businesses permitted to resume operation. Food service businesses must limit indoor capacity to no more than 50 percent of maximum occupancy, exclusive of employees, and limit outdoor capacity to the number of tables that can be safely and appropriately arranged, such that each table is a minimum of 6 feet away from another. Hutton Decl. at ¶57. Additionally, all indoor and outdoor tables with seating for customers must be separated by a minimum of 6 feet in all directions. Wherever distancing is not feasible between tables, physical barriers must be erected between such tables. Id. Regardless of physical distance, employees must wear an acceptable face covering at all times, and patrons must wear face coverings at all times, except while seated. Individuals seated at the same table must be members of the same party, with a maximum of 10 people per table. Seating in bar areas and communal tables is only permitted if at least 6 feet can be maintained between parties. Id. Personal care businesses must also limit workforce and customer presence to no more than 50 percent of the maximum occupancy, inclusive of customers, who must maintain 6 feet of separation from others, except during the service. Id. at ¶58. Customers may only be permitted entry if wearing an acceptable face covering. Id. Six feet of distance must be maintained between individuals at all times, unless safety or the core activity requires a shorter distance (e.g.
5 As of June 12, 2020, the North Country, where plaintiffs Soos and Stamos perform religious services, is in Phase 3. Hutton Decl. at ¶46.
5

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performing a piercing/tattoo, providing a massage, performing a manicure/pedicure). Id. Employees must wear face coverings any time they interact with customers, and any time they come within 6 feet of another person. Id. Customer seating must allow customers to maintain 6 feet of distance from all others except for the employee providing service, unless a physical barrier is in place in accordance with OSHA guidelines. Id.
Additionally, employees at appointment desks or cash registers must maintain 6 feet of distance from others, unless there is a physical barrier between them, or the employee is wearing a face covering. Id. However, even with a barrier, employees must wear a face covering any time they interact with a customer. Id. All waiting rooms must remain closed. Id.
FACTS AS ALLEGED BY THE PLAINTIFFS Plaintiffs allege that New York’s 10-person outdoor gathering limit and the Phase 2 limitation on indoor religious services at 25 percent capacity violate their constitutional rights to participate in congregate religious activities. Plaintiffs Soos and Stamos are Catholic priests who perform religious services and ceremonies to congregations in Glens Falls, Massena and Nicholville, all located in New York’s North Country Region. Dkt. No. 1 at ¶¶77-81. These plaintiffs allege that the 25 percent capacity limitation of EO 202.38 required them, on June 7, to offer five masses at one of their churches, instead of the “normal” two. Id. at ¶93. Also on June 7, plaintiff Stamos had to offer three drive-in Masses for another congregation, rather than the four in-person Masses that would have otherwise been held. Id. at ¶94. Plaintiffs Soos and Stamos also allege that the “drive-in masses” permitted by EO 202.32 “involve major and unjustified burdens” on plaintiffs Soos and Stamos and their congregations., id. at ¶97, because, inter alia, the drive-in services (1) prevent worshippers from
6

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kneeling; (2) require people to be uncomfortable in vehicles; (3) require the administration of Holy Communion two worshippers at a time instead of in a kneeling row; and (4) expose priests and altar servers to bad weather. Id. at ¶97.
Plaintiffs Sconburn, Perr and Mayerfeld are practitioners of the Orthodox Jewish faith who attend synagogues in Brooklyn. Dkt. No. 1 at ¶103. The complaint alleges that the Orthodox Jewish faith requires that synagogue prayers take place by a “minimum quorum of ten adult males (thirteen or older), called the “minyan,” and several congregants, a few times a week.” These prayers require a close gathering around, and reading from, the Torah. Id. at ¶¶104, 106. Further, since the minyan must be present in the same room, the separate-car concept of permitted drive-in services is not possible. Id. at ¶109. Additionally, “any type of operation of a vehicle is prohibited on the Sabbath, which is the day the main weekly service takes place.” Id. at ¶110.
Plaintiffs allege that the 10-person gathering limit applicable in New York City in Phase 1, and the drive-in services, permitted by EOs 202.32 and 202.33 impose several burdens. Id. at ¶107. For instance, plaintiffs claim that, if services are limited to only a minyan, no one else can attend, including (1) women, (2) a young man intending to attend his own Bar Mitzvah, (2) “a bride-to-be at her own wedding,” or (3) “a newborn and his own circumcision.” Id. at ¶¶108, 111-112. Additionally, plaintiff Schonbrun alleges that his son, who is not old enough to be part of a minyan, has been precluded from attending synagogue because of the 10-person gathering limit. Id. at ¶129. Plaintiff Perr alleges that, because of the 10-person gathering limit, his son’s Bar Mitvah, could not be held on May 2 at his synagogue, id. at ¶148, and his wife and six children have been unable to attend services. Id. Plaintiff Mayerfeld’s wife and daughter also cannot attend services. Id.
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ARGUMENT To establish entitlement to temporary preliminary relief under FRCP 65(b), a plaintiff must satisfy a very heavy burden.6 Specifically, plaintiffs here must establish (1) the likelihood of success on the merits; (2) that they will suffer irreparable harm if a TRO is not issued; (3) that the equities balance in their favor; and (4) that the TRO is in the public interest. Amato v. Elicker, 2020 U.S. Dist. LEXIS 87758, *7 (D. Conn. May 19, 2020) (applying this standard to an application for a TRO challenging Executive Orders issued during the COVID-19 pandemic). See also Geller v. De Blasio, 2020 U.S. Dist. LEXIS 87405, *6 (S.D.N.Y. May 18, 2020) (applying this standard to challenge of Executive Order relating to non-essential gatherings during the COVID-19 pandemic); Lee v. Trump, 2020 U.S. Dist. LEXIS 49860, *1 (S.D.N.Y. March 23, 2020) (applying this standard to challenge of travel ban during the COVID-19 pandemic). Plaintiffs cannot satisfy any of these elements.
POINT I PLAINTIFFS FAIL TO ESTABLISH THAT THEY ARE LIKELY TO SUCCEED ON THE MERITS OF THEIR CLAIMS The TRO sought here must be denied based on the Supreme Court’s May 29, 2020 decision in South Bay United Pentecostal Church v. Newsom, 2020 U.S. LEXIS 3041 (May 29, 2020). The plaintiffs in South Bay challenged an EO issued by the Governor of California that limits “attendance at places of worship to 25% of building capacity or a maximum of 100
6 In this Circuit, the standard that must be met is the same as the standard governing the issuance of a preliminary injunction. Fairfield Cty. Med. Ass'n v. United Healthcare of New England, 985 F. Supp. 2d 262, 270 (D. Conn. 2013), aff'd as modified sub nom, Fairfield Cty. Med. Ass'n v. United Healthcare of New England, Inc., 557 F. App'x 53 (2d Cir. 2014).
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attendees.” Id. at *1. Concurring with the court’s denial of plaintiffs’ application for
preliminary injunctive relief, Chief Justice Roberts stated as follows:
Although California’s guidelines place restrictions on places of worship, those restrictions appear consistent with the Free Exercise Clause of the First Amendment. Similar or more severe restrictions apply to comparable secular gatherings, including lectures, concerts, movie showings, spectator sports, and theatrical performances, where large groups of people gather in close proximity for extended periods of time. And the [Executive] Order exempts or treats more leniently only dissimilar activities such as operating grocery stores, banks, and laundromats, in which people neither congregate in large groups nor remain in close proximity for extended periods.
Id. at *2.
The same is true in New York. As stated above, although places of worship in Phase 2
and Phase 3 regions may operate at 25 percent capacity under Executive Order 202.38, Kerwin
Decl at Exh. 38, other places where large groups of people gather in close proximity for extended
periods of time remain closed such as (1) indoor shopping malls; (2) large gathering/event
venues such as establishments that host concerts, conferences, or other in-person performances
or presentations in front of an in-person audience; (3) in person gyms, fitness centers, and
exercise classes; (4) video lottery and casino gaming facilities; (5) indoor movie theaters; and (6)
places of public amusement, whether indoors or outdoors, including but not limited to, locations
with amusement rides, carnivals, amusement parks, water parks, aquariums, zoos, arcades, fairs,
children’s play centers, funplexes, theme parks, bowling alleys, family and children’s attractions.
Hutton Decl. at ¶53.
As noted by Justice Roberts, when explaining the deference that must be accorded to
state officials responding to a pandemic,
[t]he precise question of when restrictions on particular social activities should be lifted during the pandemic is a dynamic and fact-intensive matter subject to reasonable disagreement. Our Constitution principally entrusts “[t]he safety and the health of the people” to the politically accountable officials of the States to
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“guard and protect.” [Citation omitted] When those officials “undertake[] to act in areas fraught with medical and scientific uncertainties,” their latitude “must be especially broad.” [Citation omitted] Where those broad limits are not exceeded, they should not be subject to second-guessing by an “unelected federal judiciary,” which lacks the background, competence, and expertise to assess public health and is not accountable to the people. [Citation omitted] South Bay at **2-3. Governor Cuomo is entitled to this deference in connection with the protocols at issue here. As applicable to all of plaintiffs’ constitutional claims discussed below, the EOs and protocols are supported by a rational basis and are entitled to deference by the court. The government must be afforded considerable deference in dealing with the health and safety of its citizens, particularly in times of the outbreak of disease. South Bay at **2-3. See also Phillips v. City of New York, 775 F.3d 538, 543 (2d Cir. 2015) (the “right to practice religion freely does not include liberty to expose the community…to communicable disease or…ill health or death”). Protection of the public from a deadly, fast-spreading disease with no vaccine or cure is certainly a significant state interest, Amato v. Elicker, 2020 U.S. Dist. LEXIS 87758, **28029 (D. Conn. May 19, 2020), and the EOs and protocols have a “‘real and substantial relation’ to the state’s goal of curbing the spread of the virus.” Id. at *30. Accordingly, the EOs and protocols satisfy rational basis review. For the reasons set forth below, plaintiffs, like the plaintiffs in South Bay, cannot establish that they are likely to succeed on the merits of any of their claims, their application for a TRO should be denied. A. Free Exercise To “state a free exercise claim, a plaintiff generally must establish that ‘the object of [the challenged] law is to infringe upon or restrict practices because of [its] religious motivation,’ or that the law’s ‘purpose…is the suppression of religion or religious conduct.’” Congregation of
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Rabbinical College of Tartikov, Inc. v. Vill. of Pomona, 915 F.Supp.2d 574, 619 (S.D.N.Y. 2013) (quoting Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520, 533 (1993)). The right of the free exercise of religion does not relieve an individual or entity of the obligation to comply with a “valid and neutral law of general applicability.” Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U.S. 872 (1990). As a result, where an alleged limitation on the exercise of religion “is not the object ... but merely the incidental effect of a generally applicable and otherwise valid provision, the First Amendment has not been offended.” Id. at 878. See also Bloomingburg Jewish Educ. Ctr. v. Village of Bloomingburg, 111 F.Supp.3d 459, 484 (S.D.N.Y. 2015) (stating that a “law or regulation that is neutral and of general applicability is constitutional even if it has an incidental effect on religion”). Therefore, a law that only incidentally imposes a burden on the exercise of religion need only be supported by a rational basis. WTC Families for a Proper Burial, Inc. v. City of New York, 567 F.Supp.2d 529, 539-540 (S.D.N.Y. 2008) (quoting Leebart v. Harrington, 332 F.3d 134, 143 (2d Cir. 2003)).
Plaintiffs’ free exercise claim should be dismissed because the EOs limiting gatherings, and associated physical limiting protocols and guidelines, do not target religion, are neutral and generally applicable, and any burden on religion is merely incidental. Both on their face, and when considered in connection with the ongoing pandemic, the EOs and protocols protect the entire public at large. Accordingly, they are generally applicable.
They are also neutral. The neutrality of a law is determined by the consideration of relevant factors, including, inter alia, “the historical background of the decision under challenge,” and “the specific series of events leading to the enactment or official policy in question.” Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. at 540. Religious beliefs are not targeted by the EOs or protocols, and their “object” is plainly not to interfere with plaintiffs’, or anyone’s, exercise
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of religion. Id. at 533 (“if the object of a law is to infringe upon or restrict practices because of their religious motivation, the law is not neutral.”). Rather, the plain text of the EOs, as well as the series of events leading to their enactment and physical distancing protocols, establish that the object of the EOs and protocols is to stop the spread of COVID-19. Their purpose is to protect public health.
Plaintiffs fail to offer any record evidence to support a finding that the EOs and protocols unconstitutionally disfavor religion. Rather, they mischaracterize the EOs in an attempt to distract the court from the fact that the adopted protocols were carefully calibrated to respond to the distinctive environments they address based upon the risk of transmission.
For example, gatherings of up to 50 people, including religious gatherings, were permitted under EO 202.3, even though that EO ordered various businesses, such as restaurants, video lottery and casino gaming facilities, gyms, fitness centers and movie theaters, to close. Kerwin Decl. at Exh. 3. Gatherings, including religious gatherings, were permitted to continue up to 50 people when schools were closed by EO 202.4. Id. at Exh. 4. They also continued to be permitted when indoor malls, and all places of public amusement, including but not limited to, locations with amusement rides, carnivals, amusement parks, water parks, aquariums, zoos, arcades, fairs, children’s play centers, funplexes, theme parks, bowling alleys, family and children’s attractions were closed by EO 202.5. Id. at Exh. 5.
Gatherings of up to 50 people continued to be permitted when the Governor ordered the reduction of the in-person workforce by 50 percent by EO 202.6. Id. at Exh. 6. They continued to be permitted when all personal care services businesses were ordered to close, and the in-person workforce was reduced by 75 percent by EO 202.7. Id. at Exh. 7. When EO 202.8 reduced the inperson workforce by 100 percent, gatherings up to 50 people continued to be permitted.
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EO 202.10 prohibited all gatherings “of any size for any reason.” Id. at Exh. 10. Thereafter, EO 202.31 permitted gatherings for religious and Memorial Day services up to 10 people. Id. at Exh. 31. Gatherings up to 10 people were later permitted by EO 202.33 for any purpose. Id. at Exh. 33. Thereafter, notwithstanding the 10-person gathering limit applicable to all gatherings, drive-in religious services were allowed to take place in Phase 1 regions without a gathering limit so long as there was no contact between participants. Id. at Exhs. 32, 33. In Phase 2, notwithstanding that all other large-capacity venues must remain closed, places of religious worship may open up to 25 percent capacity.
This evolution of the closing and opening of New York demonstrates that, at no time, has religion been disfavored or targeted in any way. But, for some unascertainable reason, plaintiffs point to this careful consideration as unconstitutional “targeting” of religion.
In any event, any limitations on religion caused by the EOs or protocols are merely incidental. As the complaint demonstrates, plaintiffs Soos and Stamos can, and have been, holding masses in the North Country churches that they serve. Dkt. No. 1 at ¶¶94, 97. That the services cannot take place at the times, with the frequency, and groups sizes that they prefer are merely incidental burdens not protected by the First Amendment. Id. at ¶¶89-97. Similarly, plaintiffs Schonbrun, Perr and Mayerfeld may attend services as part of a minyan.7 Id. at ¶¶128, 148, 150,
7 While plaintiffs Schonbrun, Perr and Mayerfeld allege that their wives and children cannot attend services, they lack standing to assert any challenges on behalf of their wives, and are not alleged in the complaint to be bringing representative claims on behalf of their children. Typically, “a party ‘must assert his own legal rights’ and ‘cannot rest his claim to relief on the legal rights . . . of third parties.’” Sessions v. Morales-Santana, 137 S.Ct. 1678, 198 L. Ed. 2d 150, 162 (2017) (quoting Warth v. Seldin, 422 U. S. 490, 499 (1975)). As the complaint does not allege that the wives of plaintiffs are “hindered” in any way in bringing their own lawsuit, id. (stating that hindrance must “stem[] from disability,” not “disinterest,”), and plaintiffs did not assert representative claims on behalf of minor children, the claims are theirs alone.
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160-161. Since gatherings up to 10-people are permitted – unlike at the times that they encountered police intervention – they are not unlawful and may proceed.
Since they are both generally applicable and neutral, the EOs and protocols need only be supported by a rational basis. See Fortress Bible Church v. Feiner, 694 F.3d 208, 220 (2d Cir 2012). As discussed above, they are so supported. Accordingly, plaintiffs cannot establish that they are likely to succeed on the merits of their free exercise claim.
B. Free Speech, Expressive Association and Assembly In both their complaint, Dkt. No. 1, and memorandum of law in support of their TRO
application, Dkt. No. 2-4, plaintiffs discuss the freedoms of speech, expressive association and assembly as a single concept and one cause of action. Dkt. No. 1 at ¶¶178-186; Dkt. No. 2-4 at pp. 19-22. While plaintiffs may wish to conflate the issues to avoid appropriate constitutional analysis, considerations of each First Amendment freedom are necessary to determine whether plaintiffs are likely to succeed on the merits of their claim.
1. Freedom of Speech First, the First Amendment guarantee of free speech protects the right to be free from
government-compelled speech or expressive conduct. Rumsfeld v. Forum for Academic and Institutional Rights, Inc., 547 U.S. 47, 61 (2006); West Virginia State Bd. of Ed. v. Barnette, 319 U.S. 624, 642 (1943)). It “prohibits the government from telling people what they must say,” not what they must do. Rumsfeld, 547 U.S. at 61. Nothing in the EOs or protocols dictates what plaintiffs may or may not say. Instead, they dictate how many people may congregate in a single space at one time, and the distances people must maintain while doing so. Because they regulate conduct, and not speech, the EOs and protocols do not implicate the right to free speech.
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2. Freedom of Expressive Association Second, the First Amendment right to expressive association protects the “‘right to
associate with others in pursuit of a wide variety of political, social, economic, educational, religious, and cultural ends.’” Boy Scouts of America v. Dale, 530 U.S. at 640, 647 (2000) (quoting Roberts v. United States Jaycees, 468 U.S. 609, 622 (1984)). However, the freedom of association “is not absolute.” Id. at 648. Incidental burdens on associational interests do not violate the First Amendment. Indeed, unless the burden on expressive association rights is “severe,” the law need only be supported by a rational basis. Jacoby & Meyers, LLP v. Presiding Justices of the First, Second, Third & Fourth Dep’ts, 852 F.3d 178, 191 (2d Cir. 2017).
Here, any burden on expressive association rights resulting from the EOs or protocols are merely incidental. “Mere incidental burdens on the right to associate do not violate the First Amendment; rather, to be cognizable, the interference with plaintiffs’ associational rights must be direct and substantial or significant.” Tabbaa v. Chertoff, 509 F.3d 89, 101 (2d Cir. 2007) (internal quotation and alteration from original omitted); accord Fighting Finest v. Bratton, 95 F.3d 224, 228 (2d Cir. 1996) (citing Lyng v. Intl. Union, 485 U.S. 360, 367 & n.5 (1988)). For the same reasons, discussed above, that any burden on plaintiffs’ free exercise of religion is incidental, so is any burden on plaintiffs’ expressive association rights. Plaintiffs are not precluded from associating for religious purposes; their groups must just be smaller and people must maintain safe physical separation. The burdens alleged by plaintiffs are precisely the type of incidental burdens that the First Amendment does not protect.
For the same reasons discussed above in connection with plaintiffs’ free exercise claim, the gathering limits, guidance, and physical distancing protocols are rationally related to the State’s interests in protecting the public health during the COVID-19 pandemic.
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3. Freedom of Assembly Third, the “right of the people to peaceably assemble” is protected by the First
Amendment. U.S. Const. Amend. I. “However, courts have long held that the constitutional right to assembly…is not absolute.” Amato v. Elicker, 2020 U.S. Dist. LEXIS 87758, **27-28 (D. Conn. May 19, 2020). Public gatherings may be stopped if they pose, inter alia, a “threat to public safety.” Papineau v. Parmley, 465 F.3d 46, 56 (2d Cir. 2006).
When distilled to the facts as alleged by plaintiffs, plaintiffs’ actual argument appears to be that the EOs limiting gatherings, and associated protocols, prevent them from assembling for congregate religious purposes in locations of their choosing, in unlimited groups, without maintaining safe physical distance. Plaintiffs cannot succeed on the merits of this claim, and, therefore, the TRO sought by plaintiffs should be denied for the same reasons that the TRO was recently denied by the court in Amato v. Elicker, 2020 U.S. Dist. LEXIS 87758 (D. Conn. May 19, 2020).
In Amato, the restaurant owner plaintiffs challenged an EO limiting gatherings in Connecticut to six people in light of the COVID-19 pandemic. Id. at **1, 12. Like the court in South Bay, the court in Amato relied heavily on the Supreme Court decision in Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11 (1905), and stated
while the power of state governments during an epidemic is, of course, not limitless [citation omitted], Jacobson requires that courts refrain from second guessing state governments’ responses unless there is “no real or substantial relation” between the actions and the public health and safety or the action is ‘beyond all questions, a plain, palpable invasion of rights. Amato, 2020 U.S. Dist. LEXIS 87758 at **28-29. The court further stated that “[e]ven constitutional rights, including First Amendment rights, are subject to ‘reasonable conditions’ to preserve public health.” Id. at *29.
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Applying this standard8 to the 6-person gathering limitation, the court held that the “COVID-19 pandemic constitutes the sort of public health crisis—or ‘epidemic of disease which threatens the safety of [a community’s] members’—contemplated by the Jacobson court, and the Executive Order “has a ‘real and substantial relation’ to the state’s goal of curbing the spread of the virus.”9 Id. at *30.
The same result is required here. The gathering limits challenged by plaintiffs are “not ‘arbitrary,’ not ‘unreasonable,’ and not ‘beyond all question, a plain, palpable invasion of rights.’” Id. at *31. While the EOs limit the size of gatherings, they do “not altogether prohibit [p]laintiffs from assembling with other people, nor [do they] limit with whom [p]laintiffs may assemble. Courts have upheld more extreme measures taken in response to public health needs, including quarantines, which limit a person’s right to assemble with any other person.” Id. (emphasis in original).
For these reasons, plaintiffs cannot succeed on the merits of their freedom of assembly claim, and, therefore, plaintiffs’ request for a TRO should be denied. Id. at **32, 39.
C. Equal Protection Plaintiffs appear to challenge a perceived distinction between “essential gatherings
8 The court stated: “I find that the standard articulated in Jacobson applies here. The decision has never been overturned…Since the outbreak of the COVID-19 pandemic, courts around the country have applied Jacobson’s standards to state orders intended to combat the virus. [Citations omitted.]” Amato at **29-30. See also Phillips v. City of New York, 775 F.3d 538, 543 (2d Cir. 2015) (“’The right to practice religion freely does not include liberty to expose the community . . . to communicable disease . . . .’”) (quoting Prince v. Massachusetts, 321 U.S. 158, 166-67 (1944)). 9 The court noted that the EO was “imposed in light of recommendations from the CDC and the Connecticut Department of Public Health to implement ‘community mitigation strategies to increase containment of the virus’…” Amato at *31.
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without gathering-size limitations” and non-essential gatherings subject to “unique burdens.” Dkt. No. 2-4 at p. 21. While difficult to comprehend, it appears that plaintiffs claim that religious services are subject to different gathering limits than businesses and other activities. Id. at p. 22. See also Dkt. No. 1 at 187-197. As noted above, the Supreme Court has recognized that such distinctions are rational. South Bay at *2.
The Equal Protection Clause provides that no state shall “deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const., Amend. XIV. Its command is essentially a direction that all persons similarly situated should be treated alike. City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 439 (1985). An equal protection claim cannot be maintained unless a plaintiff shows that it is not being treated the same as similarly situated individuals. New York State Club Assoc. v. Citv of New York, 487 US 1, 17-18 (1988); Tigner v. State of Texas, 310 U.S. 141, 147 (1940) (the Equal Protection Clause “does not require things which are different in fact or opinion to be treated in law as though they were the same”).
Like those in South Bay, the gathering restrictions applicable to other large-capacity indoor-gatherings are either the same, or stricter, than those applicable to places of worship. South Bay at *2. Places in which larger gathering limits are permitted involve “dissimilar activities, such as…grocery stores, banks, and laundromats, in which people neither congregate in large groups nor remain in close proximity for extended periods.” Id. Accordingly, to the extent that plaintiffs allege that the EOs and protocols permit higher gathering limits for dissimilar locations or activities, the Equal Protection clause is not implicated because the comparators are not similarly situated. Additionally, because the gathering limits are rationally related to the State’s interests in protecting the public health, plaintiffs cannot establish that they are likely to succeed on the merits of their equal protection claim.
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D. Lack of State Authority Since plaintiffs will not be able to succeed on the merits of their federal claims, the
court should decline to exercise pendent jurisdiction over plaintiffs’ state claims pursuant to 28 U.S.C. § 1367(c)(3). Additionally, the Eleventh Amendment prohibits federal courts from ordering state officials to conform their conduct to state law. Pennhurst State Sch. v. Halderman, 465 U.S. 89 (1984). As a result, plaintiffs cannot establish that they are likely to succeed on the merits of their state claims.
In addition, the EOs were issued in accordance with state and federal law. The power to impose quarantines and other public health measures in response to a pandemic is among the most fundamental police powers reserved to the states by the Tenth Amendment to the United States Constitution. Jacobson v. Massachusetts, 197 U.S. 11, 25 (1905); Compagnie Francaise De Navigation A Vapeur v. La. State Bd. of Health, 186 U.S. 380, 387 (1902); Morgan S.S. Co. v. La. Bd. of Health, 118 U.S. 455, 460 (1886); Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 203 (1824). “Upon the principle of self-defense, of paramount necessity, a community has the right to protect itself against an epidemic of disease which threatens the safety of its members.” Jacobson, 197 U.S. at 27. Accordingly, “when [a] state faces a major public health threat…its Tenth Amendment police and public health powers are at a maximum.” Legacy Church, Inc. v. Kunkel, 2020 U.S. Dist. LEXIS 68415, **97-98 (D.N.M. Apr. 17, 2020) (citing Prince v. Massachusetts, 321 U.S. 158, 166-67 (1944) (“The right to practice religion freely does not include liberty to expose the community or the child to communicable disease….”)).
The standard of review accorded to a state’s exercise of its emergency police powers is highly deferential. An action taken pursuant to those police powers must only be “reasonably necessary” to respond to a public health emergency to survive constitutional scrutiny. Friends of
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Devito v. Wolf, 2020 Pa. LEXIS 1987, *39 (PA Sup. Ct., Apr. 13, 2020) (relying on Lawton v. Steele, 152 U.S. 133 (1894)). See also In re Abbott, 954 F.3d 772, 784 (5th Cir. 2020); Smith v. Avino, 91 F.3d 105, 109 (11th Cir. 1996) (“the scope of review is limited to . . . determin[ing] whether” state “actions were taken in good faith and whether there is some factual basis” for them); Legacy Church, Inc., 2020 U.S. Dist. LEXIS 68415 at *122. The details of the response represent a “policy choice” within the governor’s discretion. Friends of Devito, 2020 Pa. LEXIS 1987 at *39. See also In re Abbott, 954 F.3d at 791. Thus, invalidation of reasonable emergency measures promulgated pursuant to the state’s police power to respond to a global pandemic “would usurp the functions of another branch of government.” Jacobson, 197 U.S. at 28.
Far more intrusive measures than those at issue here fall within a state’s police power to respond to a public health emergency. See, e.g., id. at 26, 31 (state may compel vaccination against smallpox on pain of criminal prosecution); cf. Legacy Church, Inc., 2020 U.S. Dist. LEXIS 68415 (emergency order restricting places of worship to five individuals or fewer within state’s police power); In re Abbot, 954 F.3d at 787-788 (holding that temporary ban on all “nonessential” abortions did not violate United States Constitution). In sum, emergency measures in the face of a pandemic are “the most essential of powers, at times the most insistent, and always one of the least limitable powers of government.” District of Columbia v. Brooke, 214 U.S. 138, 149 (1909).
1. New York Statutory Law
Consistent with the constitutional exercise of the State’s police power to respond to imminent threat to the health of the citizenry, the Executive Law gives the governor broad power to respond to a disaster such as COVID-19. See generally N.Y. Exec. Law Art. 2-b (“State and Local Natural and Man-Made Disaster Preparedness”). “Whenever the governor, on his [or her]
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own initiative or pursuant to a request from one or more chief executives, finds that a disaster has occurred or may be imminent for which local governments are unable to respond adequately, he shall declare a disaster emergency by executive order.” N.Y. Exec Law § 28(1). A “disaster” is any “occurrence or imminent, impending or urgent threat of wide spread or severe damage, injury, or loss of life or property resulting from any natural or man-made causes, including, but not limited to . . . disease outbreak . . . .” Id. at § 20(2)(a).
The EO declaring a state disaster emergency “shall include a description of the disaster, and the affected area.” Id. at § 28(3). The state disaster emergency starts on the date of the declaration and ends “upon the termination” of the disaster declaration. Id. at § 20(2)(b). The initial state disaster emergency declaration cannot exceed six months, but “[t]he governor may issue additional orders to extend the state disaster emergency for additional periods not to exceed six months.” Id. at § 28(3).
The EOs issued to address the COVID-19 pandemic, Kerwin Decl. at Exhs. 0-40, are in compliance with these standards. As mentioned above, on March 7, 2020, Governor Cuomo issued EO 202. Supporting the executive order, the Governor found “that a disaster is impending in New York State, for which the affected local governments are unable to respond adequately.” Kerwin Decl., Exh. 0. Accordingly, the Governor declared a “state disaster emergency for the entire state of New York,” to be in effect until September 7, 2020. Id. EO 202, and each subsequent EO, references the current state disaster emergency.
Since the EOs were issued in accordance with the Executive Law, plaintiffs cannot demonstrate that they are likely to succeed on the merits of their claim that the EOs were issued in excess of the Governor’s statutory authority.
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2. New York Constitution Plaintiffs allege that the EOs and protocols violate the separation of powers doctrine
derived from New York’s Constitution. Dkt. No. 1 at 203-205 (alleging violations of art. III, § 1; art. IV, § 1; art. VI). Contrary to plaintiffs’ assertions, legislative action as not required to implement the EOs and associated protocols.
“Article III of the State Constitution vests the Senate and the Assembly with the legislative power of the State, while article IV vests the executive power in the Governor and article VI vests the court system with the judicial power.” Saratoga County Chamber of Commerce v. Pataki, 100 N.Y.2d 801, 821 (2003) (citing N.Y. Const. art. III, § 1; art. IV, § 1; art. VI, § 1). The Court of Appeals has recognized that these "‘separate grants of power to each of the coordinate branches of government’ imply that each branch is to exercise power within a given sphere of authority.” Id. (quoting Clark v Cuomo, 66 N.Y.2d 185, 189 (1985). See also Bourquin v Cuomo, 85 N.Y.2d 781, 784 (1995); Matter of New York State Health Facilities Assn. v Axelrod, 77 N.Y.2d 340, 349 (1991).
Since, as described above, the EOs were issued in accordance with the authority granted to the Governor by the New York Legislature through the enactment of Article 2-b of the Executive Law, plaintiffs cannot establish that the EOs were issued in excess of the Governor’s authority.
Since plaintiffs have failed to make the requisite showing that they are likely to succeed on any of their causes of action, their motion for a TRO must be denied. However, even if, arguendo, the court finds that likelihood of success has been sufficiently proven, plaintiffs’ application for temporary injunctive relief should nevertheless be denied because plaintiffs
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cannot establish that (1) they will suffer irreparable harm in the absence of a TRO, (2) the equities balance in their favor, or (3) the issuance of TRO is in the public interest
POINT II PLAINTIFFS FAIL TO ESTABLISH THAT THEY WILL SUFFER IRREPARABLE HARM IF A TEMPORARY RESTRAINING ORDER IS NOT GRANTED DURING THE PENDENCY OF THEIR MOTION FOR A PRELIMINARY INJUNCTION “Although ‘the loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury,’” courts “have not consistently presumed irreparable harm in cases involving allegations of the abridgement of First Amendment rights[.]” Bronx Household of Faith v. Bd. of Educ., 331 F.3d 342, 349 (2d Cir.2003) (quoting Elrod v. Burns, 427 U.S. 347, 373 (1976)). See also CompassCare v. Cuomo, 2020 U.S. Dist. LEXIS 98930, *30 (N.D.N.Y. June 5, 2020). A movant is entitled to the presumption that a loss of First Amendment freedoms constituted irreparable harm only when he or she “alleges injury from a rule or regulation that directly limits” a First Amendment right. Bronx Household of Faith, 331 F.3d at 349 (emphasis added). See also Rossi v. Fischer, 2014 U.S. Dist. LEXIS 158064, *40 (S.D.N.Y. Sept. 11, 2014). In this case, irreparable harm should not be presumed because, as discussed above, plaintiffs are not being prohibited from exercising their rights; instead, the manner in which they may exercise them has changed – including the size of the groups in which they may congregate. Plaintiffs devote only two paragraphs of their memorandum of law to the issue of irreparable harm, relying only on an expectation that such harm should be presumed simply because plaintiffs have alleged violations of First Amendment rights in their complaint. Dkt. No. 2-4 at
23

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p. 23-24. By doing so, plaintiffs have ignored the reality of the limitations imposed by the EOs and protocols, and the fact that they may still exercise their rights.
Specifically, the complaint alleges that plaintiffs Soos and Stamos can perform and attend Sunday masses. Dkt. No. 1 at ¶¶94, 97. The complaint also alleges that worshippers of at churches served by plaintiffs Soos and Stamos can work within the 25% limitation capacity. Id. at 93, 94. It simply is not unconstitutional to require priests to work more, or differently, than they prefer. Similarly, the discomfort associated with attending services in vehicles, id. at 97, and the logistical difficulties associated with performing drive-in services, id., are not irreparable harms that preliminary injunctive relief is designed to prevent.
Plaintiffs Schonbrun, Perr and Mayerfeld have failed to allege, must less prove or support, any irreparable harm at all. They are all permitted to participate in a minyan. Nothing about the EOs currently in effect may prevent it. Plaintiffs’ claims about alleged harms they suffered in March and April are completely irrelevant to whether they will suffer irreparable harm before a decision is issued on plaintiffs’ motion for a preliminary injunction.
Additionally, speculative harm is not sufficient to entitle a party to a TRO. The complaint alleges that the Nicholville church may exceed gathering limits when children return to school. Since children are not now in school, any harms associated with school days is irrelevant to whether plaintiffs will suffer irreparable harm in the short period before the court issues a decision on plaintiff’s motion for a preliminary injunction. Similarly, speculation about weddings, Dkt. No. 1 at ¶96, or burial services, id. at ¶101, that may occur in the future is precisely the type of “harm” that is insufficient to support a finding of irreparable harm necessary to justify a TRO.
Additionally, plaintiffs have not submitted any declarations from any plaintiff, or any
24

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other member of plaintiffs’ churches or synagogues, to demonstrate that the EOs have, in fact, hindered anyone’s ability to assemble and participate in congregate religious services. In fact, the allegations of the complaint, itself, document that masses are still being held and attended in the North Country churches served by plaintiffs Soos and Stamos, and the plaintiffs living in Brooklyn may, and are, attending services. In light of this record, plaintiffs necessarily cannot establish that they will suffer irreparable harm in the short period before their preliminary injunction motion is heard and decided.
POINT III THE EQUITIES BALANCE IN FAVOR OF THE STATE’S EFFORTS TO PROTECT THE PUBLIC HEALTH DURING THE EXISTING PANDEMIC, AND ISSUANCE OF A TRO IS NOT IN THE PUBLIC INTEREST Because plaintiffs cannot establish the likelihood of success on the merits of their claims, or irreparable harm, the court need not consider “the public’s interests in a temporary restraining order or the balance of the equities.” Amato at **38-39. In any event, and critically, the equities balance in favor of continuing the State’s aggressive response to a deadly pandemic, in accordance with the State’s thoroughly informed, complex paradigm based upon a “dynamic and fact intensive” analysis, without the interference of the courts that lack such expertise. South Bay at *3. Moreover, the risk of resurgence countenances against any short relief requested by plaintiffs. For these reasons, a TRO would not be in the public interest and would, in fact, run counter to the public intertest in stopping the spread of the virus.
CONCLUSION For the reasons discussed above, and in the declaration of Brad Hutton submitted herewith and incorporated herein, and the facts supported by the exhibits annexed to the Hutton
25

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declaration and the declaration of Adrienne J. Kerwin, plaintiffs’ application for temporary

preliminary injunctive relief should be denied in its entirety.

Dated: Albany, New York June 15, 2020

LETITIA JAMES Attorney General of the State of New York Attorney for Defendants Andrew M. Cuomo
and Letitia James The Capitol Albany, New York 12224

By: s/ Adrienne J. Kerwin
Adrienne J. Kerwin Assistant Attorney General Bar Roll No. 105154 Telephone: (518) 776-2608 Fax: (518) 915-7738 (Not for service of papers) Email: Adrienne.Kerwin@ag.ny.gov

TO: Christopher A. Ferrara, Esq. (via ECF) 148-29 Cross Island Parkway Whitestone, NY 11357

Melanie V. Sadok (via ECF and email) Senior Counsel NYC Law Department 100 Church Street New York, NY 10007

26

 Case 1:20-cv-00651-GLS-DJS Document 19 Filed 06/15/20 Page 1 of 3

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK ----------------------------------------------------------------------- x

REV. STEVEN SOOS, REV. NICHOLAS STAMOS, DANIEL SCHONBURN, ELCHANAN PERR, and MAYER MAYERFELD,
Plaintiff,

DECLARATION OF ELLEN PARODI

-against-

20-CV-00651

ANDREW M. CUOMO, Governor of the State of New York, in his official capacity, LETITIA JAMES, Attorney General of the State of New York in her official capacity, and BILL DE BLASIO, Mayor of the City of New York, in his official capacity,

Defendants.

----------------------------------------------------------------------- x

ELLEN PARODI, declares pursuant to 28 U.S.C. § 1746, under penalty of

perjury, that the following is true and correct:

1. I am an Assistant Corporation Counsel in the office of James E. Johnson,

Corporation Counsel of the City of New York, attorney for Defendant Bill De Blasio, Mayor of

the City of New York. My application for admission to this Court pro hac vice is currently

pending. I am familiar with the facts stated below and submit this declaration to place on the

record relevant documents in support of Defendant Bill De Blasio’s Memorandum of Law in

Opposition to Plaintiffs’ Motion for a Temporary Restraining Order.

2. Attached as Exhibit 1 are true and correct copies of New York State

Executive Order No. 202.3 entitled “Continuing Temporary Suspension and Modification of

Laws Relating to the Disaster Emergency,” signed by Governor Andrew M. Cuomo on March

16,

2020;

also

available

at

https://www.governor.ny.gov/sites/governor.ny.gov/files/atoms/files/EO_202.3.pdf (last visited

1

Case 1:20-cv-00651-GLS-DJS Document 19 Filed 06/15/20 Page 2 of 3

June 12, 2020), New York State Executive Order No 202.5 entitled “Continuing Temporary

Suspension and Modification of Laws Relating to the Disaster Emergency,” signed by Governor

Andrew M. Cuomo on March 18, 2020; also available at

https://www.governor.ny.gov/sites/governor.ny.gov/files/atoms/files/EO_202_5.pdf (last visited

June 12, 2020), and New York State Executive Order No. 202.19 entitled “Continuing

Temporary Suspension and Modification of Laws Relating to the Disaster Emergency,” signed

by Governor Andrew M. Cuomo on April 17, 2020; also available at

https://www.governor.ny.gov/sites/governor.ny.gov/files/atoms/files/EO_202.19.pdf (last visited

June 12, 2020).

3. Attached as Exhibit 2 are true and correct copies of New York State Executive

Order No. 202.33 entitled “Continuing Temporary Suspension and Modification of Laws

Relating to the Disaster Emergency,” signed by Governor Andrew M. Cuomo on May 22, 2020;

also available at https://www.governor.ny.gov/news/no-20233-continuing-temporary-

suspension-and-modification-laws-relating-disaster-emergency (last visited June 13, 2020) and

New York City Emergency Executive Order No. 115 entitled “Emergency Executive Order,”

signed by Mayor Bill de Blasio on May 24, 2020; also available at

https://www1.nyc.gov/assets/home/downloads/pdf/executive-orders/2020/eeo-115.pdf

(last

visited June 13, 2020).

4. Attached as Exhibit 3 is a true and correct copy of New York State

Executive Order No. 202.38 entitled “Continuing Temporary Suspension and Modification of

Laws Relating to the Disaster Emergency,” signed by Governor Andrew M. Cuomo on June 6,

2020; also available at https://www.governor.ny.gov/sites/governor.ny.gov/files/atoms/files/EO-

202.38-final.pdf (last visited June 13, 2020).

2

Case 1:20-cv-00651-GLS-DJS Document 19 Filed 06/15/20 Page 3 of 3

5. Attached as Exhibit 4 are true and correct copies of the Order and Transcript of Oral Argument in the case Butler v. City of New York, 20-cv-4067 (S.D.N.Y. June 5, 2020).
6. Attached as Exhibit 5 is a true and correct copy of the Order denying plaintiff’s application for an injunction pending appeal in Geller v. de Blasio, 20-1592 (2d Cir. June 4, 2020).
7. Attached as Exhibit 6 is a true and correct copy of New York City Emergency Executive Order No. 124 entitled “Emergency Executive Order,” signed by Mayor Bill de Blasio on June 12, 2020.

Dated:

New York, New York June 15, 2020

_____/S/______________________ Ellen Parodi Assistant Corporation Counsel (application for admission pro hac vice pending)

3

Case 1:20-cv-00651-GLS-DJS Document 19-7 Filed 06/15/20 Page 1 of 16

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK ----------------------------------------------------------------------- x

REV. STEVEN SOOS, REV. NICHOLAS STAMOS, DANIEL SCHONBURN, ELCHANAN PERR, and MAYER MAYERFELD,
Plaintiffs,

20-CV-00651

-against-

ANDREW M. CUOMO, Governor of the State of New York, in his official capacity, LETITIA JAMES, Attorney General of the State of New York in her official capacity, and BILL DE BLASIO, Mayor of the City of New York, in his official capacity,

Defendants.

----------------------------------------------------------------------- x

DEFENDANT BILL DE BLASIO’S MEMORANDUM OF LAW IN OPPOSITION TO PLAINTIFFS’ MOTION FOR A TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION

JAMES E. JOHNSON Corporation Counsel of the
City of New York Attorney for Defendant Bill de Blasio 100 Church Street New York, New York 10007

Michelle Goldberg-Cahn, Melanie V. Sadok, Ellen Parodi,
of Counsel.
June 15, 2020

Case 1:20-cv-00651-GLS-DJS Document 19-7 Filed 06/15/20 Page 2 of 16

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .......................................................................................................... ii DEFENDANT MAYOR DE BLASIO’S MEMORANDUM OF LAW IN OPPOSITION TO PLAINTIFF’S MOTION FOR A TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION .................................................................................................... 1
Plaintiffs’ Free Speech Claim Lacks Merit................................................................... 3
Plaintiffs’ Free Exercise of Religion Claim Fails ......................................................... 5
Plaintiffs’ Equal Protection and Substantive Due Process Claims Are Not Likely to Succeed ......................................................................................................................... 9
The Balance of Hardships Tips Decidedly in the City’s Favor……………… .......... 10
CONCLUSION............................................................................................................................. 11

Case 1:20-cv-00651-GLS-DJS Document 19-7 Filed 06/15/20 Page 3 of 16

TABLE OF AUTHORITIES

Cases

Pages

Amato v. Elicker, 2020 U.S. Dist. LEXIS 87758 (D. Conn. May 19, 2020)..........................................................4

Antietam Battlefield Koa v. Hogan, 1010 U.S. Dist. LEXIS 88883 (D. Md. May 20, 2020) .....................................................4, 6, 7

Bery v. City of New York, 97 F.3d 689 (2d Cir. 1996), cert. denied, 520 U.S. 1251 (1997) ............................................................................................1

Butler v. City of New York, 20-cv-4067 (S.D.N.Y. June 5, 2020) .................................................................................3, 4, 5

Calvary v. Sisolak, 2020 U.S. Dist. LEXIS 103234 (D. Nev. June 10, 2020) ..........................................................8

Cassell v. Snyders, 2020 U.S. Dist. LEXIS 77512 (N.D. Ill. May 3, 2020) .............................................................5

Caviezel v. Great Neck Pub. Schools, 500 Fed. Appx. 16 (2d Cir. 2012) ............................................................................................10

Cent. Rabbinical Cong. of the United States v. New York City Dep’t of Health and Mental Hygiene, 763 F. 3d 183 (2d Cir. 2014)..................................................................................................1, 5

Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993)...................................................................................................................5

Cine SK8, Inc. v. Town of Henrietta, 507 F. 3d 778 (2d Cir. 2007)......................................................................................................9

Cross Culture Christian Center v. Newsom, 2020 U.S. Dist. LEXIS 79155 (E.D. C.A. May 5, 2020)..........................................................6

Davis v. Berke, 2020 U.S. Dist. LEXIS 74057 (E.D. Tenn. April 17, 2020)......................................................6

Elim Romanian Pentescostal Church v. Pritzker, 2020 U.S. Dist. LEXIS 84348 (N.D. Ill. May 13, 2020) ...........................................................6

Faiveley transp. Malmo AB v. Wabtec Corp., 559 F.3d 110 (2d Cir. 2009).......................................................................................................1

-ii-

Case 1:20-cv-00651-GLS-DJS Document 19-7 Filed 06/15/20 Page 4 of 16

Cases

Pages

Geller v. de Blasio, 2020 U.S. Dist. LEXIS 87405 (S.D.N.Y May 18, 2020).........................................1, 3, 4, 5, 10
Givens v. Newsom, 2020 U.S. Dist. LEXIS 81760 (E.D.C.A. May 8, 2020)............................................................4
Jacobson v. Massachusetts, 197 U.S. 11 (1905)...............................................................................................................3, 10
Legacy Church, Inc. v. Kunkel, 2020 U.S. Dist. LEXIS 68415 (D. N.M. April 17, 2020) ..........................................................6
NRA of Am. v. Cuomo, 2019 U.S. Dist. LEXIS 78958 (N.D.N.Y 2019) ........................................................................9
N.Y. Progress and Prot. PAC v. Walsh, 733 F.3d 488 (2d Cir. 2013).......................................................................................................1
New Hope Family Servs. v. Poole, 387 F. Supp. 3d 194 (1998) .......................................................................................................5
Open Our Oregon v. Brown, 2020 U.S. Dist. LEXIS 87942 (SD. Or. May 19, 2020) ............................................................4
Phillips v. City of New York, 775 F. 3d 538 (2d Cir. 2015)......................................................................................................5
Plaza Health Labs., Inc. v. Perales, 878 F.2d 577, 580 (2d Cir. 1989)...............................................................................................1
Prince v. Massachusetts., 321 U.S. 158 (1944)...................................................................................................................5
Rother v. NYS Dep’t of Correction and Community Supervision, 970 F. Supp. 2d 78 (N.D.N.Y. 2013)...................................................................................9–10
South Bay United Pentecostal v. Newsom, 2020 WL 2813056, 590 U.S. ___ (2020)...........................................................................6, 7, 8
Spell v. Edwards, 2020 U.S. Dist. LEXIS 85909 (M.D. La. May 15, 2020)..........................................................6
Trump v. Deutsche Bank AG, 943 F3d 627, 640 (2d Cir. 2019)................................................................................................1

-iii-

Case 1:20-cv-00651-GLS-DJS Document 19-7 Filed 06/15/20 Page 5 of 16

Cases

Pages

Other Authorities
Doctor Claiming to ‘Reverse’ Abortion Was Told to Stop Using Medical School’s Name, The Guardian, July 25, 2019 https://www.theguardian.com/world/2019/jul/25/revealed-doctor-reverseabortion-trump-administration (last visited June 13, 2020).......................................................7
“Experts Sound Alarm Over Coronavirus Spread as U.S. Ramps Up Reopening, Prepares for More Protests,” The Wall Street Journal, June 6, 2020, https://www.wsj.com/articles/experts-sound-alarm-over-coronavirusspread-as-u-s-ramps-up-reopening-prepares-for-more-protests-11591395463 (last visited June 13, 2020) ........................................................................................................8
“How to Protest Safely During the COVID-19 Pandemic,” NYC Health, June 8, 2020, https://www1.nyc.gov/assets/doh/downloads/pdf/imm/covid-19-safeprotest.pdf (last visited June 14, 2020) ......................................................................................8
“Michigan Lifts a Stay-at-Home Order, and New York Warns that Protests Could Set Off Infections,” The New York Times, June 1, 2020, https://www.nytimes.com/2020/06/01/world/coronavirus-world-news.html (last visited June 13, 2020) ........................................................................................................9
New York City Emergency Executive Order No. 115 ............................................................1, 2, 3
New York City Emergency Executive Order No. 124 ....................................................................2
New York State Executive Order No. 202.3....................................................................................2
New York State Executive Order No. 202.5....................................................................................2
New York State Executive Order No. 202.19..................................................................................2
New York State Executive Order 202.33 ................................................................................1, 2, 3
New York State Executive Order 202.38 ........................................................................................2
“Protests Draw Shoulder-to Shoulder Crowds After Months of Virus Isolation,” The New York Times, June 3, 2020 ..........................................................................................8
United States Constitution First Amendment ........................................................................ passim
“Will Protests Set Off a Second Viral Wave?” The New York Times, May 31, 2020 https://www.nytimes.com/2020/05/31/health/protests-coronavirus.html (last visited June 13, 2020) ........................................................................................................8

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Case 1:20-cv-00651-GLS-DJS Document 19-7 Filed 06/15/20 Page 6 of 16
DEFENDANT MAYOR DE BLASIO’S MEMORANDUM OF LAW IN OPPOSITION TO PLAINTIFFS’ MOTION FOR A TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION
Defendant Mayor Bill de Blasio, submits this memorandum of law in opposition to Plaintiffs’ motion for a temporary restraining order/preliminary injunction. In order to establish their entitlement to a preliminary injunction against government action taken in the public interest, Plaintiffs must establish (1) that they will be irreparably injured if the relief sought is not granted; (2) that they are likely to succeed on the merits of their claims; (3) that a balance of the hardships tips decidedly in their favor; and (4) that an injunction would be in the public interest. See Trump v. Deutsche Bank AG, 943 F.3d 627, 637-640 (2d Cir. 2019) (citations omitted); Cent. Rabbinical Cong. of the United States v. New York City Dep’t of Health & Mental Hygiene, 763 F.3d 183, 192 (2d. Cir. 2014); Plaza Health Labs., Inc. v. Perales, 878 F.2d 577, 580 (2d Cir. 1989). See also Bery v. City of New York, 97 F.3d 689 (2d Cir. 1996), cert. denied, 520 U.S. 1251 (1997).
The Second Circuit has held that “[v]iolations of First Amendment rights are commonly considered irreparable injuries for the purposes of a preliminary injunction,” Bery, 97 F.3d at 693. “Although a showing of irreparable harm is often considered the ‘single most important prerequisite for the issuance of a preliminary injunction,’ Faiveley transp. Malmo AB v. Wabtec Corp., 559 F.3d 110, 118 (2d Cir. 2009) (citation omitted), ‘[c]onsideration of the merits is virtually indispensable in the First Amendment context, where the likelihood of success on the merits is the dominant, if not the dispositive, factor.’ N.Y. Progress and Prot. PAC v. Walsh, 733 F.3d 488 (2d Cir. 2013).” Geller v. de Blasio, 2020 U.S. Dist. LEXIS 87405, at *6 (S.D.N.Y May 18, 2020).
Plaintiffs here are unable to succeed on the merits of their claims as they relate to Defendant Mayor de Blasio, asserting that the gathering limitation of more than 10 set forth in New York State Executive Order No. 202.33 and New York City Emergency Executive Order
1

Case 1:20-cv-00651-GLS-DJS Document 19-7 Filed 06/15/20 Page 7 of 16
No. 115 (collectively “the gathering limitation”) violates their First Amendment rights (Free Speech and Free Exercise) and their substantive due process rights. Preliminarily, it is important to note there are three New York State Executive Orders that restrict local governments from acting inconsistently with, or without approval of, the state government. New York State Executive Order No. 202.3 states that “[n]o local government or political subdivision shall issue any local emergency order or declaration of emergency or disaster inconsistent with, conflicting with or superseding the foregoing directives, or any other executive order issued under Section 24 of the Executive Law . . . .” See Exhibit “1” to the accompanying Declaration of Ellen Parodi, dated June 15, 2020 (“Parodi Dec.”). New York State Executive Order No. 202.5 states that “no locality or political subdivision shall issue any local emergency order or executive order with respect to response of COVID-19 without the approval of the State Department of Health.” See id. New York State Executive Order No. 202.19 states that “[n]o local government official shall take any action that could impede or conflict with any other local government actions, or state actions, with respect to managing the COVID-19 public health emergency.” See id. Accordingly, it is clear that Plaintiffs challenge the State’s actions in responding to the COVID19 public health emergency, and any actions made by Defendant de Blasio merely follow the New York State Executive Orders.
Furthermore, the City is currently only in Phase 1 of the Governor’s phased reopening plan, and thus the portion of the New York State Executive Order authorizing houses of worship to operate at 25% capacity is not in effect in New York City. See Exhibit “3” to the Parodi Dec. Only the gathering limitation prohibiting gatherings with more than 10 people (New York State Executive Order No. 202.33 and New York City Emergency Executive Order No. 115) is in effect in New York City.1 See Exhibit “2” to the Parodi Dec. Therefore, Defendant de Blasio does not address Plaintiffs’ claims regarding houses of worship operating at 25% capacity.
1 New York City Emergency Executive Order 115 has recently been renewed and, as of the date of this Memorandum of Law, is in effect in New York City. See Exhibit “6” to the Parodi Dec.
2

Case 1:20-cv-00651-GLS-DJS Document 19-7 Filed 06/15/20 Page 8 of 16
A. Plaintiffs’ Free Speech Claim Lacks Merit As early as 1905, the Supreme Court, in the seminal case Jacobson v.
Massachusetts, 197 U.S. 11, 31, 25 S. Ct. 358, 363 (1905), acknowledged that in matters of public health and safety, deference is due to the state and legislative body. The Court explained that when reviewing a statute “purporting to have been enacted to protect the public health, the public morals or the public safety,” that allegedly violates a fundamental right, the statute must not be disturbed unless it “has no real or substantial relation to those objects, or is, beyond all question, a plain, palpable invasion of rights secured by the fundamental law...” Jacobson, 197 U.S. at 31.
Indeed, the Southern District of New York has recently held on two occasions that the emergency gathering limitation does not violate the First Amendment right of freedom of speech and assembly. See Geller, 2020 U.S. Dist. LEXIS 87405 (S.D.N.Y May 18, 2020) and Butler v. City of New York, 20-cv-4067 (S.D.N.Y. June 5, 2020) annexed to the Parodi Dec. as Exhibit “4.” In Geller, the plaintiff challenged the emergency gathering limitation in effect at that time which prohibited gatherings of any size.2 The Geller plaintiff argued that the prohibition of gatherings prohibited her desire to protest in a group in public. The district court in Geller found that the gathering limitation (even before it allowed up to 10 people to gather) was content-neutral and passed intermediate scrutiny. The Court in Geller explained in relevant part:
The March 25 Executive Order is content-neutral. It orders “any non-essential gathering of individuals of any size for any reason.”
2 The Emergency Orders at issue are temporary in nature, including the gathering limitation. See Ex. “2” to the Parodi Dec. Indeed, as the emergency situation surrounding the COVID-19 public health crisis shifted, the restrictions on non-essential gatherings eased, shifting the prohibition on gatherings of any size, to allowing gatherings of 10 or fewer individuals. See id.
3

Case 1:20-cv-00651-GLS-DJS Document 19-7 Filed 06/15/20 Page 9 of 16
It does not target the contents of the speech itself or the listener’s agreement or disagreement with those contents. Instead, it targets the harmful secondary effects of public gathering -- the spread of a novel virus for which there currently is no cure or effective treatment. Geller, 2020 U.S. Dist. LEXIS 87405 at *10. The Second Circuit recently denied Geller’s application for a TRO pending appeal. See Geller v. de Blasio, 20-1592 (2d Cir. June 4, 2020) annexed to the Parodi Dec. as Exhibit “5.” In Butler, the plaintiffs had been arrested for violating the gathering limitation while protesting in a group of approximately 20 in City Hall Park, and sought to enjoin further enforcement of the executive order, claiming it violated their First Amendment rights. See Butler, Exhibit “4.” In the midst of the protests and demonstrations in response to the unfortunate circumstances surrounding the death of George Floyd that ensued during the Butler plaintiffs’ application for a temporary restraining order, and despite Plaintiffs’ arguments that the protests demonstrated that the limitation was not content-neutral, the Southern District of New York again upheld the gathering limitation as content-neutral and narrowly tailored. See Butler, Exhibit “4” (Transcript at 7-8, 31). These decisions are consistent with decisions in many other cases across the country similarly challenging limitations on gatherings due to COVID-19 on First Amendment free speech and assembly grounds. See e.g., Antietam Battlefield Koa v. Hogan, 2020 U.S. Dist. LEXIS 88883 (D. Md. May 20, 2020) (finding that state orders restricting, among other things, gatherings of over 10 people, was content-neutral and passed intermediate scrutiny); Givens v. Newsom, 2020 U.S. Dist. LEXIS 81760 (E.D.C.A. May 8, 2020) (finding California’s Stay at Home order was content-neutral and did not run afoul of the Free Speech Clause); see also Amato v. Elicker, 2020 U.S. Dist. LEXIS 87758 (D. Conn. May 19, 2020); Open Our Oregon v. Brown, 2020 U.S. Dist. LEXIS 87942 (D. Or. May 19, 2020).
4

Case 1:20-cv-00651-GLS-DJS Document 19-7 Filed 06/15/20 Page 10 of 16
Plaintiffs have pointed to no case law or basis for this Court to not follow these well-reasoned decisions. Therefore, Plaintiffs are not likely to succeed on the merits of their free speech claim.
B. Plaintiffs’ Free Exercise of Religion Claim Fails While Plaintiffs have also brought a free exercise of religion claim under the First
Amendment, which Geller and Butler did not address, Plaintiffs’ are likewise not likely to succeed on the merits of that claim. The Supreme Court long ago decreed that “[t]he right to practice religion freely does not include liberty to expose the community... to communicable disease.” Prince v. Massachusetts, 321 U.S. 158, 166-67 (1944). It is well established that “a law that is neutral and of general applicability need not be justified by a compelling governmental interest even if the law has the incidental effect of burdening a particular religious practice.” Phillips v. City of New York, 775 F.3d 538 (2d Cir. 2015)(quoting Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 531, 113 S. Ct. 2217, 124 L. Ed. 2d 472 (1993)). See also Cent. Rabbinical Cong. of the United States 763 F.3d at 198. The plain language of the gathering limitation indicates that it is not targeted at a particular religious practice nor does it discriminate against a religious belief. See e.g. New Hope Family Servs. v. Poole, 387 F. Supp. 3d 194, 215 (N.D.N.Y. 2019) (“The plain language of the regulation demonstrates its neutrality, which makes no reference to religion…”). Indeed, the gathering limitation applies to any non-essential gathering for any purpose. See Ex. 2 to the Parodi Dec.
Moreover, several courts across the country have found similar orders to be neutral and generally applicable, and not a violation of the free exercise of religion. See Cassell v. Snyders, 2020 U.S. Dist. LEXIS 77512 (N.D. Ill. May 3, 2020) (rejecting a Free Exercise Clause challenge to Illinois’ limit on gathering to no more than ten people, as the limit was neutral and generally applicable, even where religious services were listed in the state’s order,
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and passed rational basis review); Cross Culture Christian Center v. Newsom, 2020 U.S. Dist LEXIS 79155 (E.D. Cal.. May 5, 2020) (rejecting a Free Exercise Clause challenge to California’s order on mass gatherings, as the order was neutral, generally applicable, and passed rational basis review); Elim Romanian Pentecostal Church v. Pritzker, 2020 U.S. Dist LEXIS 84348 (N. D. Ill. May 13, 2020) (rejecting a Free Exercise Clause challenge to Illinois’ limit on gatherings to no more than ten people, as the limit was neutral, generally applicable, and passed rational basis review); see also Antietam Battlefield KOA v. Hogan, 2020 U.S. Dist. LEXIS 99993 (D. Md. May 20, 2020); Spell v. Edwards, 2020 U.S. Dist. LEXIS 85909 (M.D. La. May 15, 2020); Davis v. Berke, 2020 U.S. Dist. LEXIS 74057 (E.D. Tenn. April 17, 2020); Legacy Church, Inc. v. Kunkel, 2020 U.S. Dist. LEXIS 68415 (D. N.M. April 17, 2020).
In fact, the Supreme Court recently denied an application for injunctive relief regarding an Executive Order issued by the Governor of California restricting social interactions and gatherings. See South Bay United Pentecostal v. Newsom, 2020 WL 2813056, 590 U.S. ___ (May 29, 2020). The Supreme Court acknowledged that the California guidelines place restrictions on houses of worship, but found them to be consistent with the Free Exercise Clause of the First Amendment. Id. at *1. The Supreme Court further reiterated its view of the limited role the judicial branch should have in deciding when such restrictions should be lifted, explaining:
The precise question of when restrictions on particular social activities should be lifted during the pandemic is a dynamic and fact-intensive matter subject to reasonable disagreement. Our Constitution principally entrusts “[t]he safety and the health of the people to the politically accountable officials of the States “to guard and protect.” Jacobson v. Massachusetts, 197 U.S. 11, 38 (1905). When those officials “undertake[] to act in areas fraught with medical and scientific
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Id at *1.

uncertainties,” their latitude “must be especially broad.” Marshall v. United States, 414 U.S. 417, 427 (1974). Where those broad limits are not exceeded, they should not be subject to secondguessing by an “unelected federal judiciary,” which lacks the background, competence, and expertise to assess public health and is not accountable to the people. See Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528, 545 (1985).3

Plaintiffs’ argument that the gathering limitation is not a neutral law of general

applicability in light of the purported “exemption” given to the protests in response to the

unfortunate circumstances surrounding the death of George Floyd lacks merit. The plain

content-neutral language of the gathering limitation has not changed – all gatherings of 10 or

more persons in New York City are prohibited. Nor have Plaintiffs demonstrated that the

limitation has not been enforced with regard to other comparable, secular gatherings.4 See

Antietam Battlefield KOA v. Hogan, 2020 U.S. Dist. LEXIS 99993 at *21-22 (D. Md. May 20,

2020) (discussing that the proper comparison is with comparable secular activities and

3 Consistent with this decision, the declaration of Dr. George Delgado, Plaintiffs’ purported expert, should be disregarded by the Court. Additionally, it is worth noting that Dr. Delgado does not claim to have experience in public health or epidemiology, and failed to name the medical practice and hospice that he is affiliated with. Upon information and belief, Dr. Delgado is the medical director of Culture of Life Family Health. See “Doctor Claiming to ‘Reverse’ Abortion Was Told to Stop Using Medical School’s Name,” The Guardian, July 25, 2019, https://www.theguardian.com/world/2019/jul/25/revealed-doctorreverse-abortion-trump-administration (last visited June 13, 2020). Finally, because the New York City resident Plaintiffs Daniel Schonburn, Elchanan Perr and Mayer Mayerfeld are not representatives of specific religious institutions, and appear to attend multiple synagogues, it is wholly unclear whether and how they are positioned to ensure the implementation of the necessary safety precautions that Dr. Delgado recommends. See Complaint at ¶ 103.

4 Plaintiffs claim that religious services are comparable to protests as people are standing in close proximity and singing. However, there is one key difference between the two, which is that the vast majority of religious services are held indoors while the protests occur outdoors. It is safe to say that unlike Plaintiffs Rev. Steven Soos’ and Rev. Nicholas Stamos’ church in the North District, most houses of worship in New York City lack outdoor space, or outdoor space large enough for large groups of worshipers, let alone socially distant worshipers. Moreover, notably Dr. Delgado’s safety recommendations do not include that the congregants or clergy wear face coverings.
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distinguishing religious services from essential services and retail). See also South Bay United
Pentecostal v. Newsom, 2020 WL 2813056 at *1, 590 U.S. ___ (2020).
Moreover, while public safety considerations surrounding recent protests in the
City have led to a temporary relaxation in enforcement of the gathering limitation, the limitation
nevertheless remains in effect. City officials are addressing the ongoing public health crisis as it
overlaps with the public safety concerns raised by the protests to the best of their ability, under
dynamic and often fraught circumstances. The limitation should not be disturbed simply because
public safety considerations factored into decision-making surrounding enforcement. As the
District Court of Nevada explained in a recent decision addressing similar claims:
Outdoor protests involve dynamic large interactions where state officials must also consider the public safety implications of enforcement of social distancing. That is to say that such enforcement could result in greater harm than that sought to be avoided by the Directive. The choice between which regulations or laws shall be enforced in social settings is a choice allocated generally to the executive, not the judiciary, absent clear patterns of unconstitutional selective enforcement.
Calvary v. Sisolak, 2020 U.S. Dist. LEXIS 103234 at *12 (D. Nev. June 10, 2020)
Further, it has been noted that health experts and other officials are concerned that
the protests in cities all over the U.S. may well lead to another spike in COVID-19 cases.5

5 See, e.g., “How to Protest Safely During the COVID-19 Pandemic,” NYC Health, June 8, 2020,

https://www1.nyc.gov/assets/doh/downloads/pdf/imm/covid-19-safe-protest.pdf (last visited June 14,

2020); “Experts Sound Alarm Over Coronavirus Spread as U.S. Ramps Up Reopening, Prepares for More

Protests,” The Wall Street Journal, June 6, 2020, https://www.wsj.com/articles/experts-sound-alarm-

over-coronavirus-spread-as-u-s-ramps-up-reopening-prepares-for-more-protests-11591395463

(last

visited June 13, 2020); “Protests Draw Shoulder-to Shoulder Crowds After Months of Virus Isolation,”

The New York Times, June 3, 2020, https://www.nytimes.com/2020/06/02/us/coronavirus-protests-

george-floyd.html?action=click&module=Spotlight&pgtype=Homepage (last visited June 13, 2020);

“Will Protests Set Off a Second Viral Wave?” The New York Times, May 31, 2020

https://www.nytimes.com/2020/05/31/health/protests-coronavirus.html (last visited June 13, 2020);

Governor Cuomo “voiced strong concerns that days of crowded and chaotic protests in New York City

against racism and deadly police brutality could set off a second wave of coronavirus infections.”

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Therefore, the fact that the City has temporarily relaxed its enforcement of the gathering
limitation in the context of the protests out of a need to balance public safety concerns with
public health concerns, does not undermine the neutrality or general applicability of the
gathering limitation as a limitation on all gatherings of more than 10 people. Therefore,
Plaintiffs are not likely to succeed on their free exercise of religion claim.
C. Plaintiffs’ Equal Protection and Substantive Due Process Claims Are Not Likely to
Succeed
Finally, Plaintiffs’ are not likely to succeed on their equal protection claim, as
Plaintiffs have failed to demonstrate that the City has not chosen to enforce the gathering
limitation toward others that are similarly situated, such as comparable secular activities. See
Cine SK8, Inc. v. Town of Henrietta, 507 F.3d 778, 790 (2d Cir. 2007) (internal citations
omitted); NRA of Am. v. Cuomo, 2019 U.S. Dist. LEXIS 78958, at *7 (N.D.N.Y. 2019). As
noted above, the gathering limitation applies to all non-essential gatherings. See Ex. 2 of Parodi
Dec.
Moreover, to the extent Plaintiffs allege a violation of substantive due process,
such claim is not likely to succeed on the merits as Plaintiffs have failed to demonstrate that they
“Michigan Lifts a Stay-at-Home Order, and New York Warns that Protests Could Set Off Infections,” The New York Times, June 1, 2020, https://www.nytimes.com/2020/06/01/world/coronavirus-worldnews.html (last visited June 13, 2020). In recognition of the current situation, the NYC Department of Health and Mental Hygiene issued the following guidelineson May 30, 2020 for safe protesting: “Plan to protest? Here are tips to reduce the risk of spreading #COVID19: ✔️Wear a face covering ✔️Wear eye protection to prevent injury ✔️Stay hydrated ✔️Use hand sanitizer ✔️Don't yell; use signs & noise makers instead ✔️Stick to a small group ✔️Keep 6 feet from other groups— nychealthy (@nycHealthy) May 30, 2020”
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were deprived of a constitutionally-protected liberty or property right. See Rother v. NYS Dep’t of Correction and Community Supervision, 970 F. Supp. 2d 78, 100 (N.D.N.Y. 2013) (holding that “[b]ecause the claim for substantive due process is subsumed by Plaintiff's’ other constitutional claims, it must be dismissed”). Indeed, as recognized by the Second Circuit, in the absence of a viable First Amendment claim, as noted in the seminal public health Supreme Court decision in Jacobson v. Massachusetts, 197 U.S. at 26, which rejected a challenge to a Massachusetts mandatory smallpox vaccination law, forecloses a substantive due process challenge by Plaintiffs here. See Caviezel v. Great Neck Pub. Schools, 500 Fed. Appx. 16, 19 (2d Cir. 2012). Therefore, Plaintiffs are unlikely to succeed on the merits of their equal protection or substantive due process claims.
D. The Balance of Hardships Tips Decidedly in the City’s Favor Aside from the fact that Plaintiffs are not likely to succeed on the merits of their
claims, any harm to Plaintiffs is substantially outweighed by the City’s significant interest in protecting the public during this unprecedented public health emergency. Indeed, in Geller v. de Blasio, the Court acknowledged the City’s interest in slowing “the spread of a virus that has hospitalized and killed tens of thousands of New Yorkers and infected hundreds of thousands more.” See Geller v. de Blasio, 2020 U.S. Dist. LEXIS, at *10. Accordingly, given the paramount importance of the City’s interest in protecting the public health, the balance of hardships tips decidedly in Defendant de Blasio’s favor.
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CONCLUSION

For the foregoing reasons, Defendant Mayor Bill de Blasio respectfully requests

that this Court deny Plaintiffs’ motion for a temporary restraining order and preliminary

injunction, together with such other and further relief as this Court deems just and proper.

Dated:

New York, New York June 15, 2020

JAMES E. JOHNSON Corporation Counsel
of the City of New York Attorney for Defendant Mayor Bill de Blasio 100 Church Street New York, New York 10007 (212) 356-4371

By: _____/s/_________________ MELANIE V. SADOK (application for admission pro hac vice pending) ELLEN PARODI (application for admission pro hac vice pending) Assistant Corporation Counsels

cc: Christopher A. Ferrara, Esq. Attorney for Plaintiffs
Adrienne J. Kerwin, Esq. Assistant Attorney General of the State of New York Attorney for Defendants Andrew M Cuomo and Letitia James (By ECF)

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF NEW YORK

REV. STEVEN SOOS,

)

)

REV. NICHOLAS STAMOS,

)

)

DANIEL SCHONBRUN,

)

)

ELCHANAN PERR and

)

)

MAYER MAYERFELD

)

)

Plaintiffs,

)

v.

)

)

ANDREW M. CUOMO, Governor of the )

State of New York, in his official capacity, )

)

LETITIA JAMES, Attorney General of the )

State of New York in her official capacity, )

and

)

)

BILL DE BLASIO, Mayor of the City )

of New York, in his official capacity,

)

)

Defendants.

)

Case No. 1:20-cv-0651

PLAINTIFFS’ MEMORANDUM OF LAW IN REPLY TO DEFENDANTS’ MEMORANDA OPPOSING PLAINTIFFS’ APPLICATION FOR A TEMPORARY
RESTRAINING ORDER AND PRELIMINARY INJUNCTION

Case 1:20-cv-00651-GLS-DJS Document 25 Filed 06/16/20 Page 2 of 20 TABLE OF CONTENTS
INTRODUCTION……………………………………………………………………………….1 DISCUSSION……………………………………………………………………………………4
I. LIKELIHOOD OF SUCCESS ON THE MERITS……………………………………4 A.Jacobson’s Role…………………………………………………………………………...4 B. Free Exercise of Religion…………………………………………………………………5 C. Free Speech, Freedom of Assembly, and Expressive Association………………………12 D.State Law Claims………………………………………………………………………...13
II. IRREPARABLE HARM………………………………………………………………14 III. BALANCE OF EQUITIES AND PUBLIC INTEREST…………………………….15 IV. RELIEF SOUGHT…………………………………………………………………….15 CONCLUSION……………………………………………………………………………….. 16
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TABLE OF AUTHORITIES
Cases Adams & Boyle P.C. et al. v. Slatery, 956 F.3d 913 (6th Cir. 2020) .............................................. 5 Butler v. City of New York, 20-cv-4067 (S.D.N.Y. June 5, 2020) ................................................ 13 Calvary Chapel, 2020 U.S. Dist. LEXIS 103234 at *12 (D. Nev. June 10, 2020)....................... 10 Central Rabbinical Congress of U.S. & Canada v. New York Dep’t of Health, 763 F.3d 183, 197
(2d Cir. 2014).............................................................................................................................. 6 Employment Div., Dep’t of Human Res. of Oregon v. Smith, 494 U.S. 872, 914 n. 6 (1990 ......... 2 Fraternal Order of Police Newark Lodge No. 12 v. City of Newark, 170 F.3d 359 (3rd Cir. 1999)
................................................................................................................................................... 10 Geller v. de Blasio, 2020 WL 2520711 (May 18, 2020) .............................................................. 13 Johnson v. Perry, 859 F.3d 156, 165 (2d Cir. 2017) .................................................................... 12 Litzman v. New York City Police Dep’t, 2013 WL 6049066, at *3 (S.D.N.Y. Nov. 14, 2013)...... 9 Norton v. Sam’s Club, 145 F.3d 114, 117 (2d Cir. 1998) ............................................................. 14 Roberts v. Neace, 958 F.3d 409, 414 (6th Cir. 2020) ..................................................................... 4 South Bay United Pentecostal v. Newsom -- S. Ct. ---, 2020 WL 2813056 (May 29, 2020) ......... 2 Ward v. Polite, 667 F.3d 727, 739 (6th Cir. 2012) ......................................................................... 9 Wisconsin Dep’t of Corr. v. Schacht, 524 U.S. 381, 389 (1998) .................................................. 13
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INTRODUCTION Defendants’ opposition memos are as remarkable for what they do not say as for what they do. Most strikingly, Defendants Governor Andrew Cuomo and Attorney General Letitia James say not a word about the recent exemption (whether de facto or de jure) from the challenged gatheringsize limits for mass protests against racism and the unjust death of George Floyd. (See State’s Br. at pp. 1-26.) This despite Plaintiffs’ reliance on the exemption as a primary comparator undermining the constitutionality and even the rationality of Defendants’ gathering limits as applied to worship services. (Plaintiffs’ TRO/PI Br. at pp. 1-3, 10-21.) Apparently, Defendants concede that assembling of tens of thousands of people across the Brooklyn Bridge, for example (see V. Compl. ¶69, FN 8), poses no legally relevant public health risk of spreading COVID-19, and neither, therefore, can much smaller and more-socially distanced religious gatherings. See Hutton Decl., ECF No. 20 at ¶¶11-13 E (citing the CDC for the principle that social distancing is one of the best tools for reducing the spread of COVID-19, without mentioning gathering-size limits). Or it might be that the exemption for mass protests so obviously undermines the general applicability and content-neutrality of the gathering-size limits (including the surprisingly ongoing ban on outdoor gatherings of 10 or more people) that it is simply futile to argue otherewise. Whatever the reason, the silence is deafening. Nor do the state Defendants or Defendant Mayor de Blasio dispute that the exemption for mass protests is a religion-preclusive individualized exemption subject to strict scrutiny under the Free Exercise Clause. (State’s Br. at pp. 10-14; City’s Br. at pp. 5-9; see also Pl.’s TRO/PI Br. at pp. 9-12.). And neither the state nor the city Defendants contend that if the gathering-size limits are subject to strict scrutiny, they advance a compelling interest. (Id.) Indeed it would be nearly impossible to do so after the exemption for the mass protests. See Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 547 (1993) (“It is established in [the Supreme Court’s]

Case 1:20-cv-00651-GLS-DJS Document 25 Filed 06/16/20 Page 5 of 20
strict scrutiny jurisprudence that a law cannot be regarded as protecting an interest of the highest order . . . when it leaves appreciable damage to that supposedly vital interest unprohibited.”). These omissions are staggering and ought to be viewed as dispositive in favor of the relief plaintiffs request—limited, if the Court deems it necessary, in the manner to which plaintiffs would agree, as they make clear below. See Point IV, Relief Requested.
Of course, what Defendants do say is equally troubling. Defendants state, in so many words, that the Supreme Court’s 1905 decision in Jacobson v. Commonwealth of Massachusetts is a blank check to run roughshod over Plaintiffs’ constitutional rights while generously accommodating the rights of tens of thousands of George Floyd protesters. (State’s Br. 15, n. 8, 19-20; City’s Br. 3, 8.) They also view the U.S. Supreme Court’s recent “decision” in South Bay United Pentecostal v. Newsom as controlling despite (a) the Court’s refusal to address the underlying merits questions now before this Court; (b) the absence in the facts presented of anything approaching an exemption for mass protests; and (c) the status of Chief Justice Roberts’ lone observations as conditionally phrased dicta, at a procedural phase in the case, and certainly not a “decision of the Supreme Court” that in any way ties the judicial hands regarding the merits of this case. -- S. Ct. ---, 2020 WL 2813056 (May 29, 2020).
Worse, the state Defendants have the audacity to declare there is no irreparable harm to Plaintiffs here because only “the manner in which they may exercise [their rights] has changed”— a base euphemism that could justify untold amounts of constitutional violations if it were taken seriously and in essence a concession to plaintiffs’ position, see Point II, on the central issue. See, e.g., Employment Div., Dep’t of Human Res. of Oregon v. Smith, 494 U.S. 872, 914 n. 6 (1990) (Blackmun, J., dissenting) (observing that during the Prohibition era, the government’s general
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interest “in prohibiting the use of alcohol . . . could not plausibly have asserted an interest sufficiently compelling to outweigh Catholics’ right to take communion.”)
All told, Defendants have said nothing to undermine Plaintiffs’ original arguments. Defendants’ gathering-size limits clearly burden Plaintiffs’ First Amendment rights to engage in corporate worship consistent with their sincerely held religious beliefs. And the ongoing exemption for mass protests blows a gaping hole in any semblance of the policy’s general applicability and neutrality (including content neutrality), as do other key comparators like crowded drop-in centers, homeless shelters, manufacturing businesses, and more (all similarly situated activities not evaluated by Chief Justice Roberts in South Bay).
While Plaintiffs understand the ongoing risks of COVID-19, they are committed to following the “Temporary Recommendations” outlined in the declaration of their expert witness, Dr. George Delgado. (Delgado Dec., ECF No. 2, Ex. 1, ¶53.)1 As the rate of infection drops well below 1.0 and Defendants exempt all manner of other (and more risky) gatherings that involve large crowds, with people in close proximity, for prolonged periods of time, the right to communal religious worship is entitled to at least equal treatment. The First Amendment allows no less. A Temporary Restraining Order (TRO) and Preliminary Injunction (PI) should thus issue.
1 The city Defendants argue that the Jewish plaintiffs, as lay congregates, cannot guarantee their synagogues will abide by Dr. Delgado’s social distancing and hygiene protocols. (City’s Br. at p. 7, n.3.) But allowing Plaintiffs to participate only in socially-distanced religious services would still allow the state to shut down any religious services that violate social distancing. It also gives synagogues a high incentive to comply given that many other congregants likely share Plaintiffs’ desire to return to congregate religious worship. Finally, this issue did not pose a problem for the Sixth Circuit U.S. Court of Appeals when it granted an injunction pending appeal to individual congregants to return to in-person church services so long as the individual plaintiffs “are willing to practice social distancing” and “are willing to follow any hygiene requirements.” Roberts v. Neace, 958 F.3d 409, 414 (6th Cir. 2020).
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DISCUSSION I. LIKELIHOOD OF SUCCESS ON THE MERITS
A. Jacobson’s Role Defendants argue Jacobson requires that this Court must defer to their judgment about the proper scope of gathering-size limits at this time. (State’s Br. 15, n. 8, 19-20; City’s Br. 3, 8.) But Jacobson is hardly the absolute warrant for rights-suspension that defendants suggest. In South Bay, for instance, Chief Justice Roberts, writing alone, merely noted in an isolated concurrence that, under Jacobson, government officials have broad discretion to enact measures to protect public health during a pandemic. Id., 2020 WL 2813056 at *1 (Roberts, C.J., concurring). But he said the judiciary should not second guess these judgments only “[w]here those broad limits are not exceeded.” Id. Thus, it is clear that Jacobson does not grant government officials the absolute right to limit constitutional rights free from judicial review merely because they cry “Emergency!” Rather, as is well known by now, Jacobson condemns invoking a pandemic to restrict liberties where the law “has no real or substantial relation to [protecting public health], or is, beyond all question, a plain, palpable invasion of rights secured by the fundamental law.” Jacobson, 197 U.S. at 28(emphasis added). Unsurprisingly, numerous courts in recent months have recognized that Jacobson does not authorize arbitrary, unreasonable restrictions on various constitutional rights, even in the name of protecting the public health from COVID-19. See, e.g., Roberts v. Neace, 958 F.3d 409, 414 (6th Cir. 2020) (granting injunction pending appeal against Kentucky’s temporary ban on in-person services notwithstanding Jacobson); First Pentecostal Church of Holly Springs v. City of Holly Springs, Miss., 959 F.3d 669, 670 (5th Cir. 2020) (same re: Holly Springs, Mississippi’s similar restriction); Yashica Robinson v. Atty Gen., State of Alabama., 947 F.3d 1171, 1179 (5th Cir. 2020) (upholding preliminary injunction against state orders restricting abortion for the purpose of
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slowing COVID-19, and stating Jacobson’s “ruling was not an absolute blank check for the exercise of governmental power”); Adams & Boyle P.C. et al. v. Slatery, 956 F.3d 913 (6th Cir. 2020) (same, and holding that state restriction on abortion rights was an unquestionable “plain, palpable invasion of rights” under Jacobson).
Here, it is still abundantly clear that Jacobson does not control the outcome of this case. (Pl.’s TRO/PI Br. at pp. 4-5.) But even taking Jacobson at face value, the underinclusivity of Defendants’ limits on gatherings (especially in light of the exemption for mass protests against racism) is an unquestionable plain, palpable invasion of Plaintiffs’ fundamental rights and is not substantially related to the goal of slowing COVID-19, especially where Defendants’ own exemptions for secular activity show that less restrictive means are readily available and effective (i.e., social distancing and hygiene and sanitization requirements). (Hutton Dec., ECF 20, ¶¶1113.) Defendants have thus exceeded their “broad limits,” as contemplated by Chief Justice Roberts, in slowing COVID-19, rendering their gathering-size limits subject to close judicial scrutiny.
B. Free Exercise of Religion 1. Burdens: The state Defendants argue their limitations on gatherings do not actually burden any Plaintiffs, noting that the two priest Plaintiffs in the North Country continue to say Masses, and that the three Jewish congregants in New York City “may” attend Jewish worship services as part of the 10-person minyan . (State’s Br. pp. 13-14.) But Plaintiffs all have sincerely held religious beliefs to engage in congregate religious services. As to the priest Plaintiffs (Soos and Stamos), this includes engaging in “religious ministry and priestly mission to their flock,” including by way of the in-person delivery of Sacraments to their entire congregations. (V. Compl. ¶¶86-88.) As to the Jewish congregants (Schonbrun, Perr, and Mayerfeld), this includes participating in Jewish worship services even after the 10-person minyan has already assembled,
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as they have no way of guaranteeing before arriving whether 10 men have already assembled, and thus whether they can participate in the minyan. (V. Comp. ¶112.)
Additionally, these Plaintiffs have been prevented from participating in worship or religious services with their family members, who, as women and children, generally are not eligible for the minyan. (V. Compl. ¶¶129 (Schonbrun continually prevented from bringing son to synagogue); 148 (Perr unable to have Bar Mitzvah for son and continually prevented from attending synagogue with his wife and four daughters); and 162 (Mayerfeld continually prevented from bringing wife and daughter to synagogue services).) (See also Mayerfeld Dec. ¶¶6-9.) As a result, these Plaintiffs are unable to fulfill their parental obligations to incorporate their children into their religious traditions and to enjoy the companionship of worshiping with their spouses. While these burdens alone do not make Plaintiffs’ case, they are legally cognizable and trigger First Amendment scrutiny of Defendants’ gathering-size limitations.2
2. General Applicability: The state Defendants’ rely on an unduly narrow rule taken from a district court case that was clarified on appeal in the controlling Second Circuit decision in Central Rabbinical Congress of U.S. & Canada v. New York Dep’t of Health, 763 F.3d 183, 197 (2d Cir. 2014) on which plaintiffs relied in their opening brief. In Central Rabbinical Congress the Court made it clear that general applicability and neutrality are two separate requirements of the Free Exercise Clause. Id.
2 The state Defendants argue the three Jewish Plaintiffs lack standing to assert claims on behalf their wives and children. (State’s Br. p. 13, n. 7.) But Plaintiffs assert standing on their own behalf, not on behalf of their wives and children. The burdens on their wives and children are relevant, however, to the extent their inability to attend worship services deprives Plaintiffs’ of their sincerely held religious beliefs to participate in and attend congregate worship or religious services, including with their wives and children.
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Concerning the separate and distinct requirement of general applicability, the state Defendants studiously avoid a single mention of their gigantic exemption (whether de facto or de jure) for mass protests against racism. They merely announce the conclusion, in one cursory sentence, that the gathering limits are generally applicable because “on their face, and when considered in connection with the ongoing pandemic, [they] protect the entire public at large.” (State’s Br. at p. 11.) This ipse dixit is unsupported by legal or factual analysis—especially the fact of permitted and praised mass protests that undermine their entire “social distancing” regime, which they nonetheless continue to clamp down on religious gatherings a few people in a synagogue or park.
It seems the state Defendant’s intended explanation is in an earlier section arguing that the Supreme Court’s “decision” in South Bay controls this case. (Id. at p. 8.) It’s true Chief Justice Roberts, not the Court, individually opined that houses of worship in California were similarly situated to places like concert halls, theatrical performances, and movie showings, “where large groups of people gather in close proximity for extended periods of time,” and not to places like grocery stores. South Bay, 2020 WL 2813056 at *1 (Roberts, C.J., concurring). But the state Defendants argue that “[t]he same is true in New York”—while completely ignoring the exemption for mass protests, which post-date the decision in South Bay and obviously involve “large groups of people” who “gather in close proximity for extended periods of time.” Id. The state Defendants also overlook other key comparators like manufacturers, drop-in centers, and homeless shelters, which also often involve large groups of people in close proximity for extended periods of time, and which went undiscussed in the Supreme Court’s interlocutory decision in South Bay.
The city Defendant, on the other hand, does acknowledge the issue of mass protests and argues, inexplicably, that they do not undermine restrictions on gatherings. (City’s Br. at pp.8-9.)
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In particular, the city Defendant argues the mass protests are allowed only as a “temporary relaxation in enforcement” as a result of “public safety considerations,” but that “the limitation remains in effect.” (Id. at p. 8.) But the notion that the limitation is still in effect as to mass protests is simply untrue. Just this past Saturday thousands of people gathered for a “Black trans lives” rally outside the Brooklyn Museum in New York City, with no evidence the rally was forbidden.3 A photo of the rally is below:
Indeed, the City’s own brief cites to a New York City public health document dated June 8, 2020 titled “How to Protest Safely During the COVID-19 Pandemic” and gives all indications that protests are allowed and not that they are prohibited under a “temporary relaxation.” (City’s Br. p. 8, n. 5.) What’s more, the city Defendant acknowledges its restrictions must be consistent with state directives (City’s Br. at 2), and just this past Saturday Governor Cuomo stated at his regular press briefing that “You can protest” as long as you follow social distancing guidelines.4
3 Doha Madani, “Rally for Black trans lives draws enormous crowd in Brooklyn,” NBCNews.com, June 14, 2020, https://www.nbcnews.com/feature/nbc-out/rally-black-trans-lives-draws-packedcrowd-brooklyn-museum-plaza-n1231040.
4 New York Governor Cuomo Holds Briefing, NBC News, June 14, 2020 (14:08), https://www.youtube.com/watch?v=O9bvSFzqfl0.
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That the general gathering-size limits are still in place does not mean an unwritten exemption for mass protests is irrelevant. Courts have recognized that de facto exemptions qualify as individualized exemptions and undermine a policy’s general applicability. See, e.g., Litzman v. New York City Police Dep’t, 2013 WL 6049066, at *3 (S.D.N.Y. Nov. 14, 2013) (holding that de facto exemption to beard limitation policy undermined policy’s constitutionality); see also Ward v. Polite, 667 F.3d 727, 739 (6th Cir. 2012) (“What poses a problem is not the adoption of an antidiscrimination policy; it is the implementation of the policy, permitting secular exemptions but not religious ones and failing to apply the policy in an even-handed, much less a faith-neutral manner to [Plaintiff].”)
Additionally, it goes without saying that the city Defendant’s newly minted “public safety” rationale for allowing the protests is wholly inconsistent with Mayor de Blasio’s recent public statements. In particular, Mayor de Blasio recently said that mass protests against racism are allowed, while religious services are not, because the former involve “an entire nation simultaneously grappling with an extraordinary crisis seeded in 400 years of American racism[,] . . . [and] it’s about a . . . deep American crisis[,] . . . [and] [t]his is a powerful, painful historical moment.” (V. Comp. Ex. P.) That’s a gratuitous value judgment in favor of the protests, not an allowance out of concern for public safety, contrived after the fact with a litigation motive that is plainly apparent: to provide cover for both the Mayor and the Governor’s expedient exemptions from their obviously not generally applicable rule.
But even taking the public safety rationale at face value, exemptions for public safety, good though they may be, ultimately mean that the gathering limitations “regulate[] religious conduct while failing to regulate secular conduct that is at least as harmful to the legitimate government interests purportedly justifying it,” thus rendering the policy “substantially underinclusive” and,
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therefore, non-generally applicable. Central Rabbinical Congress of U.S. & Canada, 763 F.3d at 197. Indeed, as then-Judge Alito once opined for the Third Circuit, an internal police-department policy forbidding police officers from wearing beards was non-generally applicable to the extent it exempted growing a beard for medical reasons. Fraternal Order of Police Newark Lodge No. 12 v. City of Newark, 170 F.3d 359 (3rd Cir. 1999) Good though a medical exemption may be, it undermined the department’s interest in police uniformity and thus required that a limitation on growing religious beards must undergo strict scrutiny. Id. at 365-366 (stating also that “when the government makes a value judgment in favor of secular motivations, but not religious motivations, the government’s actions must survive heightened scrutiny”). The same is true here, where the government has made a value judgment favoring mass protests (whether for historical, public safety, or any other reasons) over religious gatherings and must therefore survive strict scrutiny.5
The city Defendant further argues “one key difference” between religious services and protests is that the latter occur outdoors. (City’s Br. at p. 7, n.4.) But this argument completely overlooks the “Open Your Lobby” campaign discussed in Plaintiff’s opening memo. (Pl.’s TRO/PI Br. at p. 12.) This movement involves theaters, concert halls, and other similar entities across the state opening their lobbies to protestors to rest, charge phone batteries, snack, etc., without any limitations on gathering sizes, and with express instructions to not let police in. (Pl.’s TRO/PI Br. at 12.) The city Defendant cites no evidence that these activities fall outside Defendants’
5 For this reason Plaintiffs disagree with last week’s decision in Calvary Chapel v. Sisolak distinguishing outdoor protests from religious services on the rationale that the former are allowed only because “enforcement could result in greater harm than that sought to be avoided by the Directive.” Calvary Chapel, 2020 U.S. Dist. LEXIS 103234 at *12 (D. Nev. June 10, 2020). But in New York the allowance for mass protests is not simply a “choice between which regulations or laws shall be enforced,” id., but an affirmative exemption undermining the general applicability of the gathering-size policies. Thus, the argument collapses into the aforementioned argument that exemptions for even good secular reasons, but which nonetheless undermine the government’s interest in slowing COVID-19, render the policy non-generally applicable.
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exemptions for mass protests. Critically, no Defendant explains why outdoor religious services are not similarly situated to the protests and thus deserving of an exemption from the 10-person rule, which still applies outdoors even in Phase 3 regions like the North Country. Indeed, all Plaintiffs in this case are willing and able to have outdoor religious services and thus should be free of the 10-person limit restricting their ability to do so. But see, Mayerfeld Declaration at ¶¶ 3-5 (respecting Sabbath services versus daily prayer services).
3. Neutrality: The state Defendants argue the gathering restrictions are neutral because in the early stages of the spread of COVID-19 in New York, religious gatherings were allowed up to 50 people for in-person gatherings while other businesses, entities, and schools were required to close. (State’s Br. at pp. 20-21.) But, perhaps unsurprisingly, they do not mention Mayor de Blasio’s tweet and threats directed exclusively at the Jewish community. (V. Compl. ¶¶53-54.) They also fail to acknowledge the Executive Order guidelines (a) specifically singling out “congregate services” for unique prohibitions and warnings, (V. Compl. ¶¶51-52), (b) imposing a 25% of capacity limit on indoor services in the North Country that specifically singles out religious services for disparate treatment relative to essential businesses and activities authorized in Defendants’ original orders and subject to no limitations on percent of capacity (V. Comp. ¶36); and (c) a more favorable capacity limit of 50% for other favored businesses—double that permitted for religion—in New York’s phased-in reopening plan. (Kerwin Dec., ECF No. 17, ¶¶25, 30.)
In addition, the blatantly arbitrary nature of the restrictions on religious gatherings reveals a lack of neutrality. At his press briefing last weekend, for example, Governor Cuomo stated out of one side of his mouth that “[i]f you have large gatherings of people who are not socially distanced, who are not wearing masks, you will have an increased spread of the virus,” (Cuomo Press Briefing Transcript, Ex. A at p. 26) (emphasis added), and out of the other side that as to the
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whether the virus has spread as a result of the mass protests, “[w]e don’t know what happened at the protests and we’re still waiting to find out.” (Id. at p. 33.) Meanwhile, there is evidence that New York City officials tasked with tracing those infected with COVID 19 have been ordered to refrain from asking residents whether attended a Black Lives Matters rally, which could of course undermine the expedient exemption for these officially favored rallies.6 At the same time, New York City officials are welding shut gates at a park in a Jewish neighborhood ostensibly to prevent children from playing outdoors and possibly spreading the virus.7
This type of bald favoritism—bending over backwards to protect mass protests while obstinately maintaining that even socially-distant religious gatherings will certainly cause harm— lacks any basis in scientific evidence and betrays a lack of neutrality toward religion. Strict scrutiny should apply for this reason, too.
C. Free Speech, Freedom of Assembly, and Expressive Association. Plaintiffs concede the state Defendants’ point that the right of expressive association is not necessarily analyzed in unison with the rights of free speech and assembly. (State’s Br. at p. 2.) But it remains true that the right of peaceable assembly is a “cognate” right with the freedom of speech and can be analyzed together therewith. Johnson v. Perry, 859 F.3d 156, 165 (2d Cir. 2017). To that end, the state Defendants’ one-paragraph free speech analysis completely omits any reference to the Supreme Court’s decision in Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015), which made crystal clear that a regulation of speech based on its function or purpose is content
6 Eric A. Blair, “COVID-19 Tracers in NYC Ordered Not Ask Those Who Test Positive If They Attend Protests,” Gateway Pundit, June 15, 2020, https://www.thegatewaypundit.com/2020/06/covid-19-tracers-nyc-will-not-ask-test-positiveattended-protests/. 7 Breitbart, “Watch: Orthodox Jews Cut Open Bill De Blasio’s Locked Parks,” June 15, 2020, https://www.breitbart.com/faith/2020/06/15/watch-orthodox-jews-cut-open-bill-de-blasioslocked-parks/.
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based and subject to strict scrutiny. (State’s Br. at p. 14.) Nor does it mention McCullen v. Coakley, 573 U.S. 464, 470 (2014), which clarified that if a regulation of speech requires “enforcement authorities to examine the content of the message,” then it is content-based. As Plaintiffs explained in their opening memo, both of these principles apply here and render the gathering limits contentbased and subject to strict scrutiny. (Pl.’s TRO/PI Br. at pp. 19-20.)
The city Defendant invokes two recent cases, Geller v. de Blasio, 2020 WL 2520711 (May 18, 2020), and Butler v. City of New York, 20-cv-4067 (S.D.N.Y. June 5, 2020) rejecting free speech challenges on behalf of non-Black-Lives-Matters protest activity. But only one of these cases was decided after the mass protests against racism began, and there is no indication in the court transcript the Defendant provides that the court closely evaluated the application of Reed and McCullen. (Peroti Dec., ECF No. 19, Ex. 4.) The city Defendant also cites numerous other cases in other states rejecting free speech and assembly challenges during COVID-19 lockdowns. (State’s Br. at p. 4.) But the latest of these decisions was May 20, 2020, still five days before George Floyd’s tragic deaths and the mass protests that New York and every major city in the United States allowed as a result. (Id.) But exempting the latter protest or a Black Trans Lives Matter protest at the Brooklyn Museum, but not other protests or religious mass gatherings, obviously involves a content-based exemption triggering strict scrutiny.
D. State Law Claims Notably, the state Defendants make only an oblique reference to Eleventh Amendment immunity, (State’s Br. at p. 19) without acknowledging that “the Eleventh Amendment grants the State a legal power to assert a sovereign immunity defense should it choose to do so,” and that “[t]he State can waive the defense.” Wisconsin Dep’t of Corr. v. Schacht, 524 U.S. 381, 389 (1998). The state Defendants have done just that here by including only an oblique reference to the rule and failing to develop any argument that Eleventh Amendment immunity applies. See Norton v.
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Sam’s Club, 145 F.3d 114, 117 (2d Cir. 1998) (“Issues not sufficiently argued in the briefs are considered waived.”).
Tellingly, the state Defendants never rebut Plaintiffs’ argument that New York Executive Law § 29-a of Article 2-B of the Executive Law only authorizes the Governor to suspend law, not unilaterally create it. The state never once cites or wrestles with this statute despite it being the basis of Plaintiffs’ claim. (State’s Br. at pp. 20-21.) The state effectively concedes Governor Cuomo’s lack of authority to impose gathering restrictions on churches under Executive Law § Article 29-a. The state Defendants then hinge their rebuttal to Plaintiffs’ separation-of-powers claim on their belief that the Governor is authorized by state law (again without dealing with Executive Law § 29-a). Thus their arguments collapse in on one another and extinguish the Governor’s longstanding position that Executive Law § 29-a authorizes him to unilaterally impose restrictions on religious services. II. IRREPARABLE HARM
The state Defendants argue Plaintiffs have shown no irreparable harm because the gathering limits merely require them to alter the “manner in which they may exercise” their rights, rather than outright prohibiting them from exercising their rights. Here, first of all, the state Defendants virtually stipulate they are burdening plaintiffs’ religion by compelling them to change the manner in which they worship. They have thus conceded that strict scrutiny is required.
At best, Defendants are begging the question. Plaintiffs have sincerely held religious beliefs counseling congregate worship with and for their flock, fellow congregants, and family. The gathering limits outright prohibit them from doing so consistent with those beliefs, and the State has no place telling Plaintiffs what actually suffices for realizing them. The state Defendants criticize Plaintiffs for not submitting any declarations demonstrating how they have been hindered. (State’s Br. at pp. 24-25.) But Plaintiffs filed a verified complaint, with each plaintiff swearing
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under oath and penalty of perjury that the many particular facts stated therein are true, including, as discussed above, how the gathering limits prevent them from ministering to their flock, from attending synagogue when 10 men have already assembled, and from attending synagogue with their family in accord with their parental duty and desire for companionship. The gathering limits have thus directly limited Plaintiffs’ First Amendment rights and clearly inflicted irreparable harm. III. BALANCE OF EQUITIES AND PUBLIC INTEREST
Here the balance tips decidedly in Plaintiffs’ favor, and a TRO and PI would serve the public interest. Defendants acknowledge the virus’s rate of transmission is well below 1.0. (Hutton Dec., ECF No. 20, ¶28.) And Governor Cuomo acknowledges there has been no known spike from allowing mass protests against racism. (Ex. A at 33.) (See also Delgado Dec., ECF No. 2, Ex. 1 at ¶17 (noting it has been more than 10 days since the first public protest and by now a surge in cases would have triggered increased hospitalizations and an increase in percentage tests positive, which has not occurred thus far in New York City).) Thus, Defendants will suffer no real harm by granting temporary and preliminary relief to Plaintiffs. And such relief would secure critical First Amendment rights, which is always in the public interest. (Pl. TRO/PI Br. at p. 24.) Thus a TRO and PI should issue. IV. RELIEF SOUGHT
The state Defendants observe that Plaintiffs’ prayer for relief requests that Defendants be restrained and enjoined from enforcing any limits at all on the size of Plaintiffs’ religious gatherings, or, in the alternative, from enforcing any gathering limits which are “greater than Defendants have imposed on essential retail businesses and the mass demonstrations.” (State’s Br. p. 2) (V. Compl. at p. 47.) Plaintiffs clarify here that they also requested “[s]uch other and further relief as this Court deems just and proper.” (V. Comp. at p. 48.) Plaintiffs do maintain that there should be no gathering limits on their religious services whether indoors or outdoors, as long as
15

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they engage in proper social distancing and hygiene practices in accordance with the recommendations of Dr. Delgado. (Delgado Dec., ECF No. 2, Ex. 1 at ¶53.) Nor should they be required to wear masks as long as they maintain social distancing. Both of these are consistent with exemptions for essential businesses and mass protests. (See V. Compl. ¶36; State’s Br. at p. 3, n.2.)
However, if this Court does not view Plaintiffs’ indoor religious services as similarly situated to essential businesses, Plaintiffs believe they are entitled to the same exemption as nonessential businesses allowing up to 50% of building capacity for indoor services. (See, e.g., Hutton Dec., ECF No. 20, ¶¶46, 47.) This would materially reduce the burden on Plaintiffs Soos and Stamos in the North Country, allowing them to realistically minister to their entire flock, and it would effectively allow Plaintiffs Schonbrun, Perr, and Mayerfeld to attend synagogue when not part of the minyan and with their families.
Put simply, Plaintiffs seek no gathering-size limits on outdoor religious services8 and no gathering-size limits on indoor religious services. But if they must accept limits on indoor services, 50% of building capacity would be acceptable and accomplish satisfactory relief. And, as noted, they would follow all of the social distancing recommendations set forth in Dr. Delgado’s declaration. (Delgado Dec., ECF No. 2, Ex. 1 at ¶53.)
CONCLUSION For the foregoing reasons, this Court should grant Plaintiffs’ motion for a temporary restraining order and preliminary injunction.
8 This would be consistent with New Jersey’s new exemption eliminating all gathering size restrictions on outdoor religious services, as enshrined in New Jersey Executive Order 152(2)(f). (Ex. B at pp. 8-9.).
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Respectfully submitted, s//Christopher A. Ferrara ____________________________ CHRISTOPHER A. FERRARA, ESQ. (Bar No. 51198) 148-29 Cross Island Parkway Whitestone, Queens, New York 11357 Telephone: (718) 357-1040 cferrara@thomasmoresociety.org Special Counsel to the Thomas More Society Counsel for Plaintiffs
/s/ Michael G. McHale Michael G. McHale* 10506 Burt Cir. Ste. 110 Omaha, NE 68114 402-501-8586 mmchale@thomasmoresociety.org Counsel to the Thomas More Society Counsel for Plaintiffs *Application for Full Admission Pending
17

 Case 1:20-cv-00651-GLS-DJS Document 31 Filed 06/22/20 Page 1 of 2

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK ----------------------------------------------------------------------- x

REV. STEVEN SOOS, REV. NICHOLAS STAMOS, DANIEL SCHONBURN, ELCHANAN PERR, and MAYER MAYERFELD,
Plaintiffs,
-against-

DECLARATION OF ELLEN PARODI
20-CV-00651

ANDREW M. CUOMO, Governor of the State of New York, in his official capacity, LETITIA JAMES, Attorney General of the State of New York in her official capacity, and BILL DE BLASIO, Mayor of the City of New York, in his official capacity,

Defendants.

----------------------------------------------------------------------- x

ELLEN PARODI, declares pursuant to 28 U.S.C. § 1746, under penalty of perjury, that the following is true and correct:
1. I am an Assistant Corporation Counsel in the office of James E. Johnson, Corporation Counsel of the City of New York, attorney for Defendant Bill De Blasio, Mayor of the City of New York. I am familiar with the facts stated below and submit this declaration to place on the record relevant documents in support of Defendant Bill De Blasio’s Supplemental Memorandum of Law in Opposition to Plaintiffs’ Motion for a Temporary Restraining Order and Preliminary Injunction.
2. Attached as Exhibit 1 is a true and correct copy of the transcript of the June 17, 2020 oral argument in the above-referenced action.
3. Attached as Exhibit 2 is a true and correct copy of New York State Executive Order No. 202.42, entitled “Continuing Temporary Suspension and Modification of Laws Relating to the Disaster Emergency,” signed by Governor Andrew M. Cuomo on June 15,

Case 1:20-cv-00651-GLS-DJS Document 31 Filed 06/22/20 Page 2 of 2

2020;

also

available

at

https://www.governor.ny.gov/sites/governor.ny.gov/files/atoms/files/EO_202.42.pdf (last visited

June 19, 2020).

4. Attached as Exhibit 3 is a true and correct copy of the Centers for Disease

Control and Prevention guidance entitled “Recommendations for Cloth Face Covers,” dated

April 3, 2020, also available at https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-

sick/cloth-face-cover.html (last visited June 22, 2020).

5. Attached as Exhibit 4 is a true and correct copy of New York State

Executive Order No. 202.17, entitled “Continuing Temporary Suspension and Modification of

Laws Relating to the Disaster Emergency,” signed by Governor Andrew M. Cuomo on April 15,

2020;

also

available

at

https://www.governor.ny.gov/sites/governor.ny.gov/files/atoms/files/EO_202.17.pdf (last visited

June 22, 2020).

6. Attached as Exhibit 5 is a true and correct copy of “Governor Cuomo

Updates New Yorkers on State’s Progress During COVID-19 Pandemic,” June 21, 2020; also

available at https://www.governor.ny.gov/news/governor-cuomo-updates-new-yorkers-state-s-

progress-during-covid-19-pandemic (last visited June 22, 2020).

Dated:

New York, New York June 22, 2020

_____/S/______________________ Ellen Parodi Assistant Corporation Counsel (admitted pro hac vice)

 Case 1:20-cv-00651-GLS-DJS Document 32 Filed 06/22/20 Page 1 of 13

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF NEW YORK

REV. STEVEN SOOS,

)

)

REV. NICHOLAS STAMOS,

)

)

DANIEL SCHONBRUN,

)

)

ELCHANAN PERR and

)

)

MAYER MAYERFELD

)

)

Plaintiffs,

)

v.

)

)

ANDREW M. CUOMO, Governor of the )

State of New York, in his official capacity, )

)

LETITIA JAMES, Attorney General of the )

State of New York in her official capacity, )

and

)

)

BILL DE BLASIO, Mayor of the City )

of New York, in his official capacity,

)

)

Defendants.

)

Case No. 1:20-CV-0651 (GLS/DJS)

SUPPLEMENTAL MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS’ MOTION FOR A TRO/PRELIMINARY INJUNCTION

Case 1:20-cv-00651-GLS-DJS Document 32 Filed 06/22/20 Page 2 of 13 TABLE OF CONTENTS
TABLE OF AUTHORITIES .......................................................................................................... ii PRELIMINARY STATEMENT .................................................................................................... 1 DISCUSSION ................................................................................................................................. 4
I. Defendant de Blasio Has Independent Authority to Restrict Plaintiffs’ Religious Activities ..................................................................................................................................... 4 II. Defendants Have Exempted Mass Protests Against Racism .............................................. 6 III. The Absurdities of Defendants’ Scheme Negate Neutrality and General Applicability .... 7 CONCLUSION............................................................................................................................. 10
i

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TABLE OF AUTHORITIES
Cases Berean Baptist Church v. Cooper, 2020 WL 2514313................................................................... 6 Bus. Leaders in Christ v. Univ. of Iowa, 360 F. Supp. 885, 899 (S.D. Iowa 2019)........................ 7 Cassell v. Snyders, 2020 WL 2112374 (N.D. Ill. May 3, 2020)................................................... 10 Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 533 (1993).................. 6 Elim Romanian Pentecostal Church v. Pritzker, -- F.3d --, 2020 WL 3249062 (7th Cir. June 16,
2020) ........................................................................................................................................... 4 Ex Parte Young, 209 U.S. 123 (1908) ............................................................................................ 6 Litzman v. New York City Police Dep’t, 2013 WL 6049066, at *3 (S.D.N.Y. Nov. 14, 2013)...... 7 Monell v. Dep’t of Social Serv., 436 U.S. 658 (1978) .................................................................... 6 S.C. Wildlife Fed’n v. Limehouse, 549 F.3d 324, 333 (4th Cir. 2008) ........................................... 6 South Bay United Pentecostal Church v. Newsom, 140 S. Ct. 1613 (May 29, 2020) .................... 4 Spell v. Edwards, -- F.3d. --, 2020 WL 3287239 at *4, 12 (5th Cir. June 18, 2020) (Ho, J.,
concurring) .................................................................................................................................. 3 Ward v. Polite, 667 F.3d 727, 736 (6th Cir. 2012) ......................................................................... 7
ii

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PRELIMINARY STATEMENT At the show cause hearing on June 17, defendants made several admissions that seal plaintiffs’ entitlement to a temporary restraining order and preliminary injunction protecting their fundamental right to worship.1 First, defendants Cuomo and James acknowledged that local law enforcement is free not to enforce the gathering limitations in Cuomo’s executive orders when it comes to mass gatherings they deem permissible according to the “best interests” of their communities. (Tr. p. 13:2-5.) These selectively permitted mass gatherings have thus far included demonstrations against racism, Black Lives Matter demonstrations, Black Trans Lives Matter demonstrations, and Juneteenth celebrations, marking the “23rd straight day of protests in New York City.”2 This admission confirms the independent authority of defendant Mayor de Blasio to restrict Plaintiffs’ religious rights in New York City under Cuomo’s orders while freely allowing the mass gatherings he supports and in which he has participated because he considers them more important than religious services. See Verif. Comp. ¶ 70. It also reveals that in addition to the exemptions discussed in Plaintiffs’ earlier memos, the executive orders contain a mechanism of individualized exemptions
1 As of today, June 22, 2020, Defendants have authorized non-essential outdoor gatherings up to 25 people in Phase 3 regions, including the North Country where Plaintiffs Soos and Stamos reside. See EO 202.42. As of the same date, New York City, where the three remaining plaintiffs reside, has entered Phase 2 allowing houses of worship a mere 25% of building capacity—an arbitrary limitation to which houses of worship alone are subject, while all other operating structures at 100% or 50% of capacity. See EO 202.38. Worse, New York City otherwise remains subject to a 10-person limit on outdoor “non-essential gatherings” while favored protesters march and party in the thousands. See EO 202.33 and Declarations of Dr. Robert Onder and Prof. John Rao, Exhibits A and B, respectively. 2 See https://www.ny1.com/nyc/all-boroughs/news/2020/06/19/juneteenth-marches-rallies-andevents-across-nyc: “Juneteenth to Be an Official Holiday as Protesters Remember the Past, Fight for the Future,” June 19, 2020, Spectrum News, NY 1.

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based on defendant de Blasio’s (or other local authority’s) view of community “best interests”—a secular justification—without extending a similar individualized exemption for religious hardship. Strict scrutiny, which this scheme cannot survive, is thus unquestionably triggered.
Second, defendant de Blasio made a two-fold admission (consistent with its opposition memo) that it has not enforced the gathering restrictions against “peaceful” protestors out of concern for public safety, and that religious gatherings are not “comparable” because they do not pose the same public safety threat. (Hearing Tr. p. 20:4-8, 21:18-22:12.) But this again reveals that the de Blasio refrains from enforcing Cuomo’s gathering limits for a secular reason (public safety) but not for less favored religious reasons, when religious gatherings do no more harm to the government’s interest in “slowing the spread “of COVID 19—indeed, less harm. (Delgado Dec., ECF No. 2, Ex. 1, ¶32; Onder Declaration, Exhibit A, ¶¶ 19-21).3 It also bizarrely indicates that if plaintiffs’ religious activities became sufficiently unruly and threatening, then they could be permitted. That is circular nonsense, as it declares that precisely an attack on “public safety” is needed for an exemption to congregate for reasons of “public safety.”
Developments since the hearing further solidify Plaintiffs’ entitlement to relief. The first and only Court of Appeals judge to discuss gathering limits on worship versus exemptions for mass protests has stated the obvious: “If officials are now exempting protestors, how can they justify continuing to restrict worshippers? The answer is that they can’t. Government does not have
3 It also betrays a misapprehension of relevant “comparability,” which is whether the exempted or permitted activity undermines the government’s interests justifying house-of-worship restrictions (i.e., stopping the spread of COVID-19) to the same or greater degree than socially distanced religious gatherings—not whether religious services pose the same threat to public safety. See Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 543 (1993) (holding that city ordinance was non-generally applicable because it “fail[ed] to prohibit nonreligious conduct that endangers” interests in protecting public health and preventing animal cruelty “in a similar or greater degree than Santeria sacrifice does”).
2

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carte blanche, even in a pandemic, to pick and choose which First Amendment rights are ‘open’
and which remain ‘closed.’” Spell v. Edwards, -- F.3d. --, 2020 WL 3287239 at *4, 12 (5th Cir.
June 18, 2020) (Ho, J., concurring) (appeal mooted because gathering limits for worship
abandoned).
Meanwhile, Governor Cuomo signed an executive order making “Juneteenth” (June 19th)
a state holiday celebrating the end of slavery, encouraging New Yorkers to “reflect on all the changes we still need to make to create a more fair, just and equal society.”4 It was thus no surprise
when “thousands of New Yorkers participated in protests, marches, and celebrations to mark Juneteenth on Friday,”5 while Plaintiffs’ religious gatherings remained tightly restricted.
As the pandemic wanes, defendants will raise the specter of rising COVID-19 “cases” in
other states—meaning asymptomatic or mildly symptomatic infections with no corresponding rise
in deaths or hospitalizations. See Dr. Onder Dec., Exhibit A at ¶¶ 9-12. They may also speculate
about a potential “spike” of infections (but not deaths or hospitalizations) in New York. But on the
same date he launched a wave of mass gatherings in the streets for Juneteenth, Cuomo himself
dismissed these fears: “[B]y the time the protest happened, we were down at 1% infection rate.
4 Danielle Garrand, “Cuomo declares Juneteenth a holiday for New York state employees,” CBS News, June 17, 2020, https://www.cbsnews.com/news/juneteenth-new-york-cuomo-declaresholiday-for-state-employees/. Mayor de Blasio signed a similar executive order with an effective date of June 19, 2021. See Michael Gartland, “NYC Mayor de Blasio declares Juneteenth city holiday – to go into effect next year,” New York Daily News, June 19, 2020, https://www.nydailynews.com/news/politics/ny-de-blasio-juneteenth-race-reconciliationcommission-20200619-xudlmcnjfrajxni4udv4naxgpq-story.html. 5 Spectrum News Staff and Debora Fougere, “Juneteenth to Be an Official NYC Holiday as Protestors Remember the Past, Fight for the Future,” Spectrum News, June 19, 2020, https://www.ny1.com/nyc/all-boroughs/news/2020/06/19/juneteenth-marches-rallies-and-eventsacross-nyc. See also Declaration of Professor John C. Rao (testifying that that on June 19, 2020, he witnessed from his home in Greenwich Village a “Juneteenth” “march of thousands of people up Sixth Avenue, packed together without the least ‘social distancing.’ The vast crowd was accompanied—front, back and middle, by police escorts on motorcycles, bicycles and in cars.”)
3

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We were so low by that point that I’m hoping we got lucky that yes, they came together, and they violated social distancing, but they weren’t infected anymore.” (emphasis added). See Exhibit D, p. 2. If thousands of protesters are presumed to be non-infected at this point in the waning pandemic, why not worshipers?
Defendants’ exemptions (whether de facto or de jure) for mass gatherings—to protest racism, for Black Lives Matter, Black Trans Lives Matter, Juneteenth, or any other cause they favor—remove their restrictions on religious gatherings from the putative umbrella of Chief Justice Roberts’ non-binding concurrence in South Bay United Pentecostal Church v. Newsom, 140 S. Ct. 1613 (May 29, 2020). Whether called “exemptions,” “temporary relaxations” or some other euphemism, the exemptions allow precisely what Roberts described as “large groups of people gather[ing] in close proximity for extended periods of time.” Id. at 1613.6
In short, nothing stands in the way of the relief requested. DISCUSSION
Plaintiffs incorporate by reference the arguments from their previous papers (ECF No. 2-4 and ECF No. 25) demonstrating the requisites for injunctive relief. Plaintiffs now supplement those arguments with the following three points: I. Defendant de Blasio Has Independent Authority to Restrict Plaintiffs’ Religious
Activities In their opposition memo and during the Order to Show Cause hearing, defendant de Blasio denied that he has independent authority to impose gathering limits and is thus not a proper party
6 Not to the contrary is Elim Romanian Pentecostal Church v. Pritzker, -- F.3d --, 2020 WL 3249062 (7th Cir. June 16, 2020). While the Court relied on Chief Justice Roberts’ non-binding concurrence in South Bay United Pentecostal Church v. Newsom, 140 S. Ct. 1613 (May 29, 2020), it did not consider what was not before Justice Roberts: for mass protests that radically undermine the entire “public health” rationale on which defendants rely.
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defendant. See City’s Opposition Memo, ECF No. 19-7 at p. 2; Hearing Tr. at 8:9-24. But that is manifestly untrue. De Blasio must be enjoined in his official capacity for plaintiffs’ to obtain relief.
First, de Blasio has declared his own state of emergency in New York City and has enacted a series of COVID-19-related local orders pursuant to his authority under “the New York City Charter, the Administrative Code of the City of New York, and the common law authority to protect the public in the event of an emergency.” See Exhibit C, EO 125. Thus, if defendants Cuomo and James are enjoined, de Blasio would still be able to impose his own restrictions.
The City argues that Cuomo’s executive orders prohibit anything of the sort. But although an outdated order (202.3) prohibited local governments from enacting local orders “inconsistent with, conflicting with or superseding” a state executive order, later executive orders (202.5 and 202.19)7 merely require “approval of the State Department of Health” (202.5) or “consul[tation]with the state department of health” (202.19). See ECF No. 1-1 at p. 47. Nothing precludes the City from enacting restrictions more severe than Cuomo’s.
In any case, at the hearing counsel for Cuomo and James represented multiple times that enforcement of Cuomo’s orders is up to local officials. See Hearing Tr. at 10:18-19; 12:2-3; 12:1113; 13:2-5; 18:7-8. And the City’s own current emergency order incorporates Cuomo’s executive orders, including the restrictions on non-essential gatherings, and directs New York City agencies to enforce them. See Exhibit C at §§2, 3. This easily suffices for purposes of Monell liability, see Monell v. Dep’t of Social Serv., 436 U.S. 658 (1978). It also requires, under Ex Parte Young, 209 U.S. 123 (1908), that Mayor de Blasio remain a defendant given his “proximity to and responsibility for” the challenged state action. See Berean Baptist Church v. Cooper, 2020 WL
7See, https://www.governor.ny.gov/news/no-2025-continuing-temporary-suspension-andmodification-laws-relating-disaster-emergency; and https://www.governor.ny.gov/news/no20219-continuing-temporary-suspension-and-modification-laws-relating-disaster-emergency
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2514313 at *11 n.3 (quoting S.C. Wildlife Fed’n v. Limehouse, 549 F.3d 324, 333 (4th Cir. 2008)). Thus, Mayor de Blasio must also be enjoined. II. Defendants Have Exempted Mass Protests Against Racism
At the hearing, defendants insisted they have not actually exempted mass protests against racism from gathering restrictions. But the cases clearly establish that refusing to prohibit activity that otherwise violates a facially neutral and generally applicable rule is a de facto exemption that can undermine neutrality and general applicability. That is certainly the scenario here. What is more, defendants have not only tolerated but positively approved and even (in de Blasio’s case) participated in what they have exempted from their regime of social control.
The U.S. Supreme Court has recognized that a law’s implementation bears on its neutrality and general applicability for purposes of the Free Exercise Clause. In Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 533 (1993), the Court pointed to Fowler v. Rhode Island, 345 U.S. 67, 69 (1953), which invalidated a municipal ordinance that was “interpreted to prohibit preaching in a public park by a Jehovah’s Witness but to permit preaching during the course of a Catholic mass or Protestant church service” based on an admission of the government attorney at oral argument. Accordingly, in Lukumi the Court held that a statute prohibiting “unnecessary” killing of animals was not generally applicable because “[k]illings for religious reasons are deemed unnecessary, whereas most other killings fall outside the prohibition” according to “the interpretation given to the ordinance by [the city] and the Florida attorney general.” Id. at 537 (emphasis added).
Numerous courts have held that de facto exemptions can undermine a policy’s neutrality and general applicability. See, e.g., Bus. Leaders in Christ v. Univ. of Iowa, 360 F. Supp. 885, 899 (S.D. Iowa 2019) (nondiscrimination policy for student groups not generally applicable where University allowed ad hoc exemptions for “educational and social” but not religious reasons);
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Litzman v. New York City Police Dep’t, 2013 WL 6049066, at *3 (S.D.N.Y. Nov. 14, 2013) (onemillimeter-beard policy rendered non-neutral and not generally applicable due to ad hoc exceptions for religious holidays, weddings, funerals and “because the NYPD does not always enforce its personal appearance standards”); Ward v. Polite, 667 F.3d 727, 736 (6th Cir. 2012) (de facto exemptions from non-discrimination policy in counseling for non-religious reasons without permitting religious exemptions rendered policy non-neutral and not generally applicable).
Here, each defendant has declared publicly that implementation of the gathering-size policy does not apply to the mass protests. A compilation of their many public statements in support of the protest exemption is Exhibit D to this Memorandum. Not to the contrary is Governor Cuomo’s statement on June 13 that “[y]ou don’t need to protest [anymore], you won,” because very next day, on June 14, he said “You can protest.” Id. Moreover, defendant de Blasio explicitly declared that protest gatherings take precedence over religious ones because of “400 years of American racism, [which] I’m sorry, that is not the same question as the understandably aggrieved … devout religious person who wants to go back to services….” Id. and Verif. Comp. ¶ 70. And defendant Attorney General Letitia James said on June 12 with respect to the protests: “The right to peacefully protest is one of our most basic civil rights, and we are working without rest to ensure that right is protected and guarded.” Id. (emphasis added).
All of these statements privilege nonreligious reasons over religious reasons for noncompliance with the gathering limits. Again, strict scrutiny is undeniably triggered. III. The Absurdities of Defendants’ Scheme Negate Neutrality and General Applicability
The result of defendants’ blatant double standard is nothing less than a constitutional theater of the absurd. Their patchwork of ever-changing executive orders, guidelines, and de facto exemptions for mass protests—including an “Open Your Lobby” movement allowing protest-
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related gatherings in concert halls and theaters that are supposed to be closed until the hazy future of “Phase Four”8—reveals bureaucracy gone wild.
Start in the North Country. In a region that has reached “Phase 3,” Plaintiffs Soos and Cuomo are permitted to say indoor Mass for a congregation limited to 25% of building capacity. See EO 202.38. This is a completely arbitrary limit on worship. See Dr. Onder Dec., Exhibit A at ¶ 18. That means approximately 51 people in their Saint Therese Church in Nicholville. (V. Compl., ECF No. 1 at ¶ 84.) But in that same Phase 3 region, they are prohibited from saying Mass for more than 25 people outdoors. See EO 202.42. Obviously, allowing Plaintiffs to say Mass for twice as many people indoors as outdoors is simply irrational, especially as the rate of positive tests in plaintiffs’ St. Lawrence County has plummeted to a meager 0.28%. (Dr. Onder Dec., ¶16.)
Additionally, in a Phase 3 region like the North Country, restaurants may open for indoor dining up to 50% of capacity with tables six feet apart, but with 10 people per table allowed, who can dine without wearing masks while sitting closely together and even facing each other. See Exhibit F.9 The notion that worshipers at a New York City synagogue or a North Country church pose a greater risk of spreading COVID-19, even if they socially distance, than diners who are permitted to sit closely together at tables of ten, eating, talking and laughing in each other’s faces, is medical nonsense, not a rational public health policy. See Dr. Onder Declaration at ¶¶ 14-21.
Consider these additional absurdities in the regime defendants insist they must continue to impose on everyone whose gatherings they disfavor:
• As New York City enters “Phase 2” today—of no concern to thousands of marchers and partiers whose gatherings meet with official favor, see Rao Declaration, Exhibit B, ¶ 9—
8 See Exhibit E, spreadsheet of lobbies made available according to this para-protest movement in violation of the Executive Orders. 9Reopening New York, Food Service Guidelines for Employers and Employees, https://www.governor.ny.gov/sites/governor.ny.gov/files/atoms/files/Food_Services_Summary_ Guidelines.pdf (last visited June 22, 2020).
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workers whose “core function takes place within an office setting” must—laughably enough—quickly don an “acceptable face covering” whenever another worker happens to pass within six feet, even if this happens “unexpectedly.”10 Yet the same workers can engage in a mass protest against racism or slavery, packed onto a bridge or in a plaza, without enforcement of any mask requirement.11
• Defendant Cuomo has announced that starting on June 26, outdoor, socially distanced gatherings of up to 150 people will be allowed for graduations,12 without extending any similar permission to outdoor religious gatherings.
• Cuomo’s EO 202.37 authorizes indoor special education services for the summer term in school districts with no capacity limitation, without (of course) a similar allowance for indoor religious services, though both gatherings are comparable as courts recognize.13
Enough is enough. The ever-increasing absurdities of Defendants’ scheme show they can
no longer justify imposing disparate treatment on religious gatherings while allowing so many
other putatively similar activities for favored secular reasons. To quote Judge Ho once again:
The First Amendment does not allow our leaders to decide which rights to honor and which to ignore. In law, as in life, what’s good for the goose is good for the gander. In these troubled times, nothing should unify the American people more than the principle that freedom for me, but not for thee, has no place under our Constitution.
Spell, 2020 WL 3287239 at *6 (Ho, J., concurring).
10Reopening New York, Office-Based Work Guidelines for Employers and Employees, https://www.governor.ny.gov/sites/governor.ny.gov/files/atoms/files/OfficesSummaryGuidelines .pdf (last visited June 22, 2020).
11Spectrum News and Debora Fougere, supra n. 4 (see, e.g., post of Michael Herzenberg at 4:26 PM, June 19, 2020, showing a number of demonstrators not wearing masks)
12“Governor Announces Outdoor Graduations of up to 150 People Will Be Allowed Beginning June 26th,” New York State, June 7, 2020, https://on.ny.gov/311JGWN.
13 See, e.g., Cassell v. Snyders, 2020 WL 2112374 (N.D. Ill. May 3, 2020) (“education and worship are both activities where people sit together in an enclosed space to share a communal experience” (internal quotations omitted).
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Fear of a “second wave” or “spike” of COVID-19 cases is no excuse to continue imposing

disparate treatment on plaintiffs’ religious activities while streets and plazas are filled with

protesters and Juneteenth celebrants—with access to theater lobbies that are supposed to be closed.

Where Defendants have granted so many exemptions to similarly situated secular activities, they

must extend equal treatment to plaintiffs’ religious gatherings. That is the mandate of the First

Amendment of which this Court is first guardian.

CONCLUSION

For the foregoing reasons, this Court should grant Plaintiffs’ motion for a temporary

restraining order/preliminary injunction providing the following relief:

A. Completely eliminating any gathering limits on outdoor religious gatherings, as Governor Murphy of New Jersey did after he had created his own de facto exemption for George Floyd protests. (See Murphy Executive Order 152 previously filed herein).

B. Completely eliminating indoor gathering limits for religious gatherings in parity with the 100% occupancy allowed for favored “essential businesses,” day camps and special education classes or, alternatively, at least 50% occupancy in keeping with what is permitted for “non-essential” businesses and every other indoor activity allowed to continue under Phases Two and Three except religious activity, which alone is still arbitrarily confined to 25% occupancy.14

Respectfully submitted,

/s/ Michael G. McHale Michael G. McHale* 10506 Burt Cir. Ste. 110 Omaha, NE 68114 402-501-8586 mmchale@thomasmoresociety.org Counsel to the Thomas More Society Counsel for Plaintiffs

s//Christopher A. Ferrara (Bar No. 51198 148-29 Cross Island Parkway Whitestone, Queens, NY 11357 (718) 357-1040 Special Counsel-Thomas More Society cferrara@thomasmoresociety.org Counsel for Plaintiffs

14 See Exhibit G, “inverted pyramid” graphic illustrating singling out of religion alone for the 25% capacity limitation.
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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK

REV. STEVEN SOOS, REV. NICHOLAS STAMOS, DANIEL SCHONBRUN, ELCHANAN PERR, MAYER MAYERFELD,
Plaintiffs, v.
ANDREW M. CUOMO, Governor of the State of New York, in his official capacity, LETITIA JAMES, Attorney General of the State of New York in her official capacity, and BILL DE BLASIO, Mayor of the City of New York, in his official capacity,
Defendants.

20-CV-00651 GLS-DJS

PROPOSED SUPPLEMENTAL BRIEF OF PROSPECTIVE AMICUS CURIAE AHUVA KLEINMAN IN SUPPORT OF PLAINTIFFS

Ronald D. Coleman MANDELBAUM SALSBURG, P.C. 1270 Avenue of the Americas, Suite 1808 New York, New York 10020 212-776-1834 rcoleman@lawfirm.ms Attorneys for Amicus Curiae

Case 1:20-cv-00651-GLS-DJS Document 34 Filed 06/25/20 Page 2 of 5 TABLE OF CONTENTS
PRELIMINARY STATEMENT ................................................................................................. 1 I. PLAINTIFFS AND PROSPECTIVE AMICUS CURIAE AHUVA KLEINMAN ARE STILL ADVERSELY AFFECTED BY DEPRIVATION OF THEIR CONSTITUTIONAL RIGHTS BY DEFENDANTS’ LIMITATIONS ON CONGREGATE WORSHIP. .............. 1 CONCLUSION ............................................................................................................................. 2
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PRELIMINARY STATEMENT Prospective amicus curiae Mrs. Kleinman respectfully submits this proposed supplemental brief, pending the Court’s ruling on her motion to be heard in this matter as a friend of the Court, in response to in reply to Defendant Bill DeBlasio’s Supplemental Memorandum of Law in Opposition to Plaintiff’s Motion for a Temporary Restraining Order and Preliminary Injunction (the “DeBlasio Supplement”).
ARGUMENT I. PLAINTIFFS AND PROSPECTIVE AMICUS CURIAE AHUVA KLEINMAN
ARE STILL ADVERSELY AFFECTED BY DEPRIVATION OF THEIR CONSTITUTIONAL RIGHTS BY DEFENDANTS’ LIMITATIONS ON CONGREGATE WORSHIP. Defendant DeBlasio argues, in the DeBlasio Supplement, that because New York City has moved to Phase II, which permits synagogues to exceed the previous limitation of ten worshippers as long as they remain under the 25% capacity requirement set by the State, “There is no reason to believe that the vast majority of synagogues will not have sufficient capacity to allow a minyan plus some additional people while still under the 25% capacity requirement set by the State… Therefore, as the ten- person gathering limitation on indoor religious services is no longer in effect in the City, and the Phase 2 allowance of 25% capacity should resolve the NYC Plaintiffs’ alleged harm, their claim for injunctive relief should be denied.” But the DeBlasio Supplement does not tell the whole story. In fact, current New York State guidelines require six feet of distancing around each person, even during Phase II, which limit is extended to 12 feet for “singing activity.” See, “Religious and Funeral Services Summary Guidance” attached hereto as Exhibit A. Since intermittent singing by all congregants is a routine component of Orthodox Jewish prayer, especially on the Sabbath or during a wedding ceremony, the twelve-foot radius is effectively the
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real one for all Orthodox Jewish congregations. In light of the population and building density of New York City, under these requirements many synagogues would, contrary to the DeBlasio Supplement, not have sufficient room under these restrictions to allow more than ten people to worship spaced 12 feet apart. Phase II, therefore, provide little or no effective relief either with respect to the state guidelines in general, or with regard to the issues raised in Mrs. Kleinman’s the amicus brief in particular.
More specifically, using data generated through a standard social distance calculator such as the one provided by the State of Colorado (https://covid19.colorado.gov/safer-at-home/socialdistancing-calculator-for-indoor-and-outdoor-events), a synagogue would need approximately 1800 square feet to accommodate a mere eleven people suspected of possible singing under the guideline-imposed distance of 12 feet between individuals, assuming – conservatively – 15% of floor space as occupied by furniture. Consequently, the revised capacity allowance of 25% still imposes significant limits on the number of people who may attend worship services, especially in the very many smaller synagogues, once the social distancing requirement is understood, because of the “singing” restrictions, as 12 feet instead of six.
With respect to the issues raised by Mrs. Kleinman in her original proposed brief, therefore, what amounts essentially to a ban on women and children attending synagogue worship services is effectively still in place except with regard to the largest, and by far least common, synagogue sanctuaries. Her synagogue is actually just under 1800 square feet at 1750 square feet, and usually accommodates approximately 60 males and 10-20 females at Sabbath services. Not only would the “generous” new guidelines keep that ban in place per the above calculation, it cannot even be justified on public health grounds, because New York State has had one of the lowest relative percentages of COVID cases in the nation for weeks now and, along with New York City, allows
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a host of activities to occur, indoors and out, without respect to social distancing – activities that, unlike congregate worship, are not entitled to special protection under the First Amendment.
CONCLUSION For the reasons stated above, Amicus respectfully urge this Court to grant the Temporary Restraining Order requested in the Complaint.
MANDELBAUM SALSBURG, P.C.

Dated: June 25, 2020

___________________________ Ronald D. Coleman
1270 Avenue of the Americas, Suite 1808 New York, New York 10020 212-776-1834 rcoleman@lawfirm.ms Attorneys for Amicus Curiae

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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK
REV. STEVEN SOOS, REV. NICHOLAS STAMOS, DANIEL SCHONBRUN, ELCHANAN PERR and MAYER MAYFELD,
Plaintiffs,
-against-
ANDREW M. CUOMO, Governor of the State of New York, in his official capacity,
LETITIA JAMES, Attorney General of the State of New York in her official capacity, and
BILL DE BLASIO, Mayor of the City of New York, in his official capacity,
Defendants.

DECLARATION 20-CV-00651 (GTS)(DJS)

Adrienne J. Kerwin, on the date noted below and pursuant to § 1746 of title 28 of the United States Code, declares the following to be true and correct under penalty of perjury under the laws of the United States of America:
1. I am an Assistant Attorney General of counsel in this matter to Letitia James, Attorney General of the State of New York, attorney for defendants Governor Andrew M. Cuomo and Attorney General Letitia James (“State defendants”).

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2. I submit this declaration on behalf of the State defendants in further opposition to plaintiffs’ application for preliminary injunctive relief in the above-captioned action.
3. On June 11, 2020, plaintiffs filed an application for a temporary restraining order (“TRO”). Dkt. No. 7.
4. Following submissions on a very short schedule, the Court heard oral argument on that application on June 17, 2020. Dkt. at 6/17/2020.
5. During argument, the Court informed the parties that it intended to issue a ruling as to both the TRO and plaintiff’s motion for a preliminary injunction by Friday, June 26, 2020. Because defendants Governor Andrew M. Cuomo and Attorney General Letitia James (“the State defendants”) had not had sufficient opportunity to submit to the Court all information and argument relevant to plaintiffs’ motion for a preliminary injunction — and, as a result, filed a submission in opposition to the TRO application only — in the time allotted, Dkt. Nos. 17, 18, 20, the Court granted all parties until June 22, 2020 to supplement the record.
6. Since the June 15, 2020 submission by the State Defendants, the following Executive Orders were issued:
Exhibit 41: Executive Order No. 202.41 (“EO 202.41”); Exhibit 42: Executive Order No. 202.42 (“EO 202.42”); Exhibit 43: Executive Order No. 202.43 (“EO 202.43”); 7. EO 202.42 increased the gathering limitation in Phase 3 regions to 25 people. Exh. 42. 8. As of June 22, 2020, New York City has entered Phase 10. See https://forward.ny.gov/reopening-new-york-city
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9. For the court’s convenience, relevant decisions rendered after the State defendants’ June 15, 2020 submissions include: Elim Romanian Pentecostal Church v. Pritzker, Case No. 201811, 2020 U.S. App. LEXIS 18862 (7th Cir. June 16, 2020) (challenging 10-person gathering limit); Spell v. Edwards, Case No. 20-30358, 2020 U.S. App. LEXIS 19148 (5th Cir June 18, 2020) (challenging 10-person limit on church services); High Plains Harvest Church v. Polis, Case No. 20-cv-01480, 2020 U.S. Dist. LEXIS 105247 (D. Colo. June 16, 2020) (finding that plaintiffs failed to offer evidence into the record sufficient to show that the protests were comparable to the religious services that plaintiffs wished to hold) ; McCarthy v. Cuomo, Case No. 20-cv-2124, 2020 U.S. Dist. LEXIS 107195 (E.D.N.Y. June 18, 2020) (EOs are content neutral and satisfy intermediate scrutiny).
10. As discussed in the State defendants’ June 15, 2020 submissions, Dkt. Nos. 17, 18, 20, and those submitted herewith, the plaintiffs have failed to demonstrate that they are likely to succeed on the merits of their claims as to the indoor gathering limits applicable to the plaintiffs, and therefore any preliminary injunctive relief sought by the plaintiffs enjoining the enforcement of the indoor limitations should be denied.
11. Similarly, for the reasons discussed above, and in the State defendants’ June 15, 2020 submissions incorporated herein, Dkt. Nos. 17, 18, 20, plaintiffs’ application for temporary preliminary injunctive relief as to the applicable outdoor gathering limits should also be denied in its entirety.
WHEREFORE, for the reasons discussed in the June 15, 2020 submissions of the State defendants, and those discussed in the documents submitted herewith, the State defendants respectfully request that the court issue an order denying plaintiffs’ application for temporary
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preliminary injunctive relief in its entirety.
Dated: June 22, 2020 Wynantskill, New York

s/ Adrienne J. Kerwin ________________________
Adrienne J. Kerwin

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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK ________________________________ REV. STEVEN SOOS et al.,
Plaintiffs,

1:20-cv-651 (GLS/DJS)

v.

ANDREW M. CUOMO et al.,

Defendants.

________________________________

APPEARANCES:

OF COUNSEL:

FOR THE PLAINTIFFS: 148-29 Cross Island Parkway Whitestone, NY 11357

CHRISTOPHER A. FERRARA, ESQ.

10506 Burt Circle Ste 110 Omaha, NE 68114

MICHAEL McHALE, ESQ.

FOR THE DEFENDANTS: Andrew M. Cuomo & Letitia James HON. LETITIA JAMES New York State Attorney General The Capitol Albany, NY 12224

ADRIENNE J. KERWIN Assistant Attorney General

Bill de Blasio HON. JAMES E. JOHNSON Corporation Counsel of the City of New York New York City Law Department 100 Church Street New York, NY 10007

MELANIE SADOK ELLEN PARODI HILARY M. MELTZER Assistants Corporation Counsel

Case 1:20-cv-00651-GLS-DJS Document 35 Filed 06/26/20 Page 2 of 38

FOR THE PROSPECTIVE AMICUS CURIAE: Ahuva Kleinman Mandelbaum Salsburg PC 3 Becker Farm Road Roseland, NJ 07068

RONALD D. COLEMAN, ESQ.

Gary L. Sharpe Senior District Judge

MEMORANDUM-DECISION AND ORDER

I. Introduction

Pending is an application for preliminary injunctive relief filed by

plaintiffs Reverend Steven Soos, Reverend Nicholas Stamos, Daniel Schonbrun, Elchanan Perr, and Mayer Mayerfeld.1 (Dkt. Nos. 2, 7.) In

their most recent filing, plaintiffs seek an order restraining and enjoining

defendants Andrew M. Cuomo, Governor of the State of New York; Letitia

James, Attorney General of the State of New York; and Bill de Blasio,

Mayor of the City of New York: (1) from enforcing any gathering limits to

outdoor religious gatherings; and (2) from imposing any limitation on

indoor gathering . . . for religious gatherings in parity

1 Plaintiffs’ initially sought a temporary restraining order, but, at the conclusion of the return on that application, the court discussed with the parties the preferability of allowing them to supplement the record and argument, and address the application for preliminary injunctive relief without resort to a further evidentiary hearing; the court’s proposed course of action was acceptable to all the parties and obviates the need to consider the application for a temporary restraining order. (Dkt. No. 31, Attach. 1 at 38-49.)
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with the 100% occupancy allowed for favored “essential businesses,” day camps and special education classes, or, alternatively, at least 50% occupancy in keeping with what is permitted for “non-essential” businesses and every other indoor activity allowed to continue under Phases Two and Three except religious activity, which alone is still arbitrarily confined to 25% occupancy. (Dkt. No. 32 at 10.) For the reasons explained and to the extent described below, the application for a preliminary injunction is granted.
II. Background For the past several months, the United States, and, indeed, the entire world, has been suffering from a global pandemic brought about by COVID-19. The State of New York, and particularly the New York City metropolitan area, have been described as the “epicenter” of the pandemic. See New York Coronavirus Map and Case Count, N.Y. Times (last visited June 26, 2020), https://www.nytimes.com/interactive/2020/us/ new-york-coronavirus-cases.html. To date, there have been 395,168 cases, and 31,029 deaths because of COVID-19 in the State of New York. See id. A. The Executive Orders Beginning in March 2020, in response to the COVID-19 pandemic
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besieging New York, Governor Cuomo issued a series of executive orders,
placing restrictions on New Yorkers:
(1) Order 202, issued on March 7, declared a disaster emergency in the State of New York. (Dkt. No. 1, Attach. 1 at 1-3.)
(2) Order 202.1, issued on March 12, prohibited large gatherings of over 500 people. (Id. at 4-7.)
(3) Order 202.3, issued on March 16, narrowed the prohibition on large gatherings to fifty persons. (Id. at 10-11.)
(4) Order 202.6, issued on March 18, required all New York State businesses to “reduce the in-person workforce at any work locations by 50%,” with exceptions for those businesses and entities that provided “essential services or functions.” (Id. at 17-18.)
(5) Order 202.8, issued on March 20, reduced the in-person workforces of non-essential businesses by 100%. (Id. at 21-22.)
(6) Order 202.10, issued on March 23, declared a total ban on “nonessential gatherings of individuals of any size for any reason.” (Id. at 25-28.)
(7) Order 202.17, issued on April 15, required face-coverings to be worn “when in a public place and unable to maintain, or when not maintaining, social distance.” (Id. at 46.)
(8) Order 202.31, issued on May 14, extended the closure of nonessential businesses and entities, and the ban on non-essential gatherings. (Id. at 69-70.) The Order also provided that “[a]ll enforcement mechanisms by state or local governments shall continue to be in full force an[d] effect until June 13, 2020 unless later extended or amended by a future Executive Order.” (Id.)
(9) Order 202.32, issued on May 21, modified the previous ban on non-
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essential gatherings “to permit a gathering of ten or fewer individuals for any religious service or ceremony,” provided that certain social distancing and health protocols were adhered to, and ordered that “any drive-in or remote religious service may continue in excess of the ten person limit so long as there is no in-person contact between participants.” (Id. at 71-73.)
(10) Order 202.33, issued on May 22, permitted non-essential gatherings of ten or fewer individuals “for any lawful purpose or reason,” provided that certain social distancing and health protocols were adhered to. (Id. at 74.)
(11) Order 202.34, issued on May 28, continued the restriction, postponement, and/or cancellation, of all non-essential gatherings of more than ten individuals, but allowed for any region that met certain public health and safety metrics to begin “Phase One reopening.” (Id. at 75-76.)
(12) Order 202.35, issued on May 29, ended workplace reductions and restrictions in certain regions for non-essential businesses, the “Phase Two industries,” which include: professional services, administrative support, and information technology; real estate services, building and property management, leasing, rental, and sales services; retail in-store shopping, rental, repair, and cleaning; barbershops and hair salons; and motor vehicle leasing, rental, and sales. (Id. at 77-78.) The restriction on outdoor gatherings of groups of more than ten people remained in place. (Id.)
(13) Order 202.36, issued on June 2, declared that any region to meet certain public health and safety metrics “may allow outdoor, low-risk recreational activities and businesses providing such activities, as determined by Empire State Development Corporation, to be permitted to operate, in accordance with Department of Health guidance.” (Id. at 79-80.)
(14) Order 202.37, issued on June 5, declared that “special education services and instruction required under Federal, state or local laws,
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rules, or regulations, may be provided in person for the summer term in school districts.” (Id. at 81.)
(15) Order 202.38, issued on June 6, modified Order 202.35, permitting any region to have entered “Phase Two” of New York’s reopening plan to allow “non-essential gatherings for houses of worship at no greater than 25% of the indoor capacity of such location.” (Id. at 82-83.) The restriction on outdoor gatherings of groups of more than ten people remained in place. (Id.)
(16) Order 202.42, issued on June 15, modified Order 202.35 and Order 202.38, permitting any region to have entered “Phase Three” of New York’s reopening plan to allow “non-essential gatherings . . . [of] twentyfive (25) or fewer individuals, for any lawful purpose or reason.” (Dkt. No. 33, Attach. 1 at 5.)
On June 17, 2020, Mayor de Blasio issued an “Emergency Executive
Order” incorporating Governor Cuomo’s executive orders, and “direct[ing]
the Fire Department of the City of New York, the New York City Police
Department, the Department of Buildings, the Sheriff, and other agencies
as needed to immediately enforce the [orders].” (Dkt. No. 32, Attach. 3 at
1-2.)
B. The Guidance
A document entitled “Guidance for Determining Whether a Business
Enterprise is Subject to a Workforce Reduction Under Recent Executive
Orders,” (hereinafter, the “Guidance Document”), was published and
simultaneously updated by the State of New York with the issuance of the
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executive orders described above. (Dkt. No. 1, Attach. 1 at 94-125, 12838.)
From March 20 through March 24, 2020 the Guidance Document provided that “worship services” are included among the enumerated businesses that “must remain closed and are not eligible for designation as an essential business for purposes of this guidance.” (Id. at 98.)
From March 25 through April 7, 2020 the Guidance Document provided that although “[h]ouses of worship are not ordered closed[,] . . . it is strongly recommended not to hold congregate services,” and reiterated that “worship services . . . are not eligible for designation as an essential business for purposes of this guidance.” (Id. at 105.) From April 8 through April 9, 2020 “worship services” continued to be listed as among the businesses that “must remain closed and are not eligible for designation as an essential business for purposes of this guidance.” (Id. at 113.)
From April 10 through May 20, 2020 the Guidance Document provided:
Pursuant to Executive Order 202.10 . . . , all nonessential gatherings of individuals of any size for any reasons (e.g. worship services, parties, celebrations or other social events) are canceled or postponed. Congregate services within houses of worship are
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prohibited. Houses of worship may only be used by individuals and only where appropriate social distancing of, at least, six feet between people can be maintained. Further, individuals should not gather in houses of worship, homes, or other locations for religious services until the end of this public health emergency. If possible, religious leaders should consider alternative forms of worship, replacing inperson gatherings with virtual services, such as phone or conference calls, videoconference calls, or online streaming. (Id. at 123.) From May 21 through June 5, 2020, the Guidance Document permitted a gathering of ten or fewer people for a religious service or ceremony, provided that certain social distancing and health protocols were adhered to, and permitted “any drive-in or remote religious service may continue in excess of the ten person limit so long as there is no in-person contact between participants.” (Id. at 135-36.) It further provided that “[f]aith leaders should continue to consider and use alternative forms of worship,” and that “congregations of groups for religious service or ceremony in excess of ten in-person participants remain prohibited.” ( Id.) Guidance for “Phase Two Industries” limit indoor capacity to no more
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than 50% of maximum capacity.2 See, e.g., Reopening New York: Essential and Phase II Retail Business Guidelines for Employers and Employees, https://www.governor.ny.gov/sites/governor.ny.gov/files/ atoms/files/GeneralRetailSummaryGuidance.pdf; Reopening New York: Hair Salon and Barbershop Guidelines for Employers and Employees, https://www.governor.ny.gov/sites/governor.ny.gov/files/atoms/files/HairSal onsAndBarbershopSummaryGuidance.pdf. And guidance for restaurants in “Phase Three” limits indoor capacity to no more than 50% of maximum occupancy, exclusive of employees. (Dkt. No. 32, Attach. 6 at 1.)
Beginning today, on June 26, outdoor graduations of up to 150 people will be allowed.3 See New York State Department of Health, Updated Interim Guidance for Graduation Celebrations During the COVID19 State of Emergency (June 14, 2020), https://coronavirus.health.ny.gov/ system/files/documents/2020/06/doh_covid19_updatedgraduationguidance _061420.pdf; Governor Announces Outdoor Graduations of up to 150 Will
2 The court takes judicial notice of the information contained on New York State’s official website as such public information is “accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b)(2).
3 The court takes judicial notice of the information contained on the New York State Department of Health’s official website as such public information is “accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b)(2).
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Be Allowed Beginning June 26th (June 7, 2020), https://on.ny.gov/311 JGWN. C. The Protests
Mass race-related protests have erupted across the nation, including in the State of New York, in response to the death of African-American George Floyd on May 25, 2020. (Compl. ¶ 22.) Protesters, sometimes in groups of thousands, have taken to the streets of New York City as well as other major cities in the State of New York. (Id. ¶¶ 22, 61, 69.)
During this time, a “social media campaign” has encouraged theaters in New York, which are to be closed until “Phase Four” of New York’s reopening plan, to open their lobbies and restrooms for protesters. (Dkt. No. 1, Attach. 1 at 160-64.) D. Responses From Cuomo and de Blasio
1. Governor Cuomo During a press conference held on June 1, 2020, when asked if he would “suggest people not go out and protest,” Governor Cuomo answered:
No, I think you can protest, but do it smartly and intelligently. . . . There were protests all across the country. Protest. Just be smart about it. With this
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virus, you can do many things now as long as you’re smart about it, right? You can reopen, you can go into a store and you can do a lot of things, just be smart. (Id. at 146.) When asked what the difference is “between protesting and a business, say, in the city who wants to reopen smartly if it’s not at the phase yet that they’re technically allowed to,” Governor Cuomo answered: Well, that’s where we’re at, but it has to be a business where you can be smart. Be smart, meaning socially distant. You don’t conduct business in a way where you have people within six feet. You have to wear the mask. You have to do the hand sanitizer. That’s where we’re going to be. (Id. at 146-47.) During a press conference held on June 4, 2020, when asked about his reopening plans, and if there was a way to “allow high school graduation ceremonies with social distancing,” Governor Cuomo remarked: “Did you hear anything that we’ve been talking about for the past 96 days? . . . [Y]eah I know everybody wants to go to a high school graduation, I get it. Not if they’re going to die.” (Id. at 150-52.) When asked how he is able to justify opening a patio for outside dining, but will not allow high school graduation ceremonies with social distancing, Governor Cuomo answered: “What difference does it make? . . . The issue
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is a public health issue and you don’t want people sick and dead. . . . It’s about death, it’s about balancing the risk versus the reward, balancing the desires and wants versus the consequences.” (Id. at 151-52.)
During this same press briefing, Governor Cuomo also stated, “I want to thank the protestors. . . . I stand with the protestors on the point that we need meaningful reform.” (Compl. ¶ 65 (emphasis omitted).)
When explaining the modification of non-essential gatherings for houses of worship to no greater than 25% of the indoor capacity of such location, provided in Order 202.38, Governor Cuomo explained, in part: “We are going to accelerate the opening of temples, mosques, [and] churches. . . . 25 percent occupancy is not as easy as 100 percent occupancy but 100 percent occupancy is a mass gathering and you really can’t do social distancing.” (Dkt. No. 1, Attach. 1 at 140.) He further advised New Yorkers to “[b]e smart. It does not mean you go to a temple or a mosque and you sit right next to a person. You have to socially distance.” (Id.)
2. Mayor de Blasio On April 28, Mayor de Blasio appeared in Williamsburg at a Jewish funeral gathering, which was dispersed by the New York Police
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Department (NYPD). (Compl. ¶ 53.) Via Twitter, Mayor de Blasio wrote: “Something absolutely unacceptable happened in Williamsburg tonite [sic]: a large funeral gathering in the middle of this pandemic. When I heard, I went there myself to ensure the crowd was dispersed. And what I saw WILL NOT be tolerated so long as we are fighting the Coronavirus.” (Dkt. No. 1, Attach. 1 at 126.) This was followed by another tweet: “My message to the Jewish community, and all communities, is this simple: the time for warnings has passed. I have instructed the NYPD to proceed immediately to summons or even arrest those who gather in large groups. This is about stopping this disease and saving lives. Period.” (Id. at 127.)
During a June 2, 2020 media conference, when asked: “What about the retail store owner facing imminent financial ruin or the religious person who cannot [attend a] house of worship? What about their pain and anger?” Mayor de Blasio replied, in part: “When you see a nation, an entire nation simultaneously grappling with an extraordinary crisis seeded in 400 years of American racism[,] I’m sorry[,] [t]hat is not the same question[] as the understandably aggrieved store owner, or the devout religious person who wants to go back to services.” (Id. at 155-56.)
On June 4, 2020, Mayor de Blasio, without a mask, attended and
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addressed a political gathering, held in memory of George Floyd. (Compl. ¶ 71.) Neither the ten-person limit on outdoor gatherings, nor the social distancing protocols, were adhered to. (Id.) E. Executive Orders’ Effect on Plaintiffs
1. Rev. Steven Soos and Rev. Nicholas Stamos Soos and Stamos are Catholic priests in the North Country region of New York, “who offer[] Mass and provide[] the other Sacraments of the Catholic Church to congregations located in Glens Falls, Massena[,] and Nicholville[, New York].” (Id. ¶¶ 3-4, 77, 79.) Soos and Stamos have been forbidden from offering Mass and the other Sacraments beyond an everchanging maximum number of people. (Id. ¶¶ 85-96.) Because of the limitations proscribed in the executive orders, Soos and Stamos are forced to either turn away parishioners who wish to attend Mass—a weekly obligation that Catholics face “under pain of mortal sin”—or to hold more Masses per day than are possible. (Id. ¶¶ 86-93.) Likewise, the percentage-based capacity limit prevents Soos and Stamos from holding a daily Mass for Massena students when they return to school. (Id. ¶ 95.) The permitted “drive-in” Masses are of little help to Soos, Stamos, and their congregation. (Id. ¶ 97.) Congregants are prohibited by the
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executive orders from leaving their vehicles at these drive-in Masses, which prevents congregants from kneeling while receiving Holy Communion, as is commanded by the Catholic religion. (Id.) Thus, the orders effectively “prohibit reception of Holy Communion itself—the very essence of the Mass—except under threat of prosecution and fines.” ( Id.) And although full outdoor masses are possible at the large churches at which Soos and Stamos hold Mass, the executive orders “make[] that impossible.” (Id. ¶ 100.)
Finally, the executive orders burden the Catholic practices of Holy Matrimony and of “outdoor burial services” where Soos and Stamos are forced to bar a certain amount of family members and friends from attending a wedding or a“graveside as their loved ones are laid to rest.” (Id. ¶¶ 96, 101.)
2. Daniel Schonbrun, Elchanan Perr, and Mayer Mayerfeld Schonbrun, Perr, and Mayerfeld are Orthodox Jewish congregants who attend synagogues in Brooklyn, New York, where they reside. (Id. ¶¶ 5-7, 103.) “The synagogue prayers required by their religion must have a minimum quorum of ten adult males (age thirteen or older), called the minyan.” (Id. ¶ 104.) Because of this requirement, in conjunction with the
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executive orders, even though Schonbrun, Perr, and/or Mayerfeld can attend services if they are part of this quorum, their female and non-adult male family members are always prevented from attending the services. (Id. ¶ 108.)
The permittance of drive-in synagogue services is of no help to these plaintiffs either, because “the minyan must all be present in the same room, not in various motor vehicles,” and “[m]oreover, any type of operation of a vehicle is prohibited on the Sabbath, which is the day the main weekly services take place.” (Id. ¶¶ 109-10.)
Schonbrun is a congregant of Chabad of Marine Park in Brooklyn, whose Rabbi decided to remain open in mid-March, notwithstanding the executive orders. (Id. ¶¶ 117-18.) On one occasion, the congregation was holding a prayer service outside when a police officer arrived and informed them that they were conducting an “illegal gathering,” despite the fact that only eight congregants were present, and they “were at least 20 feet apart from each other.” (Id. ¶¶ 121-22.) When the congregants refused to disperse, the police officer threatened them with fines and arrest. ( Id. ¶ 123.) Shortly thereafter, more police officers arrived on the scene, where they remained until they were certain that all members of the congregation
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had left the area. (Id. ¶¶ 124-26.) Because of the executive orders, and the accompanying fear of
arrest and harassment from community activists and the police for violating them, “Schonbrun and his fellow congregants missed many religious services, including during Passover.” (Id. ¶ 128.) Further, Schonbrun’s son has not been able to attend synagogue services for months, as he is not yet old enough to be part of a minyan. (Id. ¶ 129.) “Schonbrun now lives in constant fear of police intervention in what remains of Jewish worship under the ten-person limit.” (Id. ¶ 130.)
Perr is a member of a congregation in the Flatbush-Midwood section of Brooklyn, where “even before ‘congregate worship’ was prohibited . . . police were advising members of the Jewish community . . . that synagogues must close outright.” (Id. ¶¶ 134-35.) Thus, Perr attended another synagogue, Congregation Zichron Aryeh Leib. (Id. ¶ 136.) Perr and his fellow congregants were subject to “constant police presence and interference,” which caused them to live in fear and took from them the “tranquility of worship.” (Id. ¶¶ 137-39, 144.)
At one point, Perr “observed that [the] synagogue had been locked and that there was a notice on the door from the Health Department that
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the synagogue had been closed and that no services could be conducted there.” (Id. ¶ 141.) On that same day, the police “broke up” a Jewish funeral that Perr attended, at which social distancing protocols had been followed. (Id. ¶ 142.) Perr was also unable to hold a Bar Mitzvah for his son, and his wife and children have been unable to attend synagogue services since March, due to the executive orders and the aforementioned quorum requirement. (Id. ¶ 148.)
Mayerfeld mainly attended two different synagogues, Shaarei Zion and Congregation Bnai Torah, where he and his fellow congregants were subject to repeated “harassment” and surveillance by the police, allegedly at the behest of Mayor de Blasio and Governor Cuomo. (Id. ¶¶ 153-57.) Accordingly, Mayerfeld attempted to hold services in his own backyard. (Id. ¶ 158.) However, he was subjected to harassment and “bullying” from his neighbors, which he alleges was “incited by . . . [Mayor] de Blasio, who vowed to crack down on the Jewish community for failing to observe [Governor] Cuomo’s ban on religious gatherings.” (Id. ¶¶ 159-60.) As is the case with Schonbrun and Perr, Mayerfeld’s family has been unable to attend synagogue services due to the executive orders’ capacity limit and his religion’s quorum requirement for such services. (Id. ¶¶ 162-63.)
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F. Procedural History Plaintiffs commenced this action on June 10, 2020 by filing a verified
complaint and an application for a temporary restraining order by order to show cause. (Dkt. Nos. 1, 2, 7.) The court set an expedited briefing schedule and a motion return via video conference. (Dkt. No. 8.) At the conclusion of the return, the court afforded the parties an opportunity to supplement the record and submit additional argument, which they all did. (Dkt. Nos. 31-33.)
Plaintiffs allege four enumerated causes of action based on the circumstances described above: (1) a violation of the Free Exercise Clause of the First Amendment pursuant to 42 U.S.C. § 1983; (2) a violation of the First Amendment rights of speech, assembly, and expressive association conduct pursuant to 42 U.S.C. § 1983; (3) a violation of the Equal Protection Clause of the Fourteenth Amendment pursuant to 42 U.S.C. § 1983; and (4) “Ultra Vires State Action in Violation of Federal Rights.” (Compl. ¶¶ 164-210.)
III. Standard of Review A party seeking a preliminary injunction must demonstrate: (1) a likelihood of success on the merits or . . . sufficiently serious questions going to the
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merits to make them a fair ground for litigation and a balance of hardships tipping decidedly in the plaintiff[s’] favor; (2) a likelihood of irreparable injury in the absence of an injunction; (3) that the balance of hardships tips in the plaintiff[s’] favor; and (4) that the public interest would not be disserved by the issuance of an injunction.
Benihana, Inc. v. Benihana of Tokyo, LLC, 784 F.3d 887, 895 (2d Cir.
2015) (internal quotation marks and citation omitted).
IV. Discussion
Legal challenges to executive branch responses to the COVID-19
outbreak have been numerous in the wake of the virus. Recently the
Supreme Court weighed in on a California-based limitation for religious
gatherings of “25% of building capacity or a maximum of 100 attendees.”
S. Bay United Pentecostal Church v. Newsom, 140 S. Ct. 1613, 1613
(2020). Chief Justice Roberts concurred in a decision to deny injunctive
relief, explaining:
The precise question of when restrictions on particular social activities should be lifted during the pandemic is a dynamic and fact-intensive matter subject to reasonable disagreement. Our Constitution principally entrusts “[t]he safety and the health of the people” to the politically accountable officials of the States “to guard and protect.” Jacobson v. Massachusetts, 197 U.S. 11, 38 (1905). When those officials “undertake[] to act in areas fraught with
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medical and scientific uncertainties," their latitude "must be especially broad.” Marshall v. United States, 414 U.S. 417, 427 (1974). Where those broad limits are not exceeded, they should not be subject to second-guessing by an “unelected federal judiciary,” which lacks the background, competence, and expertise to assess public health and is not accountable to the people. See Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528, 545 (1985). Newsom, 140 S. Ct. at 1613-14. Newsom, following the guidance of Jacobson, instructs courts to refrain from Monday-morning quarterbacking the other co-equal, elected branches of government when those branches are responding to difficulties beyond those that are incidental to ordinary governance. See id. Chief Justice Roberts recognized, however, that there are “broad limits” which may not be eclipsed. See id. To determine whether the aforementioned broad limits have been exceeded, which Newsom did not address, the court turns to Free Exercise Clause jurisprudence within the framework of the applicable standard of review. Having carefully reviewed the relevant issues, and with a firm understanding that the executive branch response to the pandemic has presented issues with a degree of complexity that is unrivaled in recent history, it is plain to this court that the broad limits of that executive latitude
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have been exceeded. That is not to say that Governor Cuomo or Mayor de Blasio have utterly failed in their reaction to COVID-19. To the contrary, the State of New York, at the moment anyway, is among the best situated states in terms of infection and mortality rates. While there is more clarity every day with respect to the best practices for slowing the spread of COVID-19, there is wide and reasonable disagreement about exactly how to implement rules and regulations to achieve those ends, and, as is particularly present in this case, even more so with respect to reopening in a way that promotes safety, economic viability, and the enjoyment of all the rights that the people of this country and the State of New York are guaranteed. As the Chief Justice recognized in Newsom, it is not the judiciary’s role to second guess the likes of Governor Cuomo or Mayor de Blasio when it comes to decisions they make in such troubling times, that is, until those decisions result in the curtailment of fundamental rights without compelling justification. A. Success on the Merits4
If neutral and generally applicable, laws challenged as burdening the
4 Plaintiffs argue that each of their four causes of action is likely to succeed on the merits. (Dkt. No. 2, Attach. 4 at 6-23.) Because each of the prongs is met with respect to plaintiffs’ Free Exercise Clause claim, the court need not, and does not, analyze the remainders.
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right to freely exercise religion are presumed valid. See Employment Div.,
Dep’t of Human Res. of Oregon v. Smith, 494 U.S. 872, 879 (1990); see
also Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S.
520, 546 (1993) (“A law burdening religious practice that is not neutral or
not of general application must undergo the most rigorous of scrutiny.”).
In addressing the constitutional protection for free exercise of religion, [the Supreme Court’s] cases establish the general proposition that a law that is neutral and of general applicability need not be justified by a compelling governmental interest even if the law has the incidental effect of burdening a particular religious practice. Neutrality and general applicability are interrelated, and . . . failure to satisfy one requirement is a likely indication that the other has not been satisfied. A law failing to satisfy these requirements must be justified by a compelling governmental interest and must be narrowly tailored to advance that interest.
Lukumi, 508 U.S. at 531-32 (citation omitted).
“Although a law targeting religious beliefs as such is never
permissible, if the object of a law is to infringe upon or restrict practices
because of their religious motivation, the law is not neutral.” Id. at 533
(citations omitted).
To determine the object of a law, [the court] must begin with its text, for the minimum requirement of neutrality is that a law not discriminate on its face. A
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law lacks facial neutrality if it refers to a religious practice without a secular meaning discernable from the language or context. Id. “The general applicability requirement prohibits the government from ‘in a selective manner impos[ing] burdens only on conduct motivated by religious belief.’” Cent. Rabbinical Cong. of U.S. & Canada v. N.Y.C. Dep't of Health & Mental Hygiene, 763 F.3d 183, 196 (2d Cir. 2014) (quoting Lukumi, 508 U.S. at 543). “It ‘protect[s] religious observers against unequal treatment, and inequality [that] results when a legislature decides that the governmental interests it seeks to advance are worthy of being pursued only against conduct with a religious motivation.’” Id. at 196-97 (quoting Lukumi, 508 U.S. at 542-43). “While ‘[a]ll laws are selective to some extent, . . . categories of selection are of paramount concern when a law has the incidental effect of burdening religious practice.’” Id. at 197 (quoting Lukumi, 508 U.S. at 542). “A law is therefore not generally applicable if it is substantially underinclusive such that it regulates religious conduct while failing to regulate secular conduct that is at least as harmful to the legitimate government interests purportedly justifying it.” Id. at 197 (citation omitted); see Lukumi, 508 U.S. at 543.
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“Individualized exemptions are [another] way in which a law can fail to be generally applicable.” Douglas Laycock & Steven T. Collis, Generally Applicable Law and the Free Exercise of Religion, 95 Neb. L. Rev. 1, 10 (2016). In Smith, the Supreme Court explained that, “where the State has in place a system of individual exemptions, it may not refuse to extend that system to cases of ‘religious hardship’ without compelling reason.” 494 U.S. at 884 (citation omitted). Case law within this Circuit supports the notion that individualized de facto exemptions can demonstrate that a challenged law is not generally applicable, and is therefore subject to heightened scrutiny. See Litzman v. N.Y.C. Police Dep’t, No. 12 Civ. 4681, 2013 WL 6049066, at *3 (S.D.N.Y. Nov. 15, 2013). Along these lines, when the challenged law does not carve out an exemption on its face, the history of enforcement is relevant to the existence of an exemption. See Stormans, Inc. v. Selecky, 854 F. Supp. 2d 925, 956-57 (W.D. Wash. 2012), rev’d on other grounds sub nom. Stormans, Inc. v. Wiesman, 794 F.3d 1064 (9th Cir. 2015), cert. denied, 136 S. Ct. 2433 (2016).
Plaintiffs argue that the limitations and restrictions placed on them by the executive orders and the Guidance Document (hereinafter collectively referred to as “challenged laws”) are not neutral or generally applicable,
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and, therefore, strict scrutiny applies. (Dkt. No. 2, Attach. 4 at 8.) More specifically, they assert that the challenged laws are not generally applicable because they are “substantially underinclusive—that is [they] ‘fail[] to prohibit nonreligious conduct that endangers [the government’s interests] in a similar or greater degree than [the prohibited religious activity] does.’” (Id. at 9 (citations omitted).) Plaintiffs further claim that mass race protests have been granted “an individualized exemption” and that “the government may not refuse to extend that system to cases of religious hardship without compelling reason.” (Id. at 9-10 (citation omitted).) That outdoor graduation ceremonies of 150 people or less or indoor special education services at summer schools without limitation are allowed also shows the unequal treatment and disfavoring of religion in plaintiffs’ view. (Dkt. No. 32 at 9.)
Finally, plaintiffs assert that the challenged laws fail strict scrutiny even though general efforts to prevent the spread of COVID-19 are “compelling interests of the highest order” because defendants cannot show that their interest in applying the restrictions to these plaintiffs, who abide by all social distancing and hygiene rules, is compelling. (Dkt. No. 2, Attach. 4 at 16-17.)
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The State argues, in overly-simplistic fashion, that the challenged laws only incidentally impose a burden on religious exercise, and they are neutral and generally applicable, and therefore, only rational basis need be shown, which is self-evident: preventing the spread of COVID-19. (Dkt. No. 18 at 11-12.) The State was silent with respect to the mass race protests in its written submissions until it filed a supplemental memorandum of law following the return on the motion. (Dkt. No. 33, Attach. 4.)5 In that supplement, the State argues that Governor Cuomo’s “political speech” cannot support a de facto exemption vis-à-vis the mass race protests. (Id. at 5.)
The City initially responded with respect to only the ten-person indoor/outdoor limitation that was applicable in New York City during Phase 1. (Dkt. No. 19, Attach. 7 at 2.) It argues, like the State, that the challenged laws are neutral and generally applicable, but, unlike the State, the City initially acknowledged the mass race protests and contended that
5 The State argues, for the first time and in a submission to which plaintiffs have had no opportunity to respond, that, Governor Cuomo enjoys absolute legislative immunity and, in an argument much more fully developed than in its original papers, that, because of sovereign immunity, he and Attorney General James are not proper defendants. (Dkt. No. 33, Attach. 4 at 7-10.) Because it was not raised in time for plaintiffs to offer any response to it, the court will not consider the legislative immunity argument at this juncture. The same is true of the new sovereign immunity argument. The State is, of course, free to raise those arguments later in the litigation.
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they are not comparable because protests occur outside and religious activity typically occurs inside. (Dkt. No. 19, Attach. 7 at 7, note 4.) Further the City asserts, relying on Calvary Chapel Dayton Valley v. Sisolak, 2020 U.S. Dist. LEXIS 103234 (D. Nev. June 11, 2020), that the enforcement of the challenged laws against protesters creates safety concerns and, absent clear patterns of unconstitutional selective enforcement, the court should not second guess the State’s determinations. (Id. at 8.) In its supplemental submission, the City contends that the orthodox Jewish plaintiffs “may no longer seek redress for their alleged injuries” because, as of June 22, New York City has entered Phase 2, which lifts the ten-person indoor/outdoor limitation and imposes a 25% indoor capacity limitation. (Dkt. No. 31, Attach. 6 at 1-2). The City also amplifies its contention, explained for the first time during the motion return, that a de facto exemption has not been created for mass race protesters. (Id. at 3-6.)
In light of the developments and natural progression of the challenged laws since the motion return, the restrictions and limitations at issue are: (1) a 25% indoor capacity limitation for Phases 2 and 3; (2) a twenty-five-person outdoor gathering limit in Phase 3 locations; and (3) a ten-person outdoor gathering limit in Phase 1 and 2 locations. And the
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City’s argument that Schonbrun, Perr, and Mayerfeld “may no longer seek redress” because their region has gone into Phase 2, (Dkt. No. 31, Attach. 6 at 1-2), is rejected. While it is true that their allegations are tailored to the ten-person indoor/outdoor limitation that existed when this matter was commenced, it is readily and reasonably inferable from their allegations that the 25% indoor capacity limitation would continue to burden their free exercise of religion.
Assuming, without deciding, that the challenged laws are neutral, plaintiffs have demonstrated a likelihood of success on the merits with respect to their free exercise claim because it appears that the challenged laws are not generally applicable, and that they would fail strict scrutiny.
1. 25% Indoor Capacity Limitation On its face, the 25% indoor capacity limitation applies only to houses of worship. See N.Y. Executive Order No. 202.38. Indeed, that limitation is the only one of its kind in the tangle of executive orders and the Guidance Document that have been issued in response to the pandemic; in other words, no other secular entity, save for those that remain closed in their entirety until Phase 4 or beyond, are limited to only 25% capacity. The “nonessential businesses,” dubbed “Phase 2 industries” by executive order,
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that enjoy a 50% capacity limitation are, however, not justifiably different than houses of worship. (Dkt. No. 32, Attach. 1 ¶ 18.)
For example, offices, retail stores that are not inside of shopping malls, and salons were permitted to open at 50% capacity beginning in Phase 2. To a greater or lesser degree, the Phase 2 industries involve the congregation of people for a length of time. And restaurants in Phase 3 locations are permitted to open at 50% capacity indoors. Restaurant patrons sit and congregate with family and friends in close proximity for a lengthy period of time, and have close contact with their hosts and servers. Face coverings may be removed while seated. (Dkt. No. 32, Attach. 6 at 1.) Additionally, special educational services will be permitted during “the summer term in school districts” with no indoor capacity limitations.
All of this is to demonstrate that these secular businesses/activities threaten defendants’ interest in slowing the spread of COVID-19 to a similar or greater degree than those of plaintiffs’, and demonstrate that the 25% indoor capacity limitation on houses of worship is underinclusive and triggers strict scrutiny review.6
6 There is also an arguable basis to find a de facto exemption in light of the open lobbies social media campaign. In light of the court’s conclusion that the 25% indoor capacity limitation is not generally applicable because it is underinclusive, it need not reach the individualized exemption argument. Admittedly, the basis of such an argument here is on far
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2. Twenty-Five-Person Outdoor Limitation in Phase 3; Ten-Person Outdoor Limitation in Phases 1 and 2
Despite the State’s claim that enforcement power rests with local authorities in an effort to show that selective enforcement against mass race protesters is not a de facto exemption imposed by Governor Cuomo or Attorney General James, (Dkt. No. 33, Attach. 4 at 5-7), Governor Cuomo clearly has authority over the New York State Police and broad powers of enforcement, see N.Y. Exec. Law § 223 (explaining that the superintendent of state police and its members “shall . . . be subject to the call of the governor and are empowered to co-operate with any other department of the state or with local authorities”). And, in any case, Governor Cuomo’s comments, which applauded and encouraged protesting and discouraged others from violating the outdoor limitations, likely demonstrate the creation of a de facto exemption.
Mayor de Blasio is a “local authority” with clear enforcement power and has at his disposal one of the largest municipal police departments in the world, (Dkt. No. 1, Attach. 1 at 127), and has also actively encouraged
shakier footing, given the lack of acknowledgment or endorsement by defendants, than it is with respect to the mass race protests discussed below.
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participation in protests and openly discouraged religious gatherings and threatened religious worshipers as set forth above. The City’s argument that temporary selective enforcement of the challenged laws with respect to mass race protests is a matter of public safety based on the rationale of Sisolak, 2020 U.S. Dist. LEXIS 103234, would perhaps be legitimate but for Mayor de Blasio’s simultaneous pro-protest/anti-religious gathering messages, which clearly undermine the legitimacy of the proffered reason for what seems to be a clear exemption, no matter the reason. Governor Cuomo and Mayor de Blasio could have just as easily discouraged protests, short of condemning their message, in the name of public health and exercised discretion to suspend enforcement for public safety reasons instead of encouraging what they knew was a flagrant disregard of the outdoor limits and social distancing rules. They could have also been silent. But by acting as they did, Governor Cuomo and Mayor de Blasio sent a clear message that mass protests are deserving of preferential treatment.
Another case of individualized exemption seems even more obvious. The State has specifically authorized outdoor, in-person graduation ceremonies of no more than 150 people beginning today, June 26. This is
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an express exemption from the ten- or twenty-five-person outdoor limits that apply across Phases 1, 2, and 3, and the State must extend a similar exemption to plaintiffs absent a compelling reason to the contrary. See Smith, 494 U.S. at 884. And there is nothing materially different about a graduation ceremony and a religious gathering such that defendants’ justifications for a difference in treatment can be found compelling.
3. Strict Scrutiny For the reasons articulated in plaintiffs’ memorandum of law, defendants’ generally-stated compelling interest in controlling the spread of COVID-19 is inadequate to demonstrate that they have a compelling interest that is narrowly tailored to these specific plaintiffs. (Dkt. No. 2, Attach. 4 at 16-18.) The City’s attempt to demonstrate otherwise is unavailing, (Dkt. No. 31, Attach. 6 at 5-6); and the State has made no attempt to do so. B. Irreparable Harm, Balance of Hardships, and Public Interest Plaintiffs contend that the fear of threatened arrest, prosecution and fines demonstrate the irreparable harm necessary to support the second prong of the preliminary injunction standard, and that the deprivation of First Amendment rights is presumed to amount to irreparably injury. (Dkt.
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No. 2, Attach. 4 at 23-24.) The State contends that, because plaintiffs are not being prevented from exercising their religious rights, and, instead, are only being required to do so in a different way, the presumption of irreparable harm does not apply. (Dkt. No. 18 at 23-24.) The City appears to concede that First Amendment violations are sufficient to demonstrate irreparable injuries for the purpose of a preliminary injunction. (Dkt. No. 19, Attach. 7 at 1.)
As noted by plaintiffs and the City, the loss of plaintiffs’ free exercise rights is alone adequate to demonstrate irreparable injury here. See Elrod v. Burns, 427 U.S. 347, 373 (1976); Bery v. City of New York, 97 F.3d 689, 693 (2d Cir. 1996), cert. denied, 520 U.S. 1251 (1997). Accordingly, plaintiffs have met their burden in this regard.
Plaintiffs have also satisfied the court with respect to the final two prongs. (Dkt. No. 2, Attach. 4 at 24-25.) The balance of hardships tips in plaintiffs’ favor. Indeed, in the absence of an injunction, plaintiffs’ religious activities will be burdened and continue to be treated less favorably than comparable secular activities. An injunction, on the other hand, does not undercut defendants’ interest in controlling the spread of COVID-19, provided that plaintiffs abide by social distancing guidance.
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“As for the public interest, treatment of similarly situated entities in comparable ways serves public health interests at the same time it preserves bedrock free-exercise guarantees.” Roberts v. Neace, 958 F.3d 409, 416 (6th Cir. 2020); see N.Y. Progress & Prot. PAC v. Walsh, 733 F.3d 483, 488 (2d Cir. 2013). C. Appropriate Remedy
“District courts have broad authority in crafting equitable remedies such as injunctions.” Conn. Office of Prot. & Advocacy For Persons With Disabilities v. Hartford Bd. of Educ., 464 F.3d 229, 245 (2d Cir. 2006) (citations omitted). For the reasons explained above, appropriate injunctive relief here is a restraint on defendants from enforcement of any indoor gathering limitations against plaintiffs greater than imposed for Phase 2 industries and restraint from enforcement of any limitation for outdoor gatherings against plaintiffs. However, the court is unpersuaded that defendants should be enjoined from the enforcement of the social distancing rules as set forth in the challenges laws. The court dispenses with the security requirement of Rule 65(c) of the Federal Rules of Civil Procedure. See Complete Angler, LLC v. City of Clearwater, Fla., 607 F. Supp. 2d 1326, 1335 (M.D. Fla. 2009) (“Waiving the bond requirement is
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particularly appropriate where a plaintiff alleges the infringement of a fundamental constitutional right.” (citations omitted)). D. Amicus Curiae
Ahuva Kleinman moves for leave to appear as amicus curiae. (Dkt. No. 27.) “There is no governing standard, rule or statute prescribing the procedure for obtaining leave to file an amicus brief in the district court.” Lehman XS Tr., Series 2006-GP2 v. Greenpoint Mortg. Funding, Inc., No. 12 CIV. 7935, 2014 WL 265784, at *1 (S.D.N.Y. Jan. 23, 2014) (internal quotation marks, alteration, and citation omitted). Indeed, “[d]istrict courts ha[ve] broad discretion to permit or deny the appearance of amici curiae in a given case.” Kearns v. Cuomo, No. 1:19-CV-00902, 2019 WL 5060623, at *4 (W.D.N.Y. Oct. 9, 2019) (citation omitted). “The usual rationale for amicus curiae submissions is that they are of aid to the court and offer insights not available from the parties. Thus, when those purposes are not served, typically, courts deny motions seeking leave to appear amicus curiae.” Id. at *5 (internal quotation marks, alterations, and citations omitted).
The circumstances under which an amicus brief is considered to be an aid to the court are limited: “An amicus brief should normally be allowed
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when a party is not represented competently or is not represented at all, when the amicus has an interest in some other case that may be affected by the decision in the present case . . . or when the amicus has unique information or perspective.” Best Payphones, Inc. v. Dobrin, 410 F. Supp. 3d 457, 465 n.3 (E.D.N.Y. 2019) (alterations and citation omitted). “Otherwise, leave to file an amicus brief should be denied.” Id. (alterations and citation omitted).
Here, the need for an amicus curiae is minimal to non-existent. The competence and skill of plaintiffs’ counsel obviates the need for additional input. Accordingly, while the efforts of the prospective amicus are admirable, her motion for leave to appear as amicus curiae, (Dkt. No. 27), is denied.
V. Conclusion WHEREFORE, for the foregoing reasons, it is hereby ORDERED that plaintiffs’ application for a preliminary injunction (Dkts. No. 2, 7) is GRANTED; and it is further ORDERED that defendants are ENJOINED and RESTRAINED as follows: (1) from enforcing any indoor gathering limitations against plaintiffs
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greater than imposed for Phase 2 industries, provided that plaintiffs follow social distancing requirements as set forth in the applicable executive orders and guidance; and (2) from enforcing any limitation for outdoor gatherings provided that participants in such gatherings follow social distancing requirements as set forth in the applicable executive orders and guidance; and it is further ORDERED that Kleinman’s motion for leave to appear as amicus curiae (Dkt. No. 27) is DENIED; and it is further ORDERED that the Clerk provide a copy of this MemorandumDecision and Order to the parties. IT IS SO ORDERED. June 26, 2020 Albany, New York
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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK
REV. STEVEN SOOS, REV. NICHOLAS STAMOS, DANIEL SCHONBRUN, ELCHANAN PERR and MAYER MAYFELD,
Plaintiffs,
-against-
ANDREW M. CUOMO, Governor of the State of New York, in his official capacity,
LETITIA JAMES, Attorney General of the State of New York in her official capacity,
and
BILL DE BLASIO, Mayor of the City of New York, in his official capacity,
Defendants.

ANSWER
20-CV-0651 (GLS)(DJS)

Defendants Andrew M. Cuomo and Letitia James, by their attorney, Letitia James, Attorney General of the State of New York, Adrienne J. Kerwin, Assistant Attorney General, of counsel, answer the complaint as follows:
1. Deny the allegations contained in paragraph 1, except admit that Plaintiffs challenge Executive Orders issued by Defendant Governor Cuomo.
2. Deny the allegations contained in paragraph 2, except admit that Plaintiffs seek declaratory and injunctive relief.
3. Deny knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraphs 3, 4, 5, 6, and 7 of the complaint.

Case 1:20-cv-00651-GLS-DJS Document 54 Filed 10/02/20 Page 2 of 10
4. Admit the allegations contained paragraphs 8 and 9 of the complaint. 5. Deny knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph 10 of the complaint, except admit that Defendant Mayor Bill de Blasio is Mayor of the City of New York and that Plaintiffs purport to sue him in his official capacity. 6. Deny the allegations contained in paragraph 11 of the complaint that this action raises federal questions under 42 U.S.C. §§ 1920 and 1988, 28 U.S.C. §§ 2201 and 2201 and supports federal question jurisdiction, and deny that Plaintiffs complaint supports First and Fourteenth Amendment constitutional claims under 42 U.S.C. § 1983, except admit that Plaintiffs rely upon the cited statutes for federal question jurisdiction. 7. Deny the allegations contained in paragraph 12 of the complaint, except admit that Plaintiffs rely upon the cited statutes for federal question jurisdiction. 8. Deny the allegations contained in paragraph 13 of the complaint, except admit that Plaintiffs rely upon the cited statutes for their request for relief. 9. Deny knowledge or information sufficient to form a belief as to the truth of the allegation contained in paragraph 14 of the complaint that two plaintiffs reside in the Northern District, except admit that venue is proper in the Northern District, and deny any remaining allegations contained in paragraph 14 of the complaint. 10. Deny the allegations contained in the unnumbered paragraph titled “Introduction” as an incomplete quotation. 11. Deny the allegations contained in paragraph 15 of the complaint.
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12. Deny the allegations contain in paragraph 16 of the complaint, except admit that 10 N.Y.C.R.R. § 66-3.5 includes a maximum fine of $1,000 for violations of 10 N.Y.C.R.R. § 66-3.2, § 66-3.3 and § 66-3.4.
13. Deny the allegations contained in paragraphs 17 and 18 of the complaint. 14. Deny knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph 19 of the complaint. 15. Deny the allegations contained in paragraph 20 of the complaint, except aver that Executive Order 202.38 was issued on June 6, 2020 “to permit any non-essential gatherings for houses of worship at no greater than 25% of the indoor capacity of such location, provided it is in a geographic area in Phase 2 of re-opening, and further provided that social distancing protocols and cleaning and disinfection protocols required by the Department of Health are adhered to.” 16. Deny the allegations contained in paragraphs 21, 22, 23 of the complaint. 17. Deny the allegations contained in paragraph 24 of the complaint, except deny knowledge or information sufficient to form a belief as to the truth of the allegations about the actions of governors and mayors in other states. 18. Deny the allegations contained in paragraphs 25 and 26 of the complaint. 19. Deny the allegations contained in paragraph 27 of the complaint, except admit that Plaintiffs purport to seek the relief stated. 20. Deny the allegations contained in paragraph 28 of the complaint as an incomplete and inaccurate recitation of the Executive Order, except admit that on March 7, 2020, Governor Cuomo issued Executive Order 202, and respectfully refer the court to the Executive Order for its content.
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21. Deny the allegations contained in paragraph 29 of the complaint as an incomplete and inaccurate recitation of the Executive Order, except admit that Executive Order 202 was followed by other Executive Orders, and respectfully refer the court to the Executive Order for its content.
22. Deny the allegations contained in paragraphs 30, 31, and 32 of the complaint as an incomplete and inaccurate recitation of the Executive Orders and the “New York on Pause” plan, and respectfully refer the court to the Executive Order and the New York on Pause plan for the content.
23. Deny knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph 33 of the complaint, except admit that Mayor de Blasio has issued orders denominated as EO 98, EO 103, and EO113-116, and respectfully refer the court to the Mayor’s orders for the content.
24. Deny the allegations contained in paragraphs 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, and 46 of the complaint as an incomplete and inaccurate recitation of the Executive Order and the “New York on Pause” plan, and respectfully refer the court to the Executive Order and the New York on Pause plan for the content.
25. Deny knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph 47 of the complaint.
26. Deny the allegations contained in paragraphs 48 and 49 of the complaint as an incomplete and inaccurate recitation of the Executive Order and the “New York on Pause” plan, and respectfully refer the court to the Executive Order and the New York on Pause plan for the content.
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27. Deny the allegations contained in paragraphs 50 and 51 of the complaint as an incomplete and inaccurate recitation of the Guidance, and respectfully refer the court to the Guidance for the content.
28. Deny the allegations contained in paragraph 52 of the complaint. 29. Deny knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraphs 53 and 54 of the complaint. 30. Deny the allegation contained in paragraph 55 of the complaint that the Guidance targeted religion, deny the remaining allegations contained in paragraph 55 of the complaint as an incomplete and inaccurate recitation of the Guidance, and respectfully refer the court to the Guidance for the content. 31. Deny the allegations contained in paragraphs 56, 57, and 58 of the complaint as an incomplete and inaccurate recitation of the Executive Order, and respectfully refer the court to the Executive Order for the content. 32. Deny the allegations contained in paragraph 59 of the complaint, except deny knowledge or information sufficient to form a belief as to the truth of the allegations concerning Mayor de Blasio. 33. Deny the allegations contained in paragraphs 60 and 61 of the complaint. 34. Deny knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph 62 of the complaint. 35. Deny the allegations contained in paragraph 63 of the complaint, except admit that during a press briefing on June 1, Governor Cuomo condemned violence. 36. Deny the allegations contained in paragraph 64 of the complaint.
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37. Deny the allegations contained in paragraphs 65 and 66 of the complaint, except respectfully refer the court to the transcript of the June 4, 2020 press briefing and admit those statements consistent with the transcript..
38. Deny the allegations contained in paragraph 67 of the complaint. 39. Deny knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraphs 68, 69, 70, 71, 72, 73, 74, 75, and 76 of the complaint. 40. Deny knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraphs 77, 78, 79, 80, 81, 82, 83, and 84 of the complaint. 41. Deny the allegations contained in paragraphs 85 and 86 of the complaint as an incomplete and inaccurate recitation of the Executive Order, and respectfully refer the court to the Executive Order for the content. 42. Deny the allegations contained in paragraph 87 of the complaint. 43. Deny knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraphs 88, 89, 90, 91, 92, 93, and 94 of the complaint. 44. Deny the allegations contained in paragraph 95 of the complaint, but deny knowledge or information sufficient to form a belief as to whether the chapel in Massena holds 350, whether the 25% capacity limitation will not permit a single daily Mass for 120-130 students when they return to school, or whether the 25% limitation will disrupt the school’s schedule. 45. Deny knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph 96 of the complaint. 46. Deny the allegations contained in paragraphs 97, 98, and 99 of the complaint.
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47. Deny knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph 100 of the complaint.
48. Deny the allegations contained in paragraphs 101 and 102 of the complaint. 49. Deny knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraphs 103, 104, 105 and 106 of the complaint. 50. Deny the allegations contained in paragraph 107 of the complaint. 51. Deny knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraphs 108, 109, 110, 111, 112, 113 and 114 of the complaint. 52. Deny the allegations contained in paragraphs 115, except deny knowledge or information sufficient to form a belief as to the truth of the allegations concerning Mayor de Blasio. 53. Deny the allegations contained in paragraph 116 of the complaint. 54. Deny knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraphs 117, 118, 119, 120, 121, 122, 123, 124, 125, and 126 of the complaint. 55. Deny the allegation contained in paragraph 127 of the complaint that Governor Cuomo published the Guidance, deny the remaining allegations contained in paragraph 127 of the complaint as inaccurate and incomplete recitation of the Guidance, except admit that the Guidance was issued by the Empire State Development Corporation on April 9, 2020. 56. Deny knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph 128 of the complaint.
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57. Deny the allegations contained in paragraph 129 of the complaint, except deny knowledge or information sufficient to form a belief as to the truth of the allegations concerning the age of Plaintiff’s son.
58. Deny knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraphs 130, 131, 132, 133, 134, 136, 137, 138, 139, 140, 141, 142, 143, 144, 145, and 146 of the complaint.
59. Deny the allegations contained in paragraph 147 of the complaint as an incomplete and inaccurate recitation of the Executive Order, and respectfully refer the court to the Executive Order for the content.
60. Deny knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph 148 of the complaint.
61. Deny the allegations contained in paragraph 149 of the complaint. 62. Deny knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraphs 150, 151, 152, 153, 154, 155, 156, 157, 158, and 159 of the complaint. 63. Deny the allegations contained in paragraph 160 of the complaint, except deny knowledge or information sufficient to form a belief as to the truth of the allegations concerning Mayor de Blasio. 64. Deny knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraphs 161, 162, and 163 of the complaint. 65. As to the allegations contained in paragraph 164 of the complaint, Defendants repeat their responses to the previous paragraphs of the complaint as if fully set forth herein.
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66. Deny knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph 165 of the complaint.
67. Deny the allegations contained in paragraphs 166, 167, 168, 169, 170, 171, 172, 173, 174, 175, 176, and 177 of the complaint.
68. As to the allegation contained in paragraph 178, Defendants repeat their responses to the previous paragraphs of the complaint as if fully set forth herein.
69. Deny the allegations contained in paragraphs 179, 180, 181, 182, 183, 184, 185, and 186 of the complaint.
70. As to the allegation contained in paragraph 187, Defendants repeat their responses to the previous paragraphs of the complaint as if fully set forth herein.
71. Deny the allegations contained in paragraphs 188, 189, 190, 191, 192, 193, 194, 195, 196, and 197 of the complaint.
72. As to the allegation contained in paragraph 198 of the complaint, Defendants repeat their responses to the previous paragraphs of the complaint as if fully set forth herein.
73. Deny the allegations contained in paragraph 199 of the complaint, except admit that Executive Law § 29-a provides Governor Cuomo with the statutory basis to issue Executive Orders, and respectfully refer the court to the statute for its content.
74. Deny the allegations contained in paragraphs 200, 201, 202, 203, and 204 as inaccurate and incomplete recitations of the statutory and constitutional provisions cited.
75. Deny the allegations contained in paragraphs 205, 206, 207, 208, 209, and 210 of the complaint.
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76. As to the allegations contained under the heading “PRAYER FOR RELIEF,”

deny that Plaintiffs are entitled to any of the relief sought.

Defenses

1. The complaint fails to state a claim upon which relief can be granted.

2. Plaintiffs’ claims are moot, in whole or in part.

3. To the extent that the complaint seeks the federal court to interpret New York State

Executive Law § 29-a, and the Governor’s authority thereunder, the court must abstain.

WHEREFORE, Defendants Andrew M. Cuomo and Letitia James respectfully ask that this

Court deny the relief requested, dismiss the complaint, and grant such other relief as to the Court

shall deem is just and equitable.

Dated: Albany, New York October 2, 2020

LETITIA JAMES Attorney General of the State of New York Attorney for Defendants Andrew M. Cuomo and
Letitia James The Capitol Albany, New York 12224

By: s/ Adrienne J. Kerwin
Adrienne J. Kerwin Assistant Attorney General, of Counsel Bar Roll No. 105154 Telephone: (518) 776-2608 Fax: (518) 915-7738 (not for service of papers) Email: Adrienne.Kerwin@ag.ny.gov

TO (via ECF): Christopher A. Ferrara Melanie V. Sadok Ellen Parodi

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF NEW YORK

REV. STEVEN SOOS, REV. NICHOLAS STAMOS, )

JEANETTE LIGRESTI, as parent and guardian of infant )

plaintiffs P.L. and G.L, DANIEL SCHONBRUN, )

ELCHANAN PERR, MAYER MAYERFELD, MORTON )

AVIGDOR,

)

)

Plaintiffs,

)

)

v.

)

)

ANDREW M. CUOMO, Governor of the State of New York, in )

his official capacity; LETITIA JAMES, Attorney General of the )

State of New York in her official capacity; KEITH M. )

CORLETT, Superintendent of the New York State Police, in his )

official Capacity; HOWARD A. ZUCKER, M.D., New York )

State Commissioner of Health, in his official capacity; BETTY )

A. ROSA, Interim Commissioner of the New York State )

Education Department, in her official capacity; EMPIRE )

STATE DEVELOPMENT CORPORATION (“ESD”), a New )

York State Public Benefit Corporation; BILL DE BLASIO, )

Mayor of the City of New York, in his official capacity; DR. )

DAVE A. CHOKSHI, New York City Commissioner of Health, )

in his official capacity; TERENCE A. MONAHAN, Chief of )

the New York City Police Department, in his official capacity; )

RICHARD CARRANZA, Chancellor of the New York City )

Department of Education in his official capacity.

)

Case No. 1:20-cv-00651-GLS-DJS

Defendants.

FIRST AMENDED VERIFIED COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF
Plaintiffs, by and through their counsel, complain as follows: NATURE OF ACTION
1. This First Amended Complaint adds new parties and further claims in this civil rights action, which challenges a series of executive orders issued by defendant Governor Andrew M. Cuomo (Cuomo) in an unprecedented and continuing abuse of power, premised on his original

Case 1:20-cv-00651-GLS-DJS Document 57 Filed 10/09/20 Page 2 of 153
declaration of a “disaster emergency” in Executive Order 202 issued seven months ago, on March 7, 2020, under the purported authority of § 28 of Article 2B of the New York Executive Law.
2. This Amended Complaint adds claims concerning Cuomo’s “Cluster Action Initiative” (CAI), which he announced less than 96 hours ago, on October 5, 2020, and promulgated 72 hours ago, on October 6, 2020 via Executive Order 202.68. Ex. 1-1.
3. Although, as shown below, deaths and hospitalizations attributed to COVID-19 peaked in April and declined to statistical zero months ago, eliminating any objective medical or scientific basis for a continuing “disaster emergency,” EO 202.68 now decrees that the entire State of New York is to be divided into Red, Orange and Yellow “zones” based on nothing more than a handful of positive COVID-19 test results of dubious validity, involving people who are largely asymptomatic and may not even know they have the virus or some remnant of it in their systems but are now misleadingly called “cases” of COVID-19.
4. As pleaded more particularly below, in Cuomo’s new “Red Zone,” based on a few positive COVID-19 tests of random people who made the mistake of cooperating with Cuomo’s testing regime, churches and synagogues are limited to merely ten people indoors, while religious schools are closed entirely. Also entirely banned are “non-essential” outdoor religious gatherings under threat of a $15,000 fine for anyone who organizes, promotes or even encourages such gatherings. In the Red Zone churches, synagogues, and religious schools are banned as “nonessential” gatherings, while in the Orange Zone religious schools are still banned and houses of worship are subject to onerous new restrictions on their operation.
5. Infant plaintiffs G.L and P.L., Schonbrun, Perr, Mayerfeld and Avigdor all reside, worship and educate their children in Cuomo’s “Red Zone” as established in Brooklyn based on a
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handful of positive COVID-19 tests called “cases” of the virus that supposedly constitute “hot spots.”
6. Plaintiffs Schonbrun, Perr, Mayerfeld and Avigdor are thus now deprived of Orthodox Jewish worship in their synagogues in the midst of the Holiday of Sukkot, one of the most important Jewish festivals, which began this year on Friday evening October 2nd and ends on Sunday night, October 11, as well as Jewish religious worship and education for their children in Jewish schools.
7. Infant plaintiffs P.L and G.L. are thus now deprived of Catholic worship in their church and Catholic worship and education in the appurtenant Catholic school.
8. Plaintiffs Soos and Stamos, while not yet located in one of Cuomo’s new “zones,” could be assigned to one at any moment and be subjected to new restrictions on their constitutional rights.
9. Plaintiffs seek emergent injunctive relief by way of a temporary restraining order, followed by a preliminary and final injunction against enforcement of the CAI and EO 202.68, which represents not only an entirely new deprivation of constitutional rights but is also, in certain of its elements, evidently contemptuous of this Court’s injunctive order of June 26, 2020.
ADOPTION OF ORIGINAL COMPLAINT 10. To avoid needless burdening of the record, plaintiffs hereby adopt and incorporate by reference the allegations and claims of the original Complaint, ECF No. 51, as supplemented by factual and legal developments since its filing on June 10, 2020 and the injunctive Order and Decision of this Court, issued June 26, 2020. See ECF No. 35. The later developments and related new claims are the subject of this First Verified Amended Complaint.
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11. In particular, plaintiffs adopt and incorporate by reference the following portions of the original complaint: (a) ¶¶ 28-163 (factual and legal allegations) and (b) all exhibits annexed to the Complaint as they appear in the electronic docket, to which this Amended Complaint shall make reference by ECF document number.
12. The Counts in this Amended Complaint will recapitulate those of the original complaint, while incorporating the additional allegations and claims presented herein, including those respecting the CAI, which commence at ¶ 64.
PARTIES 13. Plaintiff Rev. Steven Soos is a Catholic priest who engages in priestly ministry in a main church and other chapels located in this District in the North Country region of the state. 14. Plaintiff Rev. Nicholas Stamos is a Catholic priest who assists Rev. Soos in said priestly ministry. 15. Infant plaintiffs G.L and P.L. are sincere practitioners of the Catholic faith. They attend a Catholic school and a Catholic church located in Brooklyn, where they reside with their parents. 16. Plaintiff Mayer Mayerfeld is a sincere practitioner of the Orthodox Jewish faith who resides in Brooklyn, New York. 17. Plaintiff Elchanan Perr is a sincere practitioner of the Orthodox Jewish faith who resides in Brooklyn, New York. 18. Plaintiff Daniel Schonborn is a sincere practitioner of the Orthodox Jewish faith who resides in Brooklyn, New York. 19. Plaintiff Morton Avigdor is a sincere practitioner of the Orthodox Jewish faith. He is President of Congregation Ahavas Dovid, and Orthodox Jewish synagogue located in Brooklyn.
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20. Defendant Cuomo is the Governor of the State of New York. He is the State’s chief executive and enforcer of the challenged executive orders and other laws of the State of New York, including the offenses and penalties he has created under his executive order regime and the newly announced CAI, and whose enforcement he specifically directs, as more particularly pleaded below. At all times pertinent to this Complaint, Cuomo is and was acting under color of State law and in his official capacity. Defendant Cuomo’s principal place of business is located at the State Capitol Building, Albany, New York. He is sued in his official capacity.
21. Defendant James is and was the Attorney General for the State of New York, the State’s highest-ranking law enforcement officer charged with overall supervision of the enforcement of the challenged executive orders and other laws of the State of New York, including the CAI. At all times relevant to this Complaint, James is and was acting under color of State law and in her official capacity. Defendant James’ principal place of business is located at the State Capitol Building, Albany, New York. She is sued in her official capacity.
22. Defendant Corlett is the Superintendent of New York State Police. He is responsible for implementing and overseeing defendant Cuomo’s statewide enforcement of the challenged executive orders, including the CAI. At all times relevant to this Complaint, Corlett is sued in his official capacity. Defendant Corlett’s principal place of business in this District is located at 1220 Washington Ave., Bldg. 22, Albany, New York.
23. Defendant Zucker is New York State Commissioner of Health. He is responsible for implementing and overseeing defendant Cuomo’s statewide enforcement of the challenged executive orders, including EO 202.68 and the CAI, as well as the deployment of Health Department “monitors” to enforce compliance with “social distancing” and the wearing of “face coverings.” He is sued in his official capacity. Defendant Zucker’s principal place of business in
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this District is located at New York State Department of Health, Corning Tower, Empire State Plaza, Albany, NY.
24. Defendant Betty A. Rosa (Rosa) is Interim Commissioner of the New York State Education Department. Rosa is responsible for enforcement Cuomo’s executive orders, including the CAI, as they affect public and private schools, including the State’s “guidance” for private and religious schools issued pursuant to Cuomo’s executive orders. She is sued in her official capacity. Rosa’s principal place of business is 89 Washington Ave, Albany, NY 12234.
25. Defendant Empire State Development Corporation (ESD) is a New York State Public Benefit Corporation with principal offices located at 633 Third Avenue, City of New York, State of New York. Under Cuomo’s direction and authority, ESD is responsible for publishing “guidance” documents that implement Cuomo’s executive orders, including restrictions on religious and other “non-essential” gatherings under the CAI and otherwise.
26. Defendant Mayor Bill de Blasio is Mayor of the City of New York, where plaintiffs Schonbrun, Perr, Mayerfeld and infant plaintiffs G.L and P.L. reside. De Blasio is the final decision-maker in New York City concerning enforcement of the challenged executive orders, including the CAI and his own executive orders paralleling those issued by Cuomo. He is sued in his official capacity.
27. Dr. Dave A. Chokshi (Choksi) is the New York City Commissioner of Health. Choksi is responsible for enforcement of Cuomo’s executive orders, including the CAI, in New York City. He is sued in his official capacity. His principal place of business is the New York City Department of Health, 455 1st Avenue, New York, NY 10016.
28. Terence A. Monahan (Monahan) is Chief of the New York City Police Department. Monahan is responsible for enforcement in the City of Cuomo’s executive orders, including the
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CAI, and de Blasio’s parallel executive orders. His principal place of business is 1 Police Plaza, New York, NY 10038. Monahan is sued in his official capacity.
29. Richard is Carranza (Carranza) is Chancellor of the New York City Department of Education. Carranza is responsible for enforcement in New York of City of Cuomo’s executive orders, including the CAI under EO 220.68, and de Blasio’s parallel executive orders as they affect public and private schools, including the State’s “guidance” for private and religious schools issued pursuant to Cuomo’s executive orders. Carranza is sued in his official capacity. Carranza’s principal place of business is 52 Chambers St, New York, NY 10007.
30. All of the aforesaid defendants have acted and are acting at all pertinent times under color of state law.
JURISDICTION AND VENUE 31. This action raises federal questions under the First and Fourteenth Amendments of the United States Constitution and under federal law, 28 U.S.C. §§ 2201 and 2202 (Declaratory Judgments), as well as 42 U.S.C. §§ 1983, 1988, and 1920. 32. This Court has jurisdiction over these federal claims under 28 U.S.C. §§ 1331 and 1343. 33. This Court has authority to grant the requested injunctive relief under 28 U.S.C. § 1343(3), the requested declaratory relief pursuant to 28 U.S.C. §§ 2201 and 2202, and plaintiffs’ prayer for costs, including reasonable attorneys’ fees, under 42 U.S.C. § 1988 and 28 U.S.C. § 1920. 34. Pursuant to 28 U.S.C. § 1367, the Court has supplemental and pendent subject matter jurisdiction over the state law claims asserted by plaintiffs because the state law claims, based upon defendants’ violations of New York State Executive Law § 29-a, are so related to the other
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claims in this action over which the Court has original subject matter jurisdiction, and arise from a common nucleus of operative facts, that the State law claims form part of the same case or controversy under Article III of the United States Constitution.
35. Venue is proper in the Northern District pursuant to 28 U.S.C. § 1391, as five of the defendants reside in this District and a substantial part of the events giving rise to the claims herein arose in this District.
FACTS COMMON TO ALL COUNTS “I have to say to the Orthodox community tomorrow, if you’re not willing to live with these rules, then I’m going to close the synagogues… I’m going to say to the Orthodox community tomorrow, if you don’t agree, then we will have to close down your religious institutions.” “If the religious leaders do not agree to abide by these rules then we will close the religious institutions, period.”
Andrew M. Cuomo October 5, 2020
The Endless, Ever-Expanding “Disaster Emergency” 36. On June 26, this Court granted preliminary injunctive relief invalidating Cuomo’s numerical limits on outdoor gatherings as enumerated in the original complaint. 37. The Court granted this relief following Cuomo’s and defendant de Blasio’s endorsement of mass demonstrations numbering in the tens of thousands, packed into small spaces, while they forbade high school graduations, funerals and other comparatively miniscule outdoor gatherings under Cuomo’s executive orders banning or strictly limiting “non-essential gatherings.” 38. This Court further enjoined Cuomo and de Blasio from enforcing Cuomo’s restriction of indoor religious gatherings alone to 25% of building capacity, mandating that he and his subordinates afford indoor religious gatherings the same capacity limitation afforded to “Phase Two industries,” which was 50% to 100%, depending on the industry, with no numerical cap.
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Case 1:20-cv-00651-GLS-DJS Document 57 Filed 10/09/20 Page 9 of 153 39. Since the date of this Court’s injunction, the whole of the State of New York was
supposed to have entered the final Phase Four of the NYFP, with ad hoc adjustments in certain areas dictated by Cuomo according to his unfettered discretion—e.g., no indoor dining in New York City despite its allowance elsewhere in Phase Four.
40. Not even under Phase Four, however, has Cuomo permitted a full restoration of the constitutional rights of New York’s residents, including plaintiffs. Seven months after the virus first appeared in New York State, religious and funeral services under Phase Four are uniquely confined to 33% of indoor capacity according to the State’s “Guidance” document—despite this Court’s injunction—while numerous other activities, including “essential retail” and office environments, are allowed either 100% or 50% of indoor capacity. See Exhibit 2-1.
41. Yet, as of the date of this Complaint, both deaths and hospitalizations attributed (however loosely) to the virus have declined to statistical zero in both New York State and New York City, where those data have remained for months. The number of daily deaths attributed
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Case 1:20-cv-00651-GLS-DJS Document 57 Filed 10/09/20 Page 10 of 153 (however loosely) to COVID-19 in the state has been plummeting since mid-April and now stands at statistical zero, with a grand total of 9 deaths out of 19,000,000 people on October 7:
42. The same is true of COVID-“related” hospitalizations, which stood at a mere 748 out of 19,000,000 inhabitants of New York as of October 6, the very day the CAI was launched:
43. In New York City, following the same peak in April, deaths are likewise at statistical zero since mid-June, with 5 deaths in the City on October 4 (see Exhibits 2-4 and 2-5):
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44. New York City hospitalizations “related” to COVID-19 have followed the same inexorable trend toward zero since mid-April, with 22 COVID-“related” hospitalizations out of 9,000,000 inhabitants of the City as of October 1 (see Exhibit 2-6):
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Case 1:20-cv-00651-GLS-DJS Document 57 Filed 10/09/20 Page 12 of 153 45. Even the misleading statistic of COVID-19 “cases,” meaning only dubiously
reliable (see below) positive test results of random people without concomitant hospitalization, death or even active illness, peaked in April and reached statistical zero in June in both New York State and New York City, even though this statistic is now the only basis for the CAI. This is shown in the following two extracted from Exhibits 2-7 and 2-2 to this Complaint:
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Case 1:20-cv-00651-GLS-DJS Document 57 Filed 10/09/20 Page 13 of 153 46. Given that a total of 25,479 deaths in New York State have been attributed to
COVID-19 as of September 30, according to Cuomo’s own update, Exhibit 2-14, the COVID-19 pandemic that began in April and is now clearly spent has claimed barely over 1/10th of 1% (0.00130) of New York’s total population of 19,450,000 (25,479/19,450,000). The vast majority of those deaths are among those aged 65 and older with literally zero risk to children (see Exhibit 2-5):1
1/ See https://www.statista.com/statistics/1109867/coronavirus-death-rates-by-age-new-yorkcity/ for original source from which this chart has been extracted.
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47. As these data show conclusively, there is no longer any rational or factual basis for perpetuating a state of “disaster emergency” involving the suspension of the constitutional rights in New York State or New York City.
48. Since the date of this Court’s injunction, however, Cuomo has only expanded his quasi-monarchical rule over the State of New York, even as the COVID-19 outbreak dwindles toward the vanishing point and no longer poses any credible threat to the general population or the capacity of the health care system.
49. The “disaster emergency” declared in Order 202 has lasted more than 214 days and now threatens to become a new status quo, as Cuomo’s justification for it has constantly shifted: from “bending the curve” of the epidemic in order to prevent the overrunning of hospitals, to “limiting the spread” of the virus—without regard to whether people to which it spreads are adversely affected or just asymptomatic—to preventing a hypothetical “second wave.”
50. Cuomo now takes the position that it is not the virus itself that will cause the “second wave” but “cases” in the South and West of America. Cuomo declared on July 17 that an “outbreak” of “cases” anywhere in the country—asymptomatic, never-treated subjects who merely test positive—is an “outbreak” in New York that constitutes a continuing emergency:
What we're really looking at now is the potential of a second wave - not the second wave that we originally discussed. The second wave that we originally feared was from the theory of the 1918 pandemic where there was Phase One and then the virus mutated and came back in Phase Four. That's not what we're looking at here. This second wave would be man-made, not made by Mother Nature. It would not be mutation of the virus. It would be a wave that comes from the West and the South, a southwesterly wave that comes back to New York from the increase [of “cases”] in the other states. We are painfully aware now that an outbreak anywhere is an outbreak everywhere.. (emphasis added here and throughout this Amended Complaint)2/
2/ See Transcript of July 17 press briefing: https://www.governor.ny.gov/news/governor-cuomoannounces-new-york-city-cleared-global-health-experts-enter-phase-four-reopening
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51. Citing the “infection rate” in other states—meaning, again, the percentage of positive test results misleadingly categorized as “cases”—Cuomo issued Executive Order 2053/ June 24.
EO 205 blatantly interferes with freedom of movement and interstate travel by requiring that
anyone arriving in New York from “a state with a positive test rate higher than 10 per 100,000
residents, or higher than a 10% test positivity rate, over a seven day rolling average, will be
required to quarantine for a period of 14 days.” Cuomo’s list of “restricted states” now stands at 35 as of October 6.4/
52. This brazen declaration of a virtual nationwide travel ban by a lone governor was followed by Cuomo’s Executive Order 205.1,5/ issued September 28, in which he interferes with
international travel, imposing a 14-day quarantine on anyone arriving in New York “from any
country with a CDC Level 2 or Level 3 health notice.” The list of countries subject to Cuomo’s international travel ban now includes “all but 31 countries on the globe.”6/
53. In this regard, Cuomo imagines he is in command of a “valve” he can open or close
at will in order minutely to control the seemingly endless waxing and waning of COVID-19
“cases” by adjusting what is allowed and what is forbidden to New Yorkers as he sees fit, based
on “the numbers.” For example, as Cuomo informed the press on July 6:
It’s what we said from day one with my great graphic that nobody liked at the time I originally did it and nobody still likes, but I like it, so sometimes it’s nice to be Governor. You have a valve: Control the activity and watch, monitor the valves to see if the infection rate is going up, the hospitalization rate is going up and keep your hand on the valve. If you see it start to go up, slow down the valve. If you don’t see the numbers going up, then you can open up the economic activity valve.
3/ See https://www.governor.ny.gov/news/no-205-quarantine-restrictions-travelers-arriving-newyork 4/ See https://coronavirus.health.ny.gov/covid-19-travel-advisory 5/See https://www.governor.ny.gov/news/no-2051-quarantine-restrictions-travelers-arriving-newyork 6/ See https://coronavirus.health.ny.gov/covid-19-travel-advisory
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That’s what we've been doing and that’s what you see with these little corrections. New York City goes into Phase Three, but no indoor dining. We have the phases and then we have certain adjustments that we make to the phases. The numbers show you that we are right where we want to be. New York City goes into Phase Three today, no indoor dining. There are rules on Phase Three—it doesn't mean go out and have a party. We have 50 percent occupancy for personal care services. You have to wear face coverings, customers must wear face coverings, 6-foot distance.7/ 54. As Cuomo further observed on that occasion, his “valve” was “tightened” to close personal care facilities so that he was deprived of a facial he had planned for himself: “Prohibited services [sic] that require the removal of face coverings, such as facials, you can’t get a facial. I did that against my own self-interest. I was supposed to get a facial today. Closed the waiting rooms…. There are rules.” (emphasis added)
A “Casedemic” Replaces the Pandemic 55. No longer able to document his claim of a statewide “health emergency” with a statistically significant number of COVID-caused deaths or hospitalizations in a population of 19,000,000, Cuomo has quietly replaced the COVID-19 pandemic with a COVID-19 “casedemic.” He now describes anyone who tests positive for the virus as a “case” of COVID-19, even if the person tested is asymptomatic or only mildly affected, never required hospitalization or even a doctor’s visit, or never even knew he had the virus. 56. Even if mere positive tests for a virus without concomitant illnesses or hospitalizations constituted a public health emergency, the testing dataset is itself fraught with reliability problems. For example, in experiments utilizing samples taken from subjects who had submitted to the CDC’s “gold-standard” Reverse Transcriptase Polymerase Chain Reaction (PCR)
7/ See Transcript, of July 6 press briefing: https://www.governor.ny.gov/news/video-photosaudio-rush-transcript-governor-cuomo-announces-new-york-city-enters-phase-iii
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test, board-certified Pathologist Dr. Sin Hang Lee demonstrated that the PCR test yielded a distressingly high incidence of misdiagnosis. Beyond unreliable results, Dr. Lee’s study also revealed that the CDC’s sample labels were also unreliable, with some samples labeled “CDCtest-positive” being negative, and vice versa.8 Dr. Lee warns that “a positive test result must be substantiated by a DNA sequencing electropherogram showing the genomic fingerprints of the virus. False-positive test reports can easily create unnecessary panic resulting in negative impacts on local economies.”
57. As Dr. Lee here suggests, the problem with Newsom’s “casedemic” goes far beyond unreliable PCR test results. There is the bigger problem of “positive” results that are epidemiologically worthless because the result does not indicate an active infection—the genomic fingerprints of the virus—and thus only causes public hysteria, exploited to oppress millions with unconstitutional restrictions of fundamental rights, including the worship of God.
58. As The New York Times has just revealed, PCR testing is being abused to maximize the number of “cases” where there is no viral load sufficient to warrant medical concern. This is done by running, not 30 PCR cycles, as Dr. Lee’s study notes, but 40 or more cycles until some arguable remnant of the virus is found, which is then simply reported as a “positive” without providing the cycle threshold (C.T.) values. (Ex. 4-6.) The Times cites Harvard epidemiologist Dr. Michael Mina concerning testing in Massachusetts, where “from 85 to 90 percent of people who tested positive in July with a cycle threshold of 40 would have been deemed negative if the
8 (Sin Hang Lee, Testing for SARS-CoV-2 in cellular components by routine nest RT-PCR followed by DNA sequencing (Jul. 17, 2020) INTERNATIONAL JOURNAL OF GERIATRICS AND REHABILITATION, 2(1):69–96, https://bit.ly/3gTvZOB.)
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threshold were 30 cycles… ‘I would say that none of those people should be contact-traced, not
one,’ he said.”9 Dr. Mina would set the cycle threshold at 30 or even less. See Exhibit 3-8.
59. “I’m shocked that people would think that 40 [cycles] could represent a
positive,” said Dr. Juliet Morrison, a virologist at the University of California at Riverside to the
Times. The Times also quotes Angela Rasmussen, a virologist at Columbia University, who
protests: “It’s just kind of mind-blowing to me that people are not recording the C.T. values
from all these tests—that they’re just returning a positive or a negative.” Id.
60. Citing Dr. Mina, the Times exposé reported only a month ago (August 29) that the
result of this abuse is a wildly inflated number of “cases” that poses no threat to public health:
In three sets of testing data that include cycle thresholds, compiled by officials in Massachusetts, New York and Nevada, up to 90 percent of people testing positive carried barely any virus… On Thursday (August 27, 2020), the United States recorded 45,604 new coronavirus cases, according to a database maintained by The Times. If the rates of contagiousness in Massachusetts and New York were to apply nationwide, then perhaps only 4,500 of those people may actually need to isolate and submit to contact tracing… Tests with thresholds so high may detect not just live virus but also genetic fragments, leftovers from the infection that pose no particular risk—akin to finding a hair in a room long after a person has left, Dr. Mina said.
61. As the Times concluded: “But with 20 percent or more of people testing positive in some parts of the country, Dr. Mina and other researchers are questioning the use of PCR tests as a frontline diagnostic tool.” Id.
9 “Contact tracing” for a virus that has already spread to millions of asymptomatic Americans is just as pointless as widespread hypersensitive PCR testing. Common sense shows the absurdity of tracking down a tiny segment of COVID-19-infected people in a sea of millions of infections. As The New York Times observed of the effort on July 31: “The virus’s pervasiveness and major lags in testing have rendered the system almost pointless.” (Jennifer Steinhauer & Abby Goodnough, “Contact Tracing Is Failing in Many States. Here’s Why, (July 31, 2020) https://nyti.ms/3motjmb). Not almost pointless, but entirely so. Pointless “contact tracing” does, however, supply an excuse to prolong Cuomo’s COVID-19 dictatorship.
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62. Based solely on testing whose reliability and utility are seriously in question, however, New York’s health bureaucracy now declares that there are 472,994 “cases” of COVID19 in the state as October 7 based more than 10 million tests performed. There are probably hundreds of thousands more such “cases” to be found by the same relentless testing regime.
63. The only point of the testing is to find “cases” of COVID-19 in people who aren’t sick in order to perpetuate an “emergency” and an unconstitutional dictatorship that will never end as long as there are such “cases” to be found. What all the testing is really uncovering is hidden traces of a viral presence that become known, not because they are causing actual harm to the public, but because Cuomo is relentlessly hunting for them.
The “Cluster Action Initiative” 64. Moving the goal post of a return to normal yet again, Cuomo now declares a further suspension of constitutional rights until he has eliminated all “clusters” of the virus in what he deems “hot spots,” meaning merely a few positive COVID-19 test results in particular areas involving people who are not even sick. 65. On October 6, based on nothing but a few positive test results purporting to detect the presence of COVID-19 or its remnants in a handful of people in Brooklyn, Queens, Orange, Rockland and Broome Counties, but with no emergent increase in hospitalizations or deaths, Cuomo issued Executive Order 202.68, imposing his newly devised CAI on the entire of State New York. See Exhibit 1-1. 66. Under the CAI, the entire state is now subject to division into “zones” denominated Red, Orange or Yellow based on the number of positive COVID-19 test results. Depending on the zone classification, what was Phase Four of Cuomo’s New York Forward Plan (NYFP) to “reopen” the state he himself locked down is partially or even totally rolled back—seven months after the virus first appeared in New York and with hospitalizations and deaths at statistical zero.
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67. The restrictions on fundamental rights attendant to each zone are described in
Cuomo’s October 6 announcement of his new regime:
Red Zone — Cluster Itself
• Houses of Worship: 25 percent capacity, 10 people maximum • Mass Gatherings: Prohibited • Businesses: Only essential businesses open • Dining: Takeout only • Schools: Closed, remote only
Orange Zone — Warning Zone
• Houses of Worship: 33 percent capacity, 25 people maximum • Mass Gatherings: 10 people maximum, indoor and outdoor • Businesses: Closing high-risk non-essential businesses, such as gyms and
personal care • Dining: Outdoor dining only, 4 person maximum per table • Schools: Closed, remote only
Yellow Zone — Precautionary Zone
• Houses of Worship: 50 percent capacity • Mass Gatherings: 25 people maximum, indoor and outdoor • Businesses: Open • Dining: Indoor and outdoor dining, 4 person maximum per table • Schools: Open with mandatory weekly testing of students and
teachers/staff for in-person settings. The New York State Department of Health will establish a percentage of teachers and students/staff who need to be tested by Friday.
See Exhibit 1-2.
68. EO 202.68 provides that “The enforcement of the zones will go into effect as soon as
tomorrow and no later than Friday [October 9]” and that “any individual who encourages,
promotes or organizes a non-essential gathering as set forth in Department of Health regulation,
shall be liable for a civil penalty not to exceed $15,000 per day.” Ex. 1-1 at 1, 2.
69. EO 202.68 provides as follows:
The Department of Health shall determine areas in the State that require enhanced public health restrictions based upon cluster-based cases of COVID-
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19 at a level that compromises the State’s containment of the virus. Certain activities shall be restricted and any permitted activities, in all three zones below, shall be conducted in strict adherence to Department of Health guidance. Exhibit 1-1 at 1. 70. EO 202.68 provides no specific epidemiological or other criteria for defining what constitutes a “cluster,” how many positive tests are required for designation as a “Red Zone” an “Orange Zone” or a “Yellow Zone,” or what level of positive tests “compromises the State’s containment of the virus.” Moreover, “containment of the virus” as such is not defined. All of these undefined matters are left entirely to the unfettered discretion and unappealable decisions of the Department of Health, headed by defendant Zucker and answerable only to Cuomo. 71. Supplanting the NYFP, at least in the zones denominated Red, Orange or Yellow, the CAI is an entirely new framework for implementing Executive Order 202.6, issued on March 18, 2020, which established Cuomo’s original arbitrary distinction between “essential” and “nonessential” “businesses and non-profit entities,” and essential and “non-essential” gatherings, relegating churches and synagogues to the category of “non-essential,” where they have remained ever since. 72. The CAI allows a vast array of “essential business” to operate without indoor occupancy restrictions even in its “Red Zone,” including the following examples of places where people congregate indoors in large numbers and for extended periods of time:
• grocery stores including all food and beverage stores • pharmacies • convenience stores • farmer’s markets • gas stations • hardware, appliance, and building material stores • pet food • homeless shelters and congregate care facilities • food banks
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• human services providers whose function includes the direct care of patients in state-licensed or funded voluntary programs; the care, protection, custody and oversight of individuals both in the community and in state-licensed residential facilities; those operating community shelters and other critical human services agencies providing direct care or support
• airlines/airports • public and private transportation infrastructure such as bus, rail, for-hire vehicles,
garages • hotels, and other places of accommodation, including campgrounds. • senior/elder care • nursing homes, residential health care facilities, or congregate care facilities • food processing, manufacturing agents including all foods and beverages • laundromats and other clothing/fabric cleaning services • child care services • animal shelters and animal care including dog walking, animal boarding and pet
grooming but only to the extent necessary to ensure animal health • News media • banks or lending institution • higher education research • child care programs and services • government owned or leased buildings
See Exhibit 2-1.10
73. Under CAI’s new scheme of arbitrary occupancy restrictions, a church is closed for
worship, depending on its zone, but incurs no occupancy restriction whatsoever if the same church
premises are used to provide a homeless shelter, a food bank, or other “critical human services…
providing direct care or support” of individuals in the community.
74. The zone designations of the CAI have already expanded to include the following
counties as of October 7: Brooklyn, Queens, Rockland and Orange. Compliance with the CAI
zoned restrictions is now being enforced jointly by defendants Cuomo and de Blasio, as to counties
in New York City. See Exhibit 1-2.
10/ The aforementioned Empire State Development Guidance to “Cluster Initiative,” available at https://esd.ny.gov/ny-cluster-action-initiative-guidance.)
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Case 1:20-cv-00651-GLS-DJS Document 57 Filed 10/09/20 Page 23 of 153 75. As pleaded above, infant plaintiffs P.L. and G.L., Mayer, Perr and Schonbrun all
reside in Brooklyn’s newly created “Red Zone,” where gatherings inside churches and synagogues have been restricted to a maximum of ten persons, religious schools have been closed, and all nonessential outdoor gatherings, including religious gatherings, are forbidden under penalty of a $15,000 fine for the organizer, promoters or those who merely “encourage” a forbidden outdoor religious gathering.
76. The “Red Zone” in Brooklyn as well as the Orange and Yellow zones, are depicted on the following map, Exhibit 1-3, promulgated with Cuomo’s and De Blasio’s approval and authority:
77. Neither Cuomo nor de Blasio nor the DOH has specified the gross number or the percentage of positive tests that suffices for “Red Zone” designation or, for that matter, designation
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as an Orange or Yellow zone. The data Cuomo has published to date, however, demonstrate that

the number of positive tests being employed to justify the total suspension of constitutional rights

in the Red Zone is statistically trivial.

78. For example, Zip Code 11229, the location of Good Shepherd, the church attended

by infant plaintiffs P.L. and G.L and its appurtenant religious school, where they receive a religious

education and formation, is largely located in Cuomo’s highly restricted Red and Orange zones.

This area is supposed to be one of Cuomo’s “hotspots.” Yet the raw data concerning the number

of tests administered and number of positive results reported on September 29, based on the data

from September 28, show a mere twelve positive tests with only 299 tests performed.11 Ex. 2-11.

79. On the following day, September 30, 2020, the zone was again declared a “hot spot”

based on the data from September 29, which show a mere eleven positive tests within 11229, with

only 286 tests performed. There are over 80,000 residents in this zip code. Ex. 3-3.

80. Considering Brooklyn as a whole, the positivity rate for the two weeks preceding the

launching of the CAI were as follows (see Exhibits 2-11 and 2-12):

9/25: 9/26: 9/27: 9/28: 9/29: 9/30: 10/1: 10/2: 10/3: 10/4: 10/5: 10/6:

1.6% 2.0% 2.6% 1.7% 1.8% 1.9% 1.9% 2.3% 2.4% 2.5% 2.1% 2.2%

11 https://www.governor.ny.gov/news/governor-cuomo-meet-orthodox-jewish-communityleaders-address-covid-19-clusters
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81. The positivity rate in Brooklyn has remained around 2 percent as a whole during this time period.
82. When considering the number of “cases” within New York City schools located in the nine top zip codes Cuomo and de Blasio consider “hot spots,” including the 11229 Zip Code, a total of 1,351 tests were administered with two positive results. This accounts for a tiny 0.14 infection rate in schools located in these supposed “hotspots.” See Exhibit 3-6 at 2.
83. In sum, there is no epidemiological evidence to support the draconian restrictions of the CAI, especially given the reliability problems with PCR testing, noted above.
Cuomo Misleads Brooklyn’s Orthodox Jewish Community by Falsely Promising to Abide by this Court’s Order
84. On October 6, the day EO 202.68 and the CAI became legally operative, Cuomo, while professing to be a friend of the Orthodox Jewish community in Brooklyn, evinced patent bias against that community and religious gatherings in general: “No large gatherings in synagogues to save a life. You look at where the infection rate is. You look at those clusters. People will die in those clusters. This is about protecting people and saving lives.”
85. Cuomo presented no evidence whatsoever, and none exists, that “clusters”— a term not defined in the first place—have originated in synagogues or religious schools as opposed to innumerable other places in Brooklyn, including all the “essential businesses” Cuomo allows to operate at full capacity in the same “Red Zone.”
86. During the same press conference, Cuomo expressly stated that his real object was to restrict religion and not businesses:
[T]he new rules are most impactful on houses of worship, because the virus is not coming from non-essential businesses. That’s not what this is about. It may be spread by non-essential businesses. The virus is not starting in schools. It may be spread by schools. This is about mass gatherings. One of the prime places of
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mass gatherings are houses of worship. I understand it’s a sensitive topic, but that is the truth. Period. You want to solve the problem? Acknowledge the problem.
87. Cuomo presented no evidence, because there is none, that houses of worship or
religious schools are “the problem” and not “non-essential businesses.”
88. The day before, during his press briefing on October 5, Exhibit 3-2, Cuomo’s anti-
religious bias and his targeting of religion, in particular Orthodox Judaism, for “Red Zone”
designation, with closure of religious schools and de facto closure of synagogues and churches,
was even more apparent:
• “Religious gatherings, especially in these communities. New Rochelle, first hotspot, was an Orthodox Jewish man who went to a temple, hundreds of people. And then a wedding. Hundreds of people. Orthodox Jewish gatherings often are very, very large….
• “We know religious institutions have been a problem. We know mass gatherings are the super spreader events. We know there have been mass gatherings going on in concert with religious institutions in these communities for weeks. For weeks. I don’t mean little violations. You’re only supposed to have 50, they had 55. I’m talking about, you’re only supposed to have 50 outdoors, they [Orthodox Jews] had 1,000. These are pictures from the past couple of weeks. And these are just emblematic….
• “You’ve all seen pictures like this for weeks [indicating photos of two large Orthodox Jewish gatherings outdoors]. See Exhibit 3-2. What did you think was going to happen? What do you think was going to happen? Religious institutions are mass gatherings and raise the greatest potential…. The one [photo] on the right is more recent than the one on the left. Okay. But they’re in the recent past.12
• “If we’re going to keep religious institutions open, it can only be with two conditions. One, the community must agree, whether it’s the Jewish community, whether we’re talking about Black churches, whether we’re talking about Roman Catholic churches, the religious community has to agree to the rules. And they have to agree that they are going to follow the rules and they have to agree that they are going to be a full partner in the enforcement of the rules. That’s condition one. I’m going to meet with members of the ultra-Orthodox community tomorrow. I want to have
12/ In fact, the photo on the left, depicted in Exhibit 3-7 was taken fourteen years ago during the funeral of a revered Rabbi, when a crowd of Orthodox Jews gathered to pay its respects.
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that conversation directly myself. This cannot happen again. If you do not agree to enforce the rules-If you do not agree to enforce the rules, then we’ll close the institutions down. I am prepared to do that.” …
• “I’m going to be meeting with the Orthodox community tomorrow. See if they will agree to live and abide by the rules and advocate compliance. If the rabbi advocates compliance, that would be a very positive start. If the communities don’t agree with the rules, which is possible, I had some conversations where some religious leaders believe they have herd immunity, which is not true. Some people believe have followed politics and think that masks are ineffective, and this is all a hoax. That’s not true, but if they don’t agree, then the state will take action….
• “Can you put up the picture of the two [Orthodox Jewish] congregations again?...
• “Meet with the Orthodox community, see if they will agree to live by the rules. If they do, then we need to put in together a statewide enforcement task force and the local governments have to give me enough personnel to make it work. And that will be statewide including New York City….
• “You’re dealing with government saying to religions, you shouldn’t have more than X people in your church or your mosque or your temple. That’s a politically uncomfortable situation. I have to say to the Orthodox community tomorrow, if you’re not willing to live with these rules, then I’m going to close the synagogue….
• “I’m going to say to the Orthodox community tomorrow, if you don’t agree, then we will have to close down your religious institutions. I’m going to have to say that to the black ministers.”
89. As was the case on October 6, Cuomo presented no evidence, there being none, that
Orthodox Jewish or other religious gatherings or any religious school posed a particular threat to
public health in terms of undefined “clusters,” and no evidence that even a single hospitalization
or death in his “Red Zone” had occurred because of religious gatherings as opposed to other
gatherings in Brooklyn, including massive demonstrations for George Floyd and Black Lives
Matter as noted in plaintiffs’ Original Complaint. ECF No., ¶¶ 60-76.
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90. The only “evidence” Cuomo presented on October 5 was two photographs of Orthodox Jewish religious gatherings he represented were taken recently, as shown above, when in fact the photograph on the left, as depicted in Exhibit 3-7, was taken fourteen years ago during the funeral of a revered Rabbi, when a crowd of Orthodox Jews gathered outdoors to pay its respects. But while Cuomo objects to this gathering of Orthodox Jews for a religious purpose, he made no objection to far more massive gatherings for a political purpose in connection with the death of George Floyd. See comparison photos at Exhibit 3-7.
91. During the October 5 press briefing, Cuomo was confronted with this Court’s injunctive order of June 26 and was asked how he could order the closure of “religious institutions” in view of the injunction. In answer, as supplemented by his secretary, Melissa De Rosa, Cuomo revealed his contempt of this Court’s order and his plan to circumvent it by closing down all “nonessential” businesses along with synagogues and churches in his “Red Zone” based on a few positive COVID-19 test results, with no specification of the number of positive tests required or what constitutes a “cluster”:
Louis: (44:48) Do you believe you have the legal authority to close down religious institutions [inaudible 00:44:49] wasn’t there a recent court order barring you from doing that? Governor Andrew M. Cuomo: (44:52) We believe we have the legal authority. We will assert the legal authority. We have been sued by the religious organizations. Our legal authority was upheld. I don’t like getting into a litigious situation with the religious community. I have enough questions that I have to answer when I get to the Pearly Gates. I don’t want to also be questioned as to why I was sued by the Catholic church or the Jewish community for closing temples. So I have enough issues on my plate. But yes, we believe we have the legal authority. Did you want to say something?... Melissa DeRosa: (46:15):
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The lawsuit was over whether or not it was fair that in a religious institution, you were taking a different standard than any other business. And the court at the time went with the businesses. But what the governor’s describing as if we’re moving into a situation where we’re indiscriminately saying a mass gathering number in a certain region based on infection rate would be lowered, let’s call it 10 people. I’m not saying that’s what it’s going to be. But just for example sake, 10 people, then you’re not saying a religious institution is being treated differently than any other institution because the law would be applied evenly throughout. Does that make sense?
92. As the October 5 press briefing reveals, Cuomo evidently also assumed that, in
defiance of this Court’s injunction, he could continue to maintain a 50-person limit on outdoor
gatherings—which he has now totally forbidden in his “Red Zone”—including any religious
gatherings in which the original five plaintiffs in this action participate:
Governor Andrew M. Cuomo: (16:23)
Religious gatherings. The City's proposal does not close religious institutions. We know religious institutions have been a problem. We know mass gatherings are the super spreader events. We know there have been mass gatherings going on in concert with religious institutions in these communities for weeks. For weeks. I don't mean little violations. You're only supposed to have 50, they had 55. I’m talking about, you're only supposed to have 50 outdoors, they [the Orthodox Jews] had 1,000. These are pictures from the past couple of weeks. And these are just emblematic.
93. Cuomo so declared despite the Court’s June 26 ruling that Cuomo’s and de Blasio’s
approval of mass gatherings for the political causes they favor required elimination of outdoor
gathering limitations altogether.
94. During the same press briefing, Cuomo further revealed that he was abandoning his
and de Blasio’s original idea of Zip Code-based closures of churches and synagogues along with
disfavored “non-essential” businesses due to undefined “clusters” because that would be seen as
“arbitrary and capricious,” given that one could avoid the closure by simply walking across the
street into a different Zip Code:
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And if you don’t do it right, it’ll just be arbitrary and capricious and then they’ll bring you into court. And they’ll say, it’s just because I happened to be in the zip code and one side of the street, the deli’s open on the other side of the street, the delis closed. What sense does that make? All you’re doing is bringing the people across the street. So what is the best area? Once we have that done, then I don’t have a problem with closing the [non-] essential businesses. Then you determine for how long by what data, et cetera… 95. Cuomo’s Red, Yellow and Orange zone approach, however, is equally arbitrary and capricious because it is just as easy to leave one of his color-coded zones by crossing the street at its perimeter, as shown on the map set forth above. 96. As The New York Post reported, Cuomo’s announcement of the CAI on October 6, with its de facto closure synagogues in “Red Zone” of Brooklyn by limiting their capacity to t10 people, betrays a promise he made to the Jewish community only hours before on the same day, during the meeting he said he would was going to have with its representatives during the press conference on October 5. 97. During the October 6 meeting by teleconference, and consistently with this Court’s June 26 injunction, Cuomo said any restrictions on synagogue or church worship would not be tighter than 50% of indoor capacity, which was the rule for the “Phase 2 Industries” to which this Court’s injunction refers as the comparator: Gov. Andrew Cuomo told Jewish religious leaders that limiting houses of worship to 50 percent capacity was sufficient to beat back the coronavirus surge — only to announce tighter restrictions just hours later. The governor spoke around 9 a.m. Tuesday with honchos from Orthodox Jewish communities across New York, seeking their commitment to help contain new outbreaks in Brooklyn and Queens, as well as a handful of upstate communities…. Cuomo told the leaders that a strict limit on the number of people in synagogues and other houses of worship was necessary, but indicated that it would be set at 50 percent.
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“We have to follow the 50 percent in the synagogues … otherwise, I’m telling you, we’re gonna have to wind up going back to close down,” he said, according to the transcript.
“We’re going to enforce the rules but the 50 percent is OK.”
See Exhibit 3-4.
98. Hours later, however, Cuomo announced his CAI regime, which had obviously
been in the planning stages at the very moment he made his false promise to the leaders of
Brooklyn’s Jewish community. As The Post further reports: “The Hasidic Jewish community in
Borough Park, Brooklyn did not take kindly to the blindside announcement, launching a fiery and
largely-unmasked protest late Tuesday into early Wednesday that saw two photographers
beaten — and no NYPD intervention.”
99. The Jewish community publication Hamodia reported on the betrayal as follows:
During the call with Jewish leaders Tuesday morning, Cuomo indicated that if community leaders enforced the 50% guideline, shuls would not be closed. He said, “The current rule is no more than 50%. In any indoor gathering 50% of capacity…in a synagogue in any venue, any private venue. It’s 50% of capacity. That’s the current law. We have to follow that law. If we don’t follow that law then the infection rate gets worse. Then we’re gonna have to go back to close down. And nobody wants to do that. But I need your help in getting the rate down, and the rate will come down. If we follow the rules on the mask and the social distancing and the 50%.” Later that day, the governor announced that houses of worship in coronavirus ‘hotspots’ could allow a maximum of ten people at services, and non-essential businesses in those areas would be closed, in addition to his Monday announcements that schools in hotspots would be closed. A participant on the call who spoke to Hamodia on the condition of anonymity expressed frustration with how it transpired, and stressed that Cuomo never indicated he was prepared to take such extreme measures when it came to shuls. “The governor stabbed us in the back by announcing this unprecedented lockdown, and he has the audacity to say that he discussed it with Orthodox leaders and they were very receptive. This is just unbelievable. This is something that our community will never forget. We were looking forward to the opportunity to finally speak directly to the governor, as we were promised….
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Instead the governor pretended that he was ready to listen to us…he lied to us. After telling us that he’ll limit shul participation to 50% capacity, he placed a limit of 10 people. We all feel used, targeted and enraged.”
See Exhibit 3-5.
100. Meanwhile, as shown above, defendants have no evidence that their undefined and
numerically unspecified “clusters” of positive COVID-19 test results, falsely presented as “cases”
of COVID-19—the “casedemic” that replaces spent pandemic—pose any threat to public health
that requires suspension of constitutional rights in the “Red Zone,” the “Orange Zone”, the
“Yellow Zone,” or anywhere else in New York State.
101. On the contrary, on October 6, de Blasio admitted that the supposed “surge” in
“cases”—meaning, again, a few positive (and unreliable) test results do not involve actual illness—
has not been accompanied by any increase in hospitalizations:
Mayor: …. What we're seeing so far is actually the number of hospitalizations has not moved much. Although the positivity levels for coronavirus have increased, but still low compared to what they were in the past, so meaning within – among the folks who were in the hospital – but we certainly have to be ready for a higher level of hospitalizations. I would say right now, if this is our starting point, we're in a much better place than we were obviously in the spring, because whatever is happening now has not moved very quickly in terms of hospitalizations. But yeah, we have to be ready in case of any scenario. So go ahead, Dr. Katz.
See Exhibit 3-6 at 6.
102. De Blasio’s admission that there is no hospital emergency in New York City was
seconded by his medical advisor, Mitchell Katz, President and CEO of NYC Health + Hospitals:
Thank you, Mr. Mayor. The 11 hospitals of Health + Hospitals have been a great barometer of the city activity for COVID. We saw many of the trends ahead of anyone else in the last round. I'm very pleased that right at the moment, there are only two patients in the 11 hospitals who currently are on a ventilator due to COVID. So, it is very low, but we nonetheless course have plans for how we would deal with the surge if it were to happen….
Id.
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103. As shown by the facts pleaded above, the CAI is a pseudo-medical sham that is also a bureaucrat’s dream because it is based on arbitrary, capricious and publicly undisclosed standards designed to perpetuate a mass suppression of constitutional rights seven months into a “lockdown” that is manifestly no longer justified as the State’s own data, noted above, show conclusively.
THE PARTICULAR IMPACT OF THE CHALLENGED RESTRICTIONS ON PLAINTIFFS
Plaintiffs Soos and Stamos 104. As of the date of this Amended Complaint, original plaintiffs Soos and Stamos, who preside over Catholic churches and minister to their flocks the North Country, see incorporated ¶¶ 77-102 of the original Complaint, are not yet subject to the CAI with its Red, Orange and Yellow zones or the terms or EO 20-2.68, including its penalties. 105. Given Cuomo’s past conduct, however, including his constantly shifting policy goals and arbitrary metrics for prolonging his now seven-months long declaration of emergency and his usurpation of ever-expanding “emergency powers,” plaintiffs Soos and Stamos could come within the reach of this latest rights-restricting scheme at any moment, depending on how many COVID-19 tests are performed and how many are positive, and whether the DOH, empowered by Cuomo, declares the North County counties in which they minister have reached “a level that compromises the State’s containment of the virus”—whatever that may mean from one day to the next in the hidden recesses of Cuomo’s health bureaucracy. See Exhibit 1-1 at 1. 106. Accordingly, plaintiffs Soos and Stamos join the “Red Zone” plaintiffs in seeking a TRO and permanent and final injunctive relief.
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Infant Plaintiffs P.L and G.L. 107. Newly added infant-Plaintiffs P.L. and G.L. are sincere practitioners of Catholicism. Accordingly, infant plaintiffs G.L. and P.L worship at Good Shepherd Catholic Church in Brooklyn and are students at Good Shepherd Catholic Academy (“Good Shepherd”). 108. Both the church and its school are in the “Red Zone” in which all schools must be closed by October 9 under EO 202.68 and the church must be limited to only ten people inside during worship. 109. Good Shepherd school is a fully recognized educational institute that meets all requirements under the New York State Department of Education. At Good Shepherd, InfantPlaintiff P.C.L is in second grade and exercises his constitutional right to a religious education. 110. At Good Shepherd, infant-plaintiff G.L. is in first grade and exercises his constitutional right to a religious education and formation, including daily religious instruction and also practices the Catholic faith daily in that school setting. G.L. is studying the Catholic faith in preparation for receiving the Holy Sacrament of First Communion next school year. 111. Infant-plaintiff G.L. has a speech and language disability and was in the process of receiving speech therapy and occupational therapy at Good Shepherd. Due to Good Shepherd’s forced closure by Cuomo and de. Blasio, G.A.L is unable to receive adequate speech therapy services, occupational therapy services and a regimented classroom setting required for him to thrive and address his disability. 112. At Good Shepherd, in addition to receiving a religious formation in keeping with his constitutional rights, infant plaintiff P.L. also receives specific daily religious instruction of the Catholic faith and practices the Catholic faith daily in the school setting.
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113. In particular, infant plaintiff P.L. is studying to receive the Holy Sacrament of First Communion this school year, currently scheduled for May 2021. The Holy Sacrament of First Holy Communion is of utmost importance to the Catholic faith. It is the time when a child is considered having the age of reason and understanding of their faith, so that the child is able to accept the Sacrament of the Eucharist, which represents the body and blood of Jesus Christ. By receiving the Eucharist, the child is initiated into the Eucharistic community, which means the child now has the honor and privilege of celebrating the sacrifice of Jesus Christ for spiritual benefit unto salvation.
114. By order of defendants de Blasio and Cuomo, all schools in New York City remained closed throughout the remainder of the 2019-2020 school year, following Cuomo’s original “disaster emergency” declaration in March 2020.
115. On July 13, 2020, Governor Cuomo sated during a press-conference that schools would be allowed to reopen in regions that are Phase IV of NYFP. On July 20, 2020, New York City entered Phase IV.13
116. On August 7, 2020, via a tele-conference, Cuomo permitted the opening of schools in New York State, stating “by our infection rates, all school districts can open.” Cuomo went on to say “every school district has submitted plans to the Department of Health and State Education Department…Department of Health has the plans. Department of Health can disapprove plans if they’re not responsible from a health point of view.” Cuomo stated that effectively all schools in the state could open if their re-opening plans were approved by the DOH.14
13 (https://www.governor.ny.gov/news/governor-cuomo-announces-new-york-city-clearedglobal-health-experts-enter-phase-four-reopening) 14See https://www.rev.com/blog/transcripts/ny-gov-andrew-cuomo-conference-call-transcriptaugust-7-opening-schools
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117. In early August of 2020, Good Shepherd submitted its plan for re-opening to the New York State Department of Health, which was subsequently approved.
118. On September 9, 2020, Good Shepherd re-opened with a total population of approximately 350, inclusive of staff and of students, who range from nursery school through eighth grade.15 In accordance with safety protocols, this population was present on a rotatingbasis, so as to keep the onsite population limited for precautionary purposes.
119. From September 9, 2020 to October 5, 2020, approximately a month, Good Shepherd operated with all protocols in place and in accordance with the plan approved by the DOH. Good Shepherd’s protocols far exceeded both the requirements under the executive orders and the recommendations set forth by CDC.
120. From September 9, 2020 to October 5, 2020 Good Shepherd operated with zero positive Covid-19 cases.16
121. On Monday, September 29, 2020, however, the Zip Code 11229 was designated by Cuomo a COVID-19 “hotspot” for having a total of twelve positive test results on the day prior, with only 299 tests having been administered. The 11229 Zip Code has a population of approximately 80,000 people, and the testing sample size was too small to be statistically representative.17 Yet in this 80,000- person postal zone, twelve positive test results were deemed a “hotspot”.18
15See https://schoolcovidreportcard.health.ny.gov/#/schoolData;schBedsCodeId=332200126049; dsBedsCodeId=undefined;schoolType=Private%20School;redirectToHome=true). 16 See https://schoolcovidreportcard.health.ny.gov/#/schoolData;schBedsCodeId= 332200126049; dsBedsCodeId=undefined;schoolType=Private%20School;redirectToHome=true 17See https://www.unitedstateszipcodes.org/11229/) 18See https://www.governor.ny.gov/news/governor-cuomo-meet-orthodox-jewish-communityleaders-address-covid-19-clusters
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122. One day later, on Tuesday, September 30, Zip Code 11229 was again labelled a “hotspot” based on the numbers form the day before. On that day, a mere eleven tests were positive out of a total of 286 tests performed the day prior in this over 80,000-person community.
123. The raw numbers justifying the “hotspot” designation were never released again after September 30, 2020, when a mere eleven positive cases among 80,000 persons were deemed a “hot spot.” Defendants are apparently hiding this data as it is plainly too scanty to justify the onerous restrictions imposed by the CAI and EO 202.68.
124. On October 6, 2020, under the guise of narrowing the Zip Code “hot spots,” during the aforesaid press-conference on that date Governor Cuomo expanded the zones to cover a large portion of Brooklyn, and virtually all of South Brooklyn, including the vast majority of the 11229 postal zones. The zones were no longer designated by Zip Code but were instead divided into the above-noted Red, Orange and Yellow zones of the CAI.
125. Under EO 202.68, in what is now considered a “Red Zone,” all schools, including Good Shepherd, have been ordered to close after they had already been open for month with no actual health crisis having occurred, nor are they permitted to reopen even if the Red Zone becomes an Orange zone, as shown above.
126. While Good Shepherd remains closed with no specific reopening plan in place, both Mayor DeBlasio and Governor Cuomo have admitted that the schools are not the cause for any supposed “surge” in COVID “cases—meaning a few positive (but unreliable) tests of people who are not even sick. As Mayer DeBlasio admitted on October 4, 2020: “I want to emphasize, we have seen very little coronavirus activity in our schools. We have a situation room that’s been monitoring constantly. This is not because we have seen a number of specific
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problems in our schools, our public schools, we have not. This is out of abundance of caution.”19
127. Further, during a press conference on October 6, 2020, de Blasio revealed that “just the last few days we’ve gotten 1,351 tests results from the 35 schools in those nine top ZIP codes and only two positive tests among the 1,351 results we’ve gotten so far.20
128. The forced closure of Good Shepherd, based on trivial number of positive COVID19 tests, has deprived infant-plaintiffs P.L. and G.L of their constitutional rights to worship and to a religious education and formation.
129. The limitation of indoor worship to merely ten persons has also deprived infant plaintiffs P.L. and G.L of their constitutional rights to free exercise of religion, freedom of speech and freedom of assembly because that severe capacity limitation guarantees that they will be excluded from any number of indoor services, with even outdoor services being prohibited under EO 202.68, and from their religious schools.
Plaintiffs Mayerfeld, Perr, Schonbrun and Avigdor 130. For the reasons set forth above, EO 202.68 places plaintiffs Mayerfeld, Perr and Schonbrun in exactly the same situation they were in concerning indoor worship before this Court granted injunctive relief on June 26: with their synagogues limited to only ten persons, only the requisite minyan can attend services, with families and everyone else excluded as pleaded in ¶¶ 103-115 of the original complaint, which have been incorporated herein by reference.
19 See https://www1.nyc.gov/office-of-the-mayor/news/694-20/transcript-mayor-de-blasio-holdsmedia-availability (emphasis added). 20 (See https://www1.nyc.gov/office-of-the-mayor/news/698-20/transcript-mayor-de-blasioholds-media-availability
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131. E.O. 202.68, however, creates an even worse situation than existed before this Court lifted all outdoor gathering restrictions with its June 26th injunction. Now, no outdoor religious gathering of any size is permitted in the “Red Zone,” not even the ten persons permitted outdoors under the executive orders as challenged in the original Complaint. See original Complaint, ¶¶ 103-121; Exhibit 1-1. And the penalty for violating this outrageous restriction is $15,000,000 for organizing, promoting or even encouraging an outdoor religious gathering.
132. Newly added plaintiff Avigdor, as President of Congregation Ahavas Dovid, also located in the Red Zone, suffers the same rights deprivations as Mayer, Perr and Schonbrun, as well as being deprived of any operation of the synagogue over which he and its Rabbi preside. Plaintiff Avigdor’s religious duties include assembling the minyan and arranging for services and the Bible readings, including those now underway during Sukkot, as described below, which cannot be limited to a mere ten men. EO 202.68 and the CAI have rendered the operation of his synagogue untenable.
133. Even if the “Red Zone” eventually becomes defendants’ new “Orange Zone,” “houses of worship” are still limited to no more than 33% of capacity or 25 people, whichever is less. This is true even though numerous types of non-essential Phase 2 businesses are allowed to open without such limitations, as shown above, as long as they are not “high-risk” businesses such as gyms and salons. See Exhibits 1-1 (EO 202.68 at 2) and 2-1. Moreover, as driving or use of mass transit is prohibited to Orthodox Jews on the Sabbath, journeys outside the zones to other synagogues are not possible.
134. This Court’s June 26 injunctive order preliminary enjoined defendants from imposing gathering-size limits on the original plaintiffs any more restrictive than those imposed on NYFP Phase 2 Industries. See Order, ECF No. 35 at 35 (“For the reasons explained above,
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appropriate injunctive relief here is a restraint on defendants from enforcement of any indoor gathering limitation against plaintiff greater than imposed for Phase 2 industries.”)
135. Because many Phase 2 non-essential businesses are not subject to the 33% or 25person rule in the Orange Zone under EO 202.68, defendants are apparently in contempt of court to the extent they intend to impose such a restriction plaintiffs Schonbrun, Perr, and Mayerfeld (whenever they attend a synagogue in the Orange Zone or if the Red Zone changes to an Orange Zone).
136. Further, to the extent defendants deem any of Plaintiffs’ outdoor worship activities to be “non-essential” gatherings—prohibited in the Red Zone; limited to 10 people in the Orange Zone; and limited to 25 people in the Yellow Zone—they are in contempt of this Court’s order that defendants be restrained from “enforcement of any limitation for outdoor gatherings against plaintiffs,” (ECF No. 35 at 35), given that essential outdoor gatherings still remain unrestricted. (EO 202.68 at 2.)
137. In Defendants’ new “Red Zone,” “houses of worship are limited to no more than 25% of capacity or 10 people, whichever is less, even though, as already shown, EO 202.68 plainly exempts “essential gatherings” and allows all manner of “essential businesses” even if they involve large groups of people, in close proximity, for extended periods of time, such as food-processing plants, warehouses, homeless shelters, and more. See Ex. 2-___.
138. But this Court’s June 26th opinion plainly recognized that even “Phase 2 industries involve the congregation of people for a length of time,” and Defendants thus had to satisfy strict scrutiny for treating plaintiffs differently (i.e., to not allow them to worship in churches and synagogues at 50% of capacity, which was the going occupancy rate for Phase 2 industries). (ECF No. 35 at 30.)
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139. However, many essential businesses, too, “involve the congregation of people for a length of time,” and their exemption under EO 202.68 and the accompanying Guidance triggers the same constitutional harm that existed prior to this Court’s June 26th Order. Therefore, Defendants appear to be in contempt of court by restricting Plaintiffs’ indoor worship to a 10people maximum in the Red Zone while allowing offices, retail stores not inside of shopping malls, and other similarly situated businesses to operate with no such limitation.
140. Plaintiffs Mayerfeld, Perr, Schonbrun and Avigdor are all imminently threatened by the EO 202.68’s limitation of indoor capacity in synagogues to a maximum of ten persons, the bare minimum for any Jewish worship service. In particular, they seek a temporary restraining order allowing access to the synagogues by 6 p.m. on October 9, which marks the onset of Shemini Atzeret.
141. The Jewish high holy days of Sukkot (or Sukkos) began this year On Friday evening October 2nd and ends on Sunday night October 11. The holiday commemorates the wondering of the Israelites in the wilderness and the protection provided by G-d to them at that time. The first two days of and last two days of the holiday are days when there are various restrictions in place similar but not identical to the Sabbath. So, for instance, observant Jews cannot use telephones or computers on those days although they may carry items outside, provided it is not the Sabbath day as well.
142. The Intermediate days between the first two days and last two days are known as Chol Hamoed. Most activities, including going to work are permitted on these days. The intermediate days fall out this year from Monday, October 5th through Friday October 9th.
143. All of the days of this festival are considered joyous and are normally a time of family gathering and festive meals. Special prayers are recited in the synagogue. There are two
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unique observances central to the holiday. One is the Sukkah or hut. This is a temporary structure with a roof made from branches leaves or other wood or vegetation like bamboo or something similar. Most households will build their own Sukkah in their driveway or backyard or the like. People who are unable to build a Sukkah may rely on a communal Sukkah built by most synagogues. The Sukkah is used for eating and sleeping and is adorned with decorations.
144. In addition to the aspect of remembering the protection of God and the huts in the wilderness, there are many deep spiritual associations with this observance. For instance, the notion of going out from a permanent dwelling and living in a temporary dwelling is meant to remind us that this life is temporary and that one ought to focus one’s efforts on perfecting oneslf spiritually for the next world. which is eternal.
145. Many synagogues will hold celebratory observances in their Sukkah during the intermediate days to commemorate the drawing of the water for the water libations in the ancient Temple which were brought during this holiday. These are accompanied by singing and live music in large groups. All these aspects of Sukkah are apparently forbidden in the “Red Zone” as a “nonessential” outdoor gathering under penalty of a $15,000, as provided in EO 202.68.
146. Another major aspect of religious observance is the four species: The Lulav-Date Palm, Etrog-Citron, Haddasim-Myrtle and Aravot-Willow. A blessing is recited over these each day except for the Sabbath. In the Synagogue each participant carries his own set o the four species and circles the Bima or central table where the Torah is read. One member of the minyan holds a Torah scroll at the Bima while everyone circles one time while saying the Hoshana (Hosanna) prayers. There is a different set of prayers each day. This cannot be done in a synagogue limited to ten persons indoors as this is an activity involving more than just the minyan. All the men and
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boys must participate, not just ten men. And it must be done in a synagogue around the Bima, the central table.
147. The 7th day of the festival which this year falls out on Friday October 9th is known as Hoshana Rabbah or Great Hoshana. On Hoshana Rabbah all the scrolls are removed from the Ark and 7 circuits are made. It is a solemn prayer service with the Cantor donning a white garment called a Kittel as on Yom Kippur. It is actually the culmination of Yom Kippur and is considered a final chance to pray for a good year and forgiveness following Rosh Hashana and Yom Kippur. Every man and boy must participate, not just a minyan of ten.
148. The Eighth day of the Holiday (Saturday October 10) is named Shemini Atzeret. Special prayers are said and in addition to the readings from the Torah the Book of Kohelet (Ecclesiastes) is read. The Yizkor prayers for the departed are recited in the Synagogue. Perhaps most important, the Prayer for Geshem is said. Geshem is translated literally as Rain, but in addition to rain it has the deeper meaning of general sustenance and livelihood. This prayer is also a solemn prayer and part of the High Holyday theme with the Cantor once again donning the Kitel for this prayer while the whole congregation, not just ten men, attends and participates, this time including all the women.
149. The ninth day of the Festival is known as Simchat Torah (literally translated as Happiness of the Torah). This is perhaps the most joyous day of the year in a synagogue when Orthodox Jews celebrate the completion of the reading of the Torah, the Five Books of Moses. They make seven circuits with the Torah Scrolls around the Bima, in large groups comprised of all the men and boys, with women also involved by their presence.
150. Simchat Torah is a particularly important religious educational observance for children. Jewish adults have deeply fond memories of accompanying their fathers to Shul with the
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other celebrants. Such memories keep the spark of faith alive in Jewish hearts. All of this is prohibited by EO 202.68 and the CAI, which allows only ten men in the synagogue and forbids any larger gathering for this purpose, including the children. Even outside, such a gathering would be totally forbidden—not even one person—under threat of a $15,000 fine.
151. Afterwards, the congregants read the last portion of the Torah from one Scroll. Then they read the first Chapter of Genesis from another Scroll and finally a third section dealing with the holiday from a third scroll. These things, which involve all the men, with the boys and women also attending, cannot be done if only ten people are permitted in the synagogue and everyone else in the believing community is excluded, and when even attempting to do this outdoors is met with a $15,000 fine.
152. It is also customary on this day for all men, not just ten of them, to get a chance to make a blessing on the Scroll, and so the last portion is repeatedly read until all the men in the congregation have that chance. Even boys who are under the age of Bar Mitzvah are accorded this opportunity—the only day of the year when this is done. This vitally important act of worship cannot be limited to ten adult males while the rest of the community excluded from this opportunity for a great blessing.
153. For these reasons, with EO 202.68 and the CAI, defendants are directly attacking the religious observance of Hoshana Rabbah, Shemini Atzeret and Simchat Torah, three of the most important holidays celebrated in the synagogue after Rosh Hashana and Yom Kippur. These prayers, readings and services cannot be said by an individual. They require, first of all, a minyan. But limiting the congregation to the minyan while excluding the whole community—men, wives, children, relatives and others—from these crucial celebrations, and forbidding them entirely outdoors, is a radical deprivation of the free exercise of the Jewish religion.
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154. Immediate injunctive relief is needed to ensure the uninterrupted completion of these vitally important religious observances as they conclude over this weekend.
155. EO 202.68 and the CAI also interfere in the religious education and formation of the children of plaintiffs Mayerfeld, Perr and Schonbrun. This is shown by the following facts.
156. Plaintiff Mayerfeld has a son, age 17, who attends a Jewish school in the “Red Zone,” which is ordered closed effective October 9 under Order 202.68. Plaintiff Mayerfeld has two other children whose Jewish school has been closed even though it is not in the Red Zone for fear of retaliation by Cuomo and di Blasio, as plaintiff Mayerfeld has been notified by school authorities.
157. Plaintiff Perr has three school age children, two of whom, boys aged 13 and 11, attend Jewish schools in the Red Zone, now ordered closed.
158. Plaintiff Schonbrun has three school age children, an 11-year-old boy and two girls, ages 6 and 7, who attend Jewish schools in the Red Zone, now ordered closed.
159. All of the aforesaid Jewish schools are scheduled to open on Monday, October 12, after the Jewish holidays described above, but now face forced closure if they dare to open contrary to Cuomo’s and di Blasio’s will. Immediate injunctive relief is necessary to ensure the continuation of the Jewish education of plaintiffs’ children.
160. Finally, plaintiff Mayer’s personal knowledge of the neighborhoods encompassed by the “Red Zone” in which he resides, worships and educates his children shows that the “Red Zone” and the “Orange Zone” are anti-religious gerrymanders targeting Brooklyn’s Orthodox Jewish Community. This is shown by the following facts.
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161. Looking at the Red Zone from the perspective of someone who lives there, it is obvious that meticulous attention was given to precisely carve out the areas that are heavily populated by Orthodox Jews.
162. First of all, East 7th 8th and 9th streets between 18th Avenue, Cortelyou Road, Ocean Parkway and Coney Island avenue in that same Kensington Neighborhood are in the Orange Zone where many Orthodox Jews are living on those streets. There are two Large Yeshivas in that Orange area, one on East 9th Between Ditmas and Cortelyou and One on Ditmas and Ocean Parkway. Most and perhaps all of the students and teachers in those two schools come from the Red Zone.
163. The Red Zone on the North Eastern side abruptly cuts off and turns orange at Coney Island Avenue and Avenue H. The Orange area North of Avenue H is a predominantly Muslim Area, which is known as little Pakistan, and that area is not heavily populated by Orthodox Jews.
164. In the South Eastern Corner where plaintiff Mayerfeld lives, the Marine Park Neighborhood the Red Zone abruptly ends on Filmore Avenue and Marine Park and is cut in half between Red and Orange. It is an ethnically mixed neighborhood, but the bulk of the Orthodox Jewish inhabitants live in the Red Zone north of the Fillmore Avenue line.
165. The rest of the Boundaries of the Red Zone also closely follow heavily populated Orthodox Jewish Areas. For example, the area between McDonald Avenue and Coney Island Avenue and Quentib Road and Avenue Y, is heavily populated by Sephardic Orthodox Jews of primarily Syrian decent but also Moroccan and Iranian.
166. The remainder of the Red Zone is Borough Park and Midwood, populated mostly by Chassidic Jews in Borough Park and non-Chassidic Jews in Midwood together with Sephardic
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Jews. The dominant Chassidic sect in Borough Park is the Bobovs, but many other sects are also present including a large Satmer community.
COUNT I Violation of the First and Fourteenth Amendments to the U.S. Constitution
(Free Exercise of Religion) 42 U.S.C. § 1983
167. Plaintiffs re-allege and incorporate by reference the factual allegations in ¶¶ 1-166 168. Plaintiffs’ sincerely held religious beliefs compel them to preside over or participate in religious gatherings and religious education in keeping with the teachings and requirements of their respective religions. 169. The Free Exercise Clause of the First Amendment to the U.S. Constitution protects plaintiffs’ religious activities. 170. The challenged limits on gatherings under defendant Cuomo’s executive orders as alleged in the incorporated original Complaint and this Amended Complaint, including 202.68 and the CAI, substantially burden plaintiffs’ free exercise of religion by forbidding them to preside over or participate in any religious gathering in their respective houses of worship, religious schools or elsewhere in the State of New York, save under arbitrarily oppressive conditions that strictly limit the size of their congregations. 171. The challenged regulations are impermissibly underinclusive because they are riddled with exceptions while purporting to be facially neutral, fail to prohibit secular activity that endangers the purported state interest in “public health” equally or to a greater degree than the prohibited religious conduct, and burden religious conduct while not affecting substantial categories of conduct that are not religiously motivated.
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172. The challenged regulations are therefore not a neutral policy or law of general applicability and cannot be sustained unless narrowly tailored to serve a compelling state interest of the highest order.
173. The challenged regulations are not rationally related to a compelling state interest, nor are they the least restrictive means of accomplishing the purported compelling state interest of reducing the rate of community spread of COVID-19.
174. The undefined terms “non-essential gatherings” and the terms involved in EO 202.68, have no rational relation to the goal of “containing” COVID-19, which can be accomplished even more readily in a church, synagogue or religious school, where people can sit apart in pews or desks, than in the mass demonstrations defendants condone or in retail or office environments rife with direct interpersonal contacts and contact with common surfaces touched by innumerable other people.
175. The challenged regulations irrationally undermine the purported state interest by favoring numerous forms of secular activity that pose a greater risk of viral transmission than the prohibited religious gatherings and religious schools.
176. Defendants have less restrictive means of achieving any legitimate interest served by the challenged regulations, those being the same conditions on which they allow retail and nonretail businesses to operate: i.e., “social distancing” and sanitization.
177. As the pleaded facts demonstrate, the challenged regulations irrationally, invidiously, and without any legitimate, much less compelling, state purpose discriminate against religious activities in favor of secular and commercial activities, including mass demonstrations that violate the same regulations.
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178. Both facially and as applied to plaintiffs, the challenged regulations violate the Free Exercise Clause of the First Amendment as made applicable to the States by the Fourteenth Amendment.
179. In the absence of declaratory and injunctive relief, plaintiffs will be irreparably harmed.
180. Plaintiffs have no adequate remedy at law for the violation of their constitutional rights.
COUNT II Violation of the First and Fourteenth Amendments to the U.S. Constitution
(Violation of Freedom of Speech, Assembly and Expressive Association) 42 U.S.C. § 1983
181. Plaintiffs re-allege and incorporate by reference the allegations in ¶¶ 1-178. 182. The First Amendment protects plaintiffs’ right to peaceably assemble together with the members of their congregations or in religious schools. 183. Plaintiffs’ religious assemblies are intertwined with speech and expressive association, meaning the right to associate with others of like mind for a protected purpose. 184. Because the undefined term “non-essential gatherings” employed in the challenged regulations has no rational relationship to the goal of “limiting the spread” or “containing” COVID-19 which can be practiced more easily, or no less easily, in a church, synagogue or religious school than in the retail and office environments and mass demonstrations the defendants favor, the challenged regulations operate solely to discriminate arbitrarily against groups of people based on their social, political or religious purposes rather than any alleged lack of “social distancing.”
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185. Defendants have less restrictive means of regulating gatherings for the stated purpose of “reducing the rate of community spread of COVID-19.”
186. The challenged regulations do not serve any compelling or even significant government interest and are not narrowly tailored to achieve any legitimate state purpose.
187. The challenged regulations impermissibly infringe freedom of speech, assembly and expressive association without serving any compelling or even significant government interest.
188. In the absence of declaratory and injunctive relief, plaintiffs will be irreparably harmed.
189. Plaintiffs have no adequate remedy at law for the violation of their constitutional rights.
COUNT III Violation of the Fourteenth Amendment (Equal Protection – Substantive Due Process)
42 U.S.C. § 1983 190. Plaintiffs re-allege and incorporate by reference the allegations contained in ¶¶ 1187. 191. The Equal Protection Clause of the Fourteenth Amendment to the United States Constitution guarantees equal protection of the laws, which requires that the State not treat the “suspect class” of religion differently from the class of similarly situated people or pass laws that burden First Amendment rights. 192. The challenged regulations treat the class or subclass of people who exercise freedom of religion by gathering with others for that purpose, including plaintiffs, differently from
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the similarly situated class of people who gather with others for secular purposes, including the mass demonstrations defendants have exempted from their regulatory regime.
193. Moreover, the class of those who gather for religious purposes in churches, chapels, synagogues or religious schools is plainly less subject to the risk of infection or transmission than those engaged in mass demonstrations, commercial transactions involving crowded offices, large crowds every day of the week, physical exchanges, and common surfaces touched by potentially millions of people, which makes the suspect classification targeted by the challenged regulations even more irrational and invidious.
194. The challenged regulations cannot survive the strict scrutiny required of suspect classifications under the substantive due process component of the Equal Protection Clause as they are far from neutral and generally applicable and are not narrowly tailored to serve a compelling state interest.
195. The challenged regulations, both facially and as applied, also violate plaintiffs’ fundamental rights to freedom of speech, assembly and expressive association as alleged above.
196. Even if the challenged regulations did not involve a suspect classification or violate fundamental rights, their severe restriction of religious gatherings, while permitting numerous secular and commercial gatherings unrestricted as to size, including the mass demonstrations of which defendants approve, is not even rationally related to a legitimate state interest and thus cannot survive even rational basis analysis under the Equal Protection Clause.
197. Alternatively, the challenged regulations cannot survive heightened scrutiny under the “hybrid-rights” theory the United States Supreme Court has recognized for purposes of Equal Protection analysis when, as here, multiple rights are violated by a purportedly neutral law.
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198. The challenged regulations thus violate the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution, including its substantive component.
199. In the absence of declaratory and injunctive relief, plaintiffs will be irreparably harmed.
200. Plaintiffs have no adequate remedy at law for the violation of their constitutional rights.
COUNT IV Ultra Vires State Action in Violation of Federal and State Constitutional Rights 201. Plaintiffs re-allege and incorporate by reference the allegations contained in ¶¶ 1198. 202. Defendant Cuomo relies on New York State Executive Law § 29-a as the basis for the challenged regulations. Said statute provides in pertinent part as follows: 1. Subject to the state constitution, the federal constitution and federal statutes and regulations, the governor may by executive order temporarily suspend specific provisions of any statute, local law, ordinance, or orders, rules or regulations, or parts thereof, of any agency during a state disaster emergency if compliance with such provisions would prevent, hinder, or delay action necessary to cope with the disaster…. a. no suspension shall be made for a period in excess of thirty days, provided, however, that upon reconsideration of all of the relevant facts and circumstances, the governor may extend the suspension for additional periods not to exceed thirty days each; b. no suspension shall be made which does not safeguard the health and welfare of the public and which is not reasonably necessary to the disaster effort;… e. any such suspension order shall provide for the minimum deviation from the requirements of the statute, local law, ordinance, order, rule or regulation suspended consistent with the disaster action deemed necessary….
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203. Executive Law § 29-a provides no authority for the plethora of detailed positive edicts Cuomo has promulgated by executive fiat, regulating virtually every aspect of the lives of some 8 million people in the State of New York, including plaintiffs’ exercise of First Amendment rights as pleaded above.
204. Before March 3 of 2020, § 29-a conferred no authority Cuomo to issue freestanding, positive directives regulating every detail of the public lives of New Yorkers on the pretext of an outbreak of disease. On that date, however, days before Cuomo declared his neverending emergency, he signed into law an ad hoc amendment to § 29-a that expanded its definition of “disaster emergency” to include “disease outbreak” and authorized him not only to suspend or modify laws and regulations temporarily but also to issue “any directive during a state disaster emergency…” Cf. NY LEGIS 23 (2020), 2020 Sess. Law News of N.Y. Ch. 23 (S. 7919) (emphasis added)
205. This sweepingly overbroad grant of authority to issue “any directive” is still supposed to be limited not only by “the state constitution, the federal constitution and federal statutes and regulations” but also as follows:
…no suspension or directive shall be made which is not in the interest of the health or welfare of the public and which is not reasonably necessary to aid the disaster effort; … … any such suspension order or directive shall provide for the minimum deviation from the requirements of the statute, local law, ordinance, order, rule or regulation suspended consistent with the goals of the disaster action deemed necessary; and N.Y. Exec. Law § 29-a (2), (b) and (e). 206. As facts pleaded demonstrate, Cuomo and the other state-level defendants acting under his authority have cast aside these restraints over the past five months not only by suspending or modifying various laws but also by issuing separate “directives” that violate the constitutional
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rights to free exercise of religion, freedom of assembly and expressive association, freedom of speech, freedom of movement and freedom from interference with personal autonomy and bodily integrity.
207. The challenged regulations are ultra vires the very statute on which defendant Cuomo relies in that Cuomo has legislated rather than confining himself to the limited process of temporarily suspending certain laws, orders, rules or regulations by executive order and making directives of “minimum deviation” from existing laws and regulations.
208. Alternatively, the state legislature has abdicated its legislative authority to Cuomo in violation of the New York Constitution’s requirement of a separation of powers, “implied by the separate grants of power to each of the coordinate branches of government.” Clark v. Cuomo, 66 N.Y.2d 185, 189; N.Y. Const., art. III, § 1; art. IV, § 1.
209. The New York State Constitution provides for a complete separation of powers among the three “co-ordinate and co[-]equal branches” of government: the executive, the legislative, and the judicial. N.Y. Const., art. III, sec. 1; art. IV, sec. 1; and art. VI.
210. Article III, Section 1 of the New York State Constitution provides: “The legislative power of this state shall be vested in the senate and assembly.” N.Y. Const., art. III, sec. 1.
211. Nowhere in the New York State Constitution is the Chief Executive, defendant Cuomo, given or delegated any legislative authority. Rather, “The [G]overnor shall have power to convene the legislature, or the senate only, on extraordinary occasions. At extraordinary sessions convened pursuant to the provisions of this section no subject shall be acted upon, except such as the [G]overnor may recommend for consideration.” N.Y. Const., art. IV, sec. 3.
212. The Governor’s exercise of emergency power during the COVID-19 outbreak required that defendant Cuomo convene the legislature on an extraordinary basis in order to take
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whatever legislative measures were deemed reasonably necessary according to the separation of powers. Defendant Cuomo has never convened the legislature.
213. In any case, the results violate not only federal but also state constitutional protections, including the New York Constitution’s guarantee of freedom of worship (Art. 1, § 5), freedom of speech and assembly (Art. 1, §§ 8 and 9) and equal protection of the laws (Art. 1, § 11).
214. Defendant Cuomo’s ultra vires acts, as enforced by him and the other named defendants should be declared void and unenforceable, as they constitute state action in violation of all the constitutional rights the challenged regulations infringe, as pleaded above.
215. In the absence of declaratory and injunctive relief voiding and enjoining defendants’ ultra vires acts, plaintiffs will be irreparably harmed.
216. Plaintiffs have no adequate remedy at law for the violation of their constitutional rights.
PRAYER FOR RELIEF WHEREFORE, plaintiffs respectfully pray that this Court grant the following relief: A. A temporary restraining order, followed by a preliminary and final injunction restraining defendants, and all those acting at their direction or in concert with them, from enforcing any closure of, or gathering limits on, plaintiffs’ houses of worship and religious schools, either indoor or outdoor, including the limits on “nonessential gatherings” and occupancy of houses of worship and religious schools in effect at the time of this Court’s injunction of June 26, 2020 and now in effect with EO 202.68 and the CAI;
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B. In the alternative, compelling defendants to apply to plaintiffs’ religious gatherings, houses of worship and religious schools no greater limits than they had placed on essential retail businesses and mass demonstrations as of the date of this Court’s preliminary injunction of June 26, 2020;
C. A declaratory judgment that (1) the challenged executive orders and related “guidance,” both those in effect at the time of this Court’s June 26 preliminary injunction, and those now in effect under EO 202.68 and the CAI, are unconstitutional, both individually and taken together, both facially and as applied to plaintiffs; and (2) that the challenged executive orders and related “guidance” are ultra vires Executive Law § 29-a, void and unconstitutional, both facially and as applied to plaintiffs under both the federal and state constitutions;
D. An award of costs of this litigation, including reasonable attorneys’ fees, pursuant to 42 U.S.C. § 1988.
E. Such other and further relief as this Court deems just and proper. Dated: October 9, 2020
Respectfully submitted,
________________________________ CHRISTOPHER A. FERRARA, ESQ. (Bar No. 51198) 148-29 Cross Island Parkway Whitestone, Queens, New York 11357 Telephone: (718) 357-1040 cferrara@thomasmoresociety.org Special Counsel to the Thomas More Society Counsel for Plaintiffs
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VERIFICATION

I, DANIEL SCHONBRUN, am over the age of 18 and am a Plaintiff in this action. The

allegations that pertain to me in this VERIFIED AMENDED COMPLAINT are true and correct,

based upon my personal knowledge (unless otherwise indicated), and if called upon to testify as

to their truthfulness, I would and could do so competently. I declare under penalties of perjury,

under the laws of the United States, that the foregoing statements are true and correct.

Executed on October 9, 2020.

'.T') jy)j.h--
o� SCHONBRUN

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Case 1:20-cv-00651-GLS-DJS Document 57 Filed 10/09/20 Page 62 of 153 VERIFICATION
I, ELCHANAN PERR, am over the age of 18 and am a Plaintiff in this action. The allegations that pertain to me in this VERIFIED AMENDED COMPLAINT are true and correct, based upon my personal knowledge (unless otherwise indicated), and if called upon to testify as to their truthfulness, I would and could do so competently. I declare under penalties of perjury, under the laws of the United States, that the foregoing statements are true and correct. Executed on October 9, 2020.
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EXHIBIT 1-1 Case 1:20-cv-00651-GLS-DJS Document 57 Filed 10/09/20 Page 64 of 153

No.202.68

EXECUTIVE

ORDER

Continuing Temporary Suspension and Modification of Laws Relating to the Disaster Emergency

WHEREAS, on March 7, 2020, I issued Executive Order Number 202, declaring a State disaster emergency for the entire State of New York; and

WHEREAS, both travel-related cases and co=unity contact transmission of COVID-19 have been documented in New York State and are expected to continue;

NOW THEREFORE, I, Andrew M. Cuomo, Governor of the State ofNew York, by virtue of the authority vested in me by Section 29-a of Article 2-B of the Executive Law to temporarily suspend or modify any statute, local law, ordinance, order, rule, or regulation, or parts thereof, of any agency during a State disaster emergency, if compliance with such statute, local law, ordinance, order, rule, or regulation would prevent, hinder, or delay action necessary to cope with the disaster emergency or if necessary to assist or aid in coping with such disaster, or to provide any directive necessary to respond to the disaster, do hereby continue the suspensions and modifications oflaw, and any directives not superseded by a subsequent directive contained in Executive Orders 202.31, 202.41, 202.42, 202.43, 202.51, 202.52, 202.56, as contained in Executive Order 202.63, and Executive Orders 202.61 and 202.62 for another thirty days through November 5, 2020, and I hereby temporarily suspend or modify the following from the date of this Executive Order through November 5, 2020:

• Sections 12 and 206 of the Public Health Law, to the extent necessary to, notwithstanding any other provision of this Executive Order, provide that any individual who encourages, promotes or organizes a non-essential gathering as set forth in Department of Health regulation, shall be liable for a civil penalty not to exceed $15,000 per day; and

• Sections 12-a and 206(4) of the Public Health Law, to the extent necessary to authorize, at the direction of the Commissioner of Health or the Commissioner's representative, any local gove=ent official to assess, and the local gove=ent to retain, a civil penalty for violations of Executive Orders issued pursuant to Section 29-A of the Executive Law, or any regulations of the Department of Health, that impose requirements pertaining to maintaining social distance and wearing of face coverings, for the duration of this disaster emergency, and to conduct any hearing related to such penalties. Such penalties, if assessed on an individual basis, shall not exceed $1,000 per violation, except as otherwise provided herein.

IN ADDITION, by virtue of the authority vested in me by Section 29-a of Article 2-B of the Executive Law to issue any directive during a disaster emergency necessary to cope with the disaster, I do hereby issue the following directives through November 5, 2020:
• Tue Department of Health shall_determine areas in the State that require enhanced public health restrictions based upon cluster-based cases of COVID-19 at a level that compromises the State's containment of the virus. Certain activities shall be restricted and any permitted activities, in all three zones below, shall be conducted in strict adberence to Department of Health guidance.

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o Based upon the severity of the cluster activity, the Department of Health shall adopt in the most severe, or "red zones," the following mitigation measures: • Non-essential gatherings of any size shall be postponed or cancelled; all nonessential businesses, as determined by the Empire State Development Corporation based upon published guidance, shall reduce in-person workforce by 100%; houses of worship shall be subject to a capacity limit of 25% of maxi.mumoccupancy or 10 people, whichever is fewer; any restaurant or tavern shall cease serving patrons food or beverage on-premises and may be open for takeout or delivery only; and the local Department of Health shall direct closure of all schools for in-person instruction, except as otherwise provided in Executive Order.
o In moderate severity warning areas or "orange zones" the following mitigation measures: • Non-essential gatherings shall be liroited to 10 people; certain non-essential businesses, for which there is a higher risk associated ,vith the transmission of the COVID-19 virus, including gyms, fitness centers or classes, barbers, hair salons, spas, tattoo or piercing parlors, nail technicians and nail salons, cosmetologists, estheticians, the provision oflaser hair removal and electrolysis, and all other personal care services shall reduce in-person workforce by 100%; houses of worship shall be subject to a maximum capacity limit of the lesser of 33% of maximum occupancy or 25 people, whichever is fewer; any restaurant or tavern shall cea:seserving patrons food or beverage inside on-premises but may provide outdoor service, and may be open for takeout or delivery, provided however, any one seated group or party shallnot exceed 4 people; and the local Department of Health shall direct closure of all schools for in-person instruction, except as otherwise provided in Executive Order.
o In precautionary or "yellow zones," the following mitigation measures: • Non-essential gatherings shall be liroited to no more than 25 people; houses of worship shall be subject to a capacity limit of 50% of its maximum occupancy and shall adhere to Department of Health guidance; any restaurant or tavern must limit any one seated group or party size to 4 people; and the Department of Health shall issue guidance by October 9, 2020 regarding mandatory testing of students and school personnel, and schools shall adhere to such guidance.
• The above directive shall be effective immediately, and at such time as notice is provided to such affected areas, may be enforced and shall be enforced no later than Friday, October 9, 2020, as determined by the county in ""1lichthe red zones, orange zones, and yellow zones are located:
GI V EN under my hand and the Privy Seal of the
State in the City of Albany this sixth
day of October in the year two
thousand twenty.
BY THE GOVER.t'IOR
j}L,. c----___
Secretary to the Governor

October 8, 2020 | 2:30 pm
Information on Novel Coronavirus
Services

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OCTOBER 6, 2020 Albany, NY

GSCHoEDvULeE rnor Cu! omo Announces New

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Initiative Developed in Consultation with Leading National Public Health Experts—Dr. Noam Ross of EcoHealth Alliance, Dr. Michael Osterholm of the University of Minnesota and Former CDC Director Dr. Tom Frieden
New Initiative Maps Clusters by Density of Cases to Address COVID Hot Spots in Brooklyn, Queens, and Broome, Orange and Rockland Counties
Fines for Sponsors of Mass Gatherings Increased to $15,000
New Rules and Restrictions in Eﬀect for Minimum of 14 Days

Governor Andrew M. Cuomo today announced a new cluster action initiative to address COVID-19 hot spots that have cropped up in Brooklyn, Queens, and Broome, Orange and Rockland Counties. Working with the top public health experts, New York State developed a science-based approach to attack these clusters and stop any further spread of the virus, including new rules and restrictions directly targeted to areas with the highest concentration of COVID cases and the surrounding communities. The new rules will be in eﬀect for a minimum of 14 days.
The plan was developed in consultation with national public health experts including Dr. Noam Ross of EcoHealth Alliance, Dr. Michael Osterholm of the University of Minnesota and former CDC Director Dr. Tom Frieden.

Governor Cuomo Announces New Cluster Action Initiative

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"A cluster is just that - it's a cluster of cases, a high density of cases, and it seeps and grows from that cluster almost in concentric circles. Drop a pebble into the pond, the pebble goes in, then there's one ring, two rings, three rings, and the rings continue across the pond. When you see the cluster, you have to stop it at that point," Governor Cuomo said. "Our strategy is to crush the cluster and stop the spread, and we're announcing a special initiative to do just that. Step one, you take the most dramatic action within the cluster itself where you have the highest density of cases. Understanding that the people in that cluster interface with the surrounding communities, take additional action in the communities surrounding the cluster. Then as a precautionary measure, take action in the communities that are outlying that area."
The initiative is composed of three steps:
1. Take dramatic action within the cluster. 2. Take action in the area surrounding the cluster to stop the spread. 3. Take precautionary action in the outlying communities.
The initiative will currently apply to clusters in the following areas:
Broome County (One Area, Yellow) - Click Here for Map Brooklyn (One Area, Red, Orange and Yellow) - Click Here for Map Orange County (One Area, Red and Yellow) - Click Here for Map Queens (Two Areas, Red, Orange and Yellow) - Click Here and Here for Maps Rockland County (One Area, Red and Yellow) - Click Here for Map
The initiative will divide clusters and the areas around them into three categories with successively higher restrictions within each one:
Red Zone — Cluster Itself
Houses of Worship: 25 percent capacity, 10 people maximum Mass Gatherings: Prohibited Businesses: Only essential businesses open Dining: Takeout only Schools: Closed, remote only
Orange Zone — Warning Zone
Houses of Worship: 33 percent capacity, 25 people maximum Mass Gatherings: 10 people maximum, indoor and outdoor Businesses: Closing high-risk non-essential businesses, such as gyms and personal care Dining: Outdoor dining only, 4 person maximum per table Schools: Closed, remote only
Yellow Zone — Precautionary Zone
Houses of Worship: 50 percent capacity Mass Gatherings: 25 people maximum, indoor and outdoor Businesses: Open Dining: Indoor and outdoor dining, 4 person maximum per table Schools: Open with mandatory weekly testing of students and teachers/staﬀ for in-person settings. The New York State Department of Health will establish a percentage of teachers and students/staﬀ who need to be tested by Friday.
The enforcement of the zones will go into eﬀect as soon as tomorrow and no later than Friday.
Governor Cuomo also announced that ﬁnes for the sponsors of mass gatherings in violation of state public health rules will be increased to $15,000.

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New York's Cluster Action Initiative Guidance | Empire State Development

https://esd.ny.gov/ny-cluster-action-initiative-guidance

Case 1:20-cv-00651-GLS-DJS Document 57 Filed 10/09/20 Page 67 of 153 EXHIBIT 2-1

FOR GUIDANCE RELATED TO DETERMINING WHETHER A BUSINESS ENTERPRISE IS SUBJECT TO A WORKFORCE REDUCTION UNDER EXECUTIVE ORDER 202.6, RELATED TO NEW YORK’S PAUSE, PLEASE CLICK HERE. UPDATED: OCTOBER 7, 2020 AT 4:10 PM This guidance is issued in accordance with New York Governor Andrew M. Cuomo’s Executive Order 202.68, which directs the Department of Health to determine areas in the State that require enhanced public health restrictions based upon cluster-based cases of COVID-19 at a level that compromises the State’s containment of the virus. Certain activities shall be restricted and any permitted activities, in the three zones (Red, Orange, Yellow) described below, shall be conducted in strict adherence to Department of Health guidance. This guidance is issued by the New York State Department of Economic Development d/b/a Empire State Development (ESD), in consultation with the Department of Health, and applies to each business or entity location individually and is intended to assist businesses in determining whether they are an essential business, if they are located in areas with designated cluster activity (see below for details). With respect to business or entities that operate or provide both essential and non-essential services, supplies or support, only those lines and/or business operations that are necessary to support the essential services, supplies, or support are exempt from the workforce reduction restrictions. Where permitted to operate within the cluster action initiative, businesses and other entities must continue to follow the relevant industry-specific guidelines provided by Department of Health as available on the New York Forward website for their applicable operations and activities. Further, State and local governments, including municipalities and authorities, are exempt from these essential business reductions, but may be subject to other provisions that restrict non-essential, inperson workforce and other operations under Executive Order 202. On October 6, 2020, Governor Cuomo announced a new cluster action initiative to address COVID-19 hotspots that cropped up in various areas of New York. Working with the top public health experts, the State developed a science-based approach to contain these clusters and stop any further spread of the virus, including new rules and restrictions directly targeted to areas with the highest concentration of COVID cases and the surrounding communities. The new rules are in effect for a minimum of 14 days. The initiative is composed of three steps: (1) Reduce in-person activities and interactions within the cluster, similar to New York on PAUSE; (2) Take action in the area surrounding the cluster to stop the spread; and

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New York's Cluster Action Initiative Guidance | Empire State Development

https://esd.ny.gov/ny-cluster-action-initiative-guidance

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The initiative currently applies to clusters in the following areas: Broome County (One Area, Yellow) - Click Here for Map Brooklyn (One Area, Red, Orange and Yellow) - Click Here for Map Orange County (One Area, Red and Yellow) - Click Here for Map Queens (Two Areas, Red, Orange and Yellow) - Click Here and Here for Maps Rockland County (One Area, Red and Yellow) - Click Here for Map
Red Zone – Cluster Itself Activity restrictions include:
No non-essential gatherings of any size Houses of worship are subject to a capacity limit of 25% of maximum occupancy or 10 people, whichever is fewer Restaurants and taverns must cease serving patrons food or beverage onpremises and may be open for takeout or delivery only Schools must close for in-person instruction, except as otherwise provided in Executive Order. All non-essential businesses in the red zone, which do not meet the criteria below, shall reduce in-person workforce by 100%. Orange Zone – Warning Zone Activity restrictions include: Non-essential gatherings shall be limited to 10 people Houses of worship are subject to a capacity limit of the lesser of 33% of maximum occupancy or 25 people, whichever is fewer Restaurants and taverns must cease serving patrons food or beverage inside on-premises but may provide outdoor service, and may be open for takeout or delivery, provided that any one seated group or party must not exceed 4 people Schools must close for in-person instruction, except as otherwise provided in Executive Order. Certain non-essential businesses, for which there is a higher risk of transmission of the COVID-19 virus, shall reduce in-person workforce by 100%; such businesses include:
Gyms, fitness centers or classes Hair salons and barbershops All other personal care services including but not limited to spas, tattoo or piercing parlors, nail technicians and nail salons, cosmetologists, estheticians, the provision of laser hair removal and electrolysis Yellow Zone – Precautionary Zone Activity restrictions include: Non-essential gathers are limited to no more than 25 people Houses of worship are subject to a capacity limit of 50% of its maximum occupancy and shall adhere to Department of Health guidance

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New York's Cluster Action Initiative Guidance | Empire State Development

https://esd.ny.gov/ny-cluster-action-initiative-guidance

CasRee1s:t2a0u-rcavn-t0s0a6n5d1-tGavLeSrn-DsJmSusDt loimcuimt aennyt o5n7e sFeialetded1g0r/0o9u/p2o0r pPaargtyes6iz9eotfo145E3XHIBIT 2-1 people Schools shall adhere to applicable guidance issued by the Department of Health regarding mandatory testing of students and school personnel

For purposes of Executive Order 202.68, essential businesses allowed to remain open in any red zone(s) include:

1. Essential health care operations including

research and laboratory services hospitals walk-in-care health clinics and facilities veterinary and livestock medical services senior/elder care medical wholesale and distribution home health care workers or aides for the elderly doctors and doctors’ offices for both emergency and non-emergency appointments dentists and dental practices for both emergency and non-emergency appointments nursing homes, residential health care facilities, or congregate care facilities medical supplies and equipment manufacturers and providers licensed mental health providers licensed substance abuse treatment providers medical billing support personnel speech pathologists and speech therapy chiropractic services acupuncture physical therapy occupational therapy medically necessary massage therapy

2. Essential infrastructure including

public and private utilities including but not limited to power generation, fuel supply, and transmission public water and wastewater telecommunications and data centers airlines/airports commercial shipping vessels/ports and seaports public and private transportation infrastructure such as bus, rail, for-hire vehicles, garages hotels, and other places of accommodation, including campgrounds.
Campgrounds must take precautions to ensure campers maintain appropriate social distancing and adhere to proper cleaning and disinfecting protocols, including but not limited to maintaining six feet of distance between campers, unless wearing an acceptable face covering, excluding persons from the same household who are camping together.

3. Essential manufacturing including

food processing, manufacturing agents including all foods and beverages chemicals medical equipment/instruments

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New York's Cluster Action Initiative Guidance | Empire State Development

https://esd.ny.gov/ny-cluster-action-initiative-guidance

Caspeh1a:r2m0a-ccve-u0t0ic6a5ls1-GLS-DJS

Document 57

Filed 10/09/20

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sanitary products including personal care products regulated by the Food and

Drug Administration (FDA)

telecommunications

microelectronics/semi-conductor

food-producing agriculture/farms

household paper products

defense industry and the transportation infrastructure

automobiles

any parts or components necessary for essential products that are referenced

within this guidance

4. Essential retail including

grocery stores including all food and beverage stores pharmacies convenience stores farmer’s markets gas stations restaurants/bars (but only for take-out/delivery) hardware, appliance, and building material stores pet food telecommunications to service existing customers and accounts all other retail may operate for curbside pick-up or delivery only with no customers allowed within the establishment and only one employee physically present to fulfill orders.

5. Essential services including

2020 Census operations and activities trash and recycling collection, processing, and disposal mail and shipping services laundromats and other clothing/fabric cleaning services building cleaning and maintenance child care services bicycle repair auto repair and maintenance automotive sales conducted remotely or electronically, with in-person vehicle showing, return, and delivery by appointment only warehouse/distribution and fulfillment funeral homes, crematoriums and cemeteries storage for essential businesses maintenance for the infrastructure of the facility or to maintain or safeguard materials or products therein animal shelters and animal care including dog walking, animal boarding and pet grooming but only to the extent necessary to ensure animal health food and non-food agriculture landscaping, gardening and horticulture designing, printing, publishing and signage companies to the extent that they support essential businesses or services remote instruction or streaming of classes from public or private schools or health/fitness centers; provided, however, that no in-person congregate classes are permitted

6. News media

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New York's Cluster Action Initiative Guidance | Empire State Development

https://esd.ny.gov/ny-cluster-action-initiative-guidance

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banks or lending institution insurance payroll accounting services related to financial markets, except debt collection higher education research other office-based work not specified here may operate remotely

8. Providers of basic necessities to economically disadvantaged populations including

homeless shelters and congregate care facilities food banks human services providers whose function includes the direct care of patients in state-licensed or funded voluntary programs; the care, protection, custody and oversight of individuals both in the community and in state-licensed residential facilities; those operating community shelters and other critical human services agencies providing direct care or support

9. Construction

Construction projects may continue, but any work that can be done remotely such as office-based work must proceed remotely, to the extent practicable. Employees/personnel who are not directly involved in in-person work at the business location/construction site are prohibited.

10. Defense

defense and national security-related operations supporting the U.S. Government or a contractor to the US government

11. Essential services necessary to maintain the safety, sanitation and essential operations of residences or other businesses including

law enforcement, including corrections and community supervision fire prevention and response building code enforcement security, including security personnel for residential and commercial buildings emergency management and response, EMS and 911 dispatch building cleaners or janitors general and specialized maintenance whether employed by the entity directly or a vendor, including but not limited to heating, ventilation, and air conditioning (HVAC) and pool maintenance automotive repair cleaning, disinfection, and sanitation services occupational safety and health professionals residential and commercial moving services

12. Vendors that provide essential services or products, including logistics and technology support, child care and services including but not limited to:

logistics

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New York's Cluster Action Initiative Guidance | Empire State Development

https://esd.ny.gov/ny-cluster-action-initiative-guidance

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child care programs and services

government owned or leased buildings

essential government services

any personnel necessary for online or distance learning or classes delivered

via remote means

13. Recreation

Local government are permitted to determine whether parks and other public spaces, as well as low-risk recreational activities may be open.
If open, appropriate social distancing of at least six feet among individuals must be abided, acceptable face coverings must be worn by individuals who are over the age of two and able to medically tolerate such coverings, and frequent cleaning/disinfection measures must be in place for hard surfaces and objects frequently touched by multiple people (e.g., handrails, benches).

14. Other professional services with extensive restrictions

Lawyers may continue to perform all work necessary for any service so long as it is performed remotely.
Any in-person work presence shall be limited to work only in support of essential businesses or services; however, even work in support of an essential business or service should be conducted as remotely as possible. Real estate services shall be conducted remotely for all transactions, including but not limited to title searches, appraisals, permitting, inspections, and the recordation, legal, financial and other services necessary to complete a transfer of real property; provided, however, that any services and parts therein may be conducted in-person only to the extent legally necessary and in accordance with appropriate social distancing and cleaning/disinfecting protocols; and nothing within this provision should be construed to allow brokerage and branch offices to remain open to the general public (i.e. not clients).

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Reopening New York
Guidelines for Religious and Funeral Services
EXHIBIT 2-13

These guidelines apply to all religious and funeral gatherings, including burial and committal services, statewide.
During the COVID-19 public health emergency, all operators of religious and funeral services should stay up to date with any changes to state and federal requirements related to religious and funeral services and incorporate those changes into their operations. This guidance is not intended to replace any existing applicable local, state, and federal laws, regulations, and standards.

Physical Distancing

Mandatory

Recommended Best Practices

For any religious or funeral service, limit the congregant/attendee capacity to: • In Phase 1 regions, no more than 10 people for any
services occurring indoor or outdoor. • In Phase 2 and 3 regions, no more than 25% of the
maximum occupancy for a particular area for services occurring indoor; or no more than 25 people for services occur outdoor. • In Phase 4 regions, no more than 33% of the maximum occupancy for a particular area for services occurring indoor; or no more than 50 people for services occurring outdoor. • If separate buildings are available for use, may
have multiple groups of 10 in separate buildings at the same time in Phase 1; a maximum occupancy of 25% in separate buildings at the same time in Phases 2 and 3; or a maximum occupancy of 33% in separate buildings at the same time in Phase 4, so long as the buildings have separate entrances and exits designated and groups do not interact.
A distance of at least 6 ft. must be maintained amongst all individuals at all times, unless safety or the core activity requires a shorter distance (e.g. pallbearing) or the individuals are members of the same household. However, any singing activity must provide for a distance between individuals of 12 ft., subject to additional protective measures.

Limit in-person presence of staff to only those employees/volunteers necessary.
Modify the use and/or restrict the number of stations (e.g. podiums) and seating areas, so that staff members, volunteers, and attendees are at least 6 ft. apart in all directions and are not sharing stations or seats without cleaning and disinfection between use, unless all individuals are members of the same household.
Hold services outdoors (e.g. services for religious gatherings, graveside-only funerals) and/or provide remote service options (e.g. live streaming, AM/FM broadcast), when possible.
Offer advanced sign-ups to manage capacity.
Change or remove practices that involve close contact or sharing things among members of different households (e.g. sharing a car or limousine ride between locations, providing food/beverages for attendees before, during, or after the event or service).
Hold drive-in services. Ensure attendees remain in the vehicle in which they arrived and that they don’t interact physically with clergy, employees, or attendees in other vehicles; vehicles should contain only members of a single household, and cars must be at least 6 ft. apart or use alternate parking spaces.

Any time employees, volunteers, and/or attendees must come within 6 ft. of one another (or 12 ft., if singing), they must wear acceptable face coverings, unless they are members of the same household.

Reduce bi-directional foot traffic by posting signs with arrows in narrow aisles, hallways, or pews.

Prohibit the use of small spaces (e.g. elevators, vehicles) by more than one individual at time, unless all individuals are wearing face coverings. If occupied by more than one person, keep occupancy under 50% of maximum capacity.

Prohibit holding or shaking hands of members in different households during services or prayers.

STAY HOME.

STOP THE SPREAD.

SAVE LIVES.

Case 1:20-cv-00A6s5o1f -JuGneL2S6-,D20J2S0 Document 57 Filed 10/09/20 Page 90 of 153

Reopening New York
Guidelines for Religious and Funeral Services
EXHIBIT 2-13

These guidelines apply to all religious and funeral gatherings, including burial and committal services, statewide.
During the COVID-19 public health emergency, all operators of religious and funeral services should stay up to date with any changes to state and federal requirements related to religious and funeral services and incorporate those changes into their operations. This guidance is not intended to replace any existing applicable local, state, and federal laws, regulations, and standards.

Physical Distancing (cont’d)
Protective Equipment

Mandatory

Recommended Best Practices

Limit activities involving singing (e.g. choir, soloist, cantor, musical ensemble), unless 12 ft. of separation can be provided between individuals or additional distancing or physical barriers can reduce transmission of respiratory droplets.

Establish designated areas for pickups and deliveries.
Provide workers with an acceptable face covering at nocost to the worker and have an adequate supply of coverings in case of replacement.
Acceptable face coverings include but are not limited to cloth (e.g. homemade sewn, quick cut, bandana), surgical masks, and face shields.
Face coverings are required at all times except while seated, provided all individuals are 6 ft. apart except for immediate household members. Faith leaders, officiants, volunteers, and/or attendees must be prepared to don a face covering if another person unexpectedly comes within 6 ft. (e.g. when walking to seats).
Face coverings must be cleaned or replaced after use and may not be shared. Consult the CDC guidance for additional information on cloth face coverings and other types of personal protective equipment (PPE), as well as instructions on use and cleaning.

Place donation plates/boxes in central location with proper distancing protocols in place.
Remove religious texts from pews or benches, and encourage congregation to bring their own.
If choir/musical ensemble meets enhanced distancing measures, encourage members to launder their own gowns at home and bring their own instruments, where possible.
Adapt certain religious practices that traditionally require close contact in order to minimize contact between individuals.
Empty fonts or other shared water-related service or ceremonial activities.

If providing gowns or other garments, ensure they are cleaned and laundered between uses.

Train workers on how to don, doff, clean (as applicable), and discard PPE.

Limit the sharing of objects (e.g. religious texts, collection plates) as well as the touching of shared surfaces (e.g. pews, instruments, doors, railings); or, require individuals to wear gloves when in contact with shared objects or frequently touched surfaces; or, require individuals to sanitize or wash their hands before and after contact.

STAY HOME.

STOP THE SPREAD.

SAVE LIVES.

Case 1:20-cv-00A6s5o1f -JuGneL2S6-,D20J2S0 Document 57 Filed 10/09/20 Page 91 of 153

Reopening New York
Guidelines for Religious and Funeral Services
EXHIBIT 2-13

These guidelines apply to all religious and funeral gatherings, including burial and committal services, statewide.
During the COVID-19 public health emergency, all operators of religious and funeral services should stay up to date with any changes to state and federal requirements related to religious and funeral services and incorporate those changes into their operations. This guidance is not intended to replace any existing applicable local, state, and federal laws, regulations, and standards.

Hygiene, Cleaning, and Disinfection

Mandatory

Recommended Best Practices

Adhere to hygiene, cleaning, and disinfection requirements from the Centers for Disease Control and Prevention (CDC) and Department of Health (DOH) and maintain cleaning logs on site that document date, time, and scope of cleaning.

Provide and maintain hand hygiene stations on site, including handwashing with soap, water, and paper towels, as well as an alcohol-based hand sanitizer containing 60% or more alcohol for areas where handwashing is not feasible. Hand sanitizer must be placed throughout the location.

Provide and encourage participants to use cleaning/disinfection supplies before and after use of shared and frequently touched surfaces, followed by hand hygiene.

Ensure distancing rules are adhered to in restrooms by reducing capacity, where feasible.

Regularly clean and disinfect the location or facility and conduct more frequent cleaning and disinfection for high risk areas used by many individuals (e.g. restrooms) and for frequently touched surfaces, using Department of Environmental Conservation (DEC) products identified by the Environmental Protection Agency (EPA) as effective against COVID-19.

If cleaning or disinfection products or the act of cleaning and disinfecting causes safety hazards or degrades the material (e.g. religious artifact), put in place hand hygiene stations, supply gloves, and/or limit the number of individuals touching such material.

For funeral-related services, prohibit touching, hugging, or kissing the body of a deceased person who had confirmed or suspected COVID-19, per CDC guidance.

Prohibit shared food or beverages (e.g. self-serve meals and beverages).

STAY HOME.

STOP THE SPREAD.

SAVE LIVES.

Case 1:20-cv-00A6s5o1f -JuGneL2S6-,D20J2S0 Document 57 Filed 10/09/20 Page 92 of 153

Reopening New York
Guidelines for Religious and Funeral Services
EXHIBIT 2-13

These guidelines apply to all religious and funeral gatherings, including burial and committal services, statewide.
During the COVID-19 public health emergency, all operators of religious and funeral services should stay up to date with any changes to state and federal requirements related to religious and funeral services and incorporate those changes into their operations. This guidance is not intended to replace any existing applicable local, state, and federal laws, regulations, and standards.

Communication Screening

Mandatory
Affirm you have reviewed and understand the stateissued industry guidelines, and that you will implement them.
Post signage throughout the facility to remind individuals to adhere to proper hygiene, social distancing rules, appropriate use of PPE, and cleaning and disinfecting protocols.
Conspicuously post completed safety plans on site.

Recommended Best Practices
Develop a communications plan for employees, volunteers, and congregants, that includes applicable instructions, training, signage, and a consistent means to provide individuals with information. Use webpages, text and email groups, and social media campaigns.

Implement mandatory health screening assessment (e.g. questionnaire, temperature check) for employees, faith leaders, and volunteers (but not attendees), asking about (1) COVID-19 symptoms in past 14 days, (2) positive COVID-19 test in past 14 days, and/or (3) close contact with confirmed or suspected COVID-19 case in past 14 days. Responses must be reviewed and such review must be documented.
A person who screens positive for COVID-19 symptoms must not be allowed to enter the gathering place and must be sent home with instructions to contact their healthcare provider for assessment and testing.
If an employee or faith leader tests positive for COVID19, immediately notify state and local health departments and cooperate with contact tracing efforts, including notification of potential contacts who had close contact with the worker, while maintaining confidentiality as required by state and federal law and regulations.

Perform screening remotely (e.g. by telephone or electronic survey), before people arrive, to the extent possible.
Coordinate screening to prevent people from intermingling in close contact with each other prior to completion of the screening.
Screeners should be trained by individuals familiar with CDC, DOH, and OSHA protocols and wear appropriate PPE, including at a minimum, a face covering.
Maintain a continuous log of every person, including workers and visitors, who may have close contact with other individuals at the gathering site or area; excluding deliveries that are performed with appropriate PPE or through contactless means. The log is not required to maintain a list of attendees.
Encourage, but do not mandate, attendees to complete a screening and provide contact information, so they can be logged and contacted for contact tracing, if necessary.
Refer to DOH’s “Interim Guidance for Public and Private Employees Returning to Work Following COVID-19 Infection or Exposure” regarding protocols and policies for employees seeking to return to work after a suspected or confirmed case of COVID-19 or after the employee had close or proximate contact with a person with COVID-19.

STAY HOME.

STOP THE SPREAD.

SAVE LIVES.

Case 1:20-cv-00651-GLS-DJS Document 57 Filed 10/09/20 Page 93 of 153

EXHIBIT 3-1

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Press Release September 30, 2020

EXHIBIT 2-14

GOVERNOR CUOMO UPDATES NEW YORKERS ON STATE'S PROGRESS DURING COVID-19 PANDEMIC

Top 20 Hotspot ZIP Codes Have 5.5 Percent Positivity Rate
Statewide Positivity Excluding Hotspot ZIP Codes is 0.82 Percent; 1.02 Percent with Hotspot ZIP Codes Included
DFS Extends Emergency Regulation Requiring Insurance Companies to Waive Out-Of-Pocket Costs for In-Network Mental Health Services for Frontline Essential Workers During COVID-19 Until November 27

9 COVID-19 Deaths in New York State Yesterday
SLA and State Police Task Force Visits 1,114 Establishments; Observes 4 Establishments Not in Compliance
Conﬁrms 1,000 Additional Coronavirus Cases in New York State - Bringing Statewide Total to 458,649; New Cases in 49 Counties

Governor Andrew M. Cuomo today updated New Yorkers on the state's progress during the ongoing COVID-19 pandemic. The number of new cases, percentage of tests that were positive and many other helpful data points are always available at forward.ny.gov.
"We're dealing with the cluster situation. We've had clusters in the past stemming from factories, churches, bars and other locations. Remember we started with New Rochelle, the ﬁrst hotspot in the United States, which stemmed from someone who attended a religious gathering and then a wedding. And that was the ﬁrst super spreader event, so we're quite familiar with this, and when there's a cluster, we are very aggressive on it and we're oversampling in the clusters," Governor Cuomo said. "We've deployed rapid testing machines. So you have two infection rates that you want to pay attention to: the statewide numbers and then the cluster numbers. All of this is a stark reminder that we need to stay smart and vigilant - wear a mask, socially distance, follow the public health guidance - because this thing is not over."
New York State continues to track clusters with a particular focus on the top 20 ZIP codes in which there have been hotspots. Within the 20 hotspot ZIP codes, the average rate of positive tests is 5.5 percent. The rate of positive tests for the remainder of New York State, not counting the top 20 ZIP codes, is 0.82 percent. The rate of positive tests for all of New York State, including the top 20 ZIP codes, is 1.02 percent. These 20 ZIP codes contained 23 percent of all positive cases in New York State yesterday, but represent only 6 percent of the state's population.
The Governor noted that 20 hotspot ZIP codes reported an average 5.5 percent positivity rate. Areas that had high positivity rates will be subject of focused testing eﬀorts including access to rapid testing machines. These ZIP codes include:

REGION

COUNTY

ZIP

% POSITIVE

TESTS

POSITIVES

Mid-Hudson

Rockland

10952

17%

200

34

Mid-Hudson

Rockland

10977

14%

350

50

NYC

Kings

11230

8%

342

29

NYC

Kings

11204

6%

223

13

NYC

Kings

11219

5%

260

12

NYC

Kings

11223

4%

253

11

NYC

Kings

11229

4%

286

11

NYC

Kings

11210

4%

182

7

NYC

Kings

11234

4%

279

10

NYC

Bronx

10465

4%

140

5

NYC

New York

10040

4%

198

7

Mid-Hudson

Orange

10950

3%

86

3

NYC

Queens

11374

3%

151

5

NYC

Richmond

10306

3%

152

5

NYC

Richmond

10304

3%

185

6

Long Island

Suﬀolk

11717

3%

125

4

Long Island

Nassau

11580

3%

138

4

NYC

Queens

11691

3%

255

7

Long Island

Suﬀolk

11746

3%

183

5

NYC

Bronx

10462

3%

266

7

The Governor also announced the New York State Department of Financial Services will extend an emergency regulation requiring New York health insurers to waive out-of-pocket costs, including cost-sharing, deductibles, copayments and coinsurance, for in-network mental health services for New York's frontline essential workers during COVID-19 until November 27. The extension of this emergency regulation helps to ensure that cost-sharing is not a barrier to in-network mental health services during COVID-19 for health care workers, ﬁrst responders, transit workers, food services workers, retail workers at essential businesses, and other frontline essential employees, who are required to directly interact with the public while working during this continuing public health emergency. Governor Cuomo ﬁrst announced the State's directive requiring New York insurers to waive out-of-pocket costs for in-network mental health services for frontline essential workers during COVID-19 in May.
Yesterday, the State Liquor Authority and State Police Task Force visited 1,114 establishments in New York City and Long Island and observed 4 establishments that were not in compliance with state requirements. A county breakdown of yesterday's observed violations is below:
Brooklyn - 1 Nassau - 3 Today's data is summarized brieﬂy below:
Patient Hospitalization - 605 (+34) Patients Newly Admitted - 100 Hospital Counties - 38 Number ICU - 144 (-3) Number ICU with Intubation - 67 (+6) Total Discharges - 76,754 (+63) Deaths - 9 Total Deaths - 25,479 Of the 97,960 test results reported to New York State yesterday, 1,000, or 1.02 percent, were positive. Each region's percentage of positive test results reported over the last three days is as follows:

REGION

SUNDAY

MONDAY

TUESDAY

Capital Region

0.9%

0.9%

0.5%

Central New York

0.8%

1.7%

0.4%

Finger Lakes

0.6%

0.9%

0.3%

Long Island

1.2%

1.2%

1.3%

Mid-Hudson

3.1%

2.0%

2.4%

Mohawk Valley

1.2%

0.8%

0.3%

New York City

1.6%

1.3%

1.2%

North Country

0.4%

0.2%

0.2%

Southern Tier

3.6%

1.9%

0.6%

Western New York

0.9%

1.3%

1.1%

Each New York City borough's percentage of positive test results reported over the last three days is as follows:

BOROUGH

SUNDAY

MONDAY

TUESDAY

Bronx

1.0%

1.0%

1.1%

Brooklyn

2.6%

1.7%

1.8%

Manhattan

0.8%

0.7%

0.6%

Queens

1.6%

1.5%

1.2%

Staten Island

1.3%

1.6%

2.2%

The Governor also conﬁrmed 1,000 additional cases of novel coronavirus, bringing the statewide total to 458,649 conﬁrmed cases in New York State. Of the 458,649 total individuals who tested positive for the virus, the geographic breakdown is as follows:

County Albany Allegany Broome Cattaraugus Cayuga Chautauqua Chemung Chenango Clinton Columbia Cortland Delaware Dutchess Erie Essex Franklin Fulton Genesee Greene Hamilton Herkimer Jeﬀerson Lewis Livingston Madison Monroe Montgomery Nassau Niagara NYC Oneida Onondaga Ontario Orange Orleans Oswego Otsego Putnam Rensselaer Rockland Saratoga Schenectady Schoharie Schuyler Seneca St. Lawrence Steuben Suﬀolk Sullivan Tioga Tompkins Ulster Warren Washington Wayne Westchester Wyoming Yates

Total Positive 3,120 114 1,673 276 220 590 510 253 162 595 184 136 5,137 11,500 169 66 339 330 325 15 338 172 50 208 497 6,085 235 46,857 1,788 244,041 2,436 4,424 475 12,143 336 503 341 1,617 919 15,452 1,066 1,410 85 43 107 327 453 46,517 1,604 249 421 2,280 391 302 323 38,239 137 64

New Positive 4 6 31 5 1 5 18 2 0 3 3 0 7 55 1 0 0 3 2 0 1 2 0 1 0 11 1 66 5 446 4 15 0 21 1 4 1 5 3 110 6 5 0 0 0 2 3 53 4 7 4 8 5 1 2 57 0 0

Yesterday, there were 9 deaths due to COVID-19 in New York State, bringing the total to 25,479. A geographic breakdown is as follows, by county of residence:
Deaths by County of Residence

County

New Deaths

Allegany

2

Chemung

1

Essex

1

Kings

2

Queens

2

Suﬀolk

1

###

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New York Gov. Andrew Cuomo Press Conference Transcript October 5 ... https://www.rev.com/blog/transcripts/new-york-gov-andrew-cuomo-pres...
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Governor Andrew M. Cuomo: (00:00) … the delay. I pride myself on my punctuality. But some of the issues that we’re going to discuss today we were just working on resolving and that’s the reason for the delay. From my far right, Mr. Gareth Rhodes. To his left, Dr. James Malatras. To my right Melissa DeRosa, secretary to the governor. To my left, Dr. Howard Zucker, health commissioner extraordinaire. To his left, the ever- smiling and jovial, Rob Mujica, budget director. Thank you and again, I apologize for being late. Today is day 219, but it feels like just yesterday that this started, doesn’t it? Have that same freshness and energy. Groundhog Day. Remember that movie, Groundhog day? Governor Andrew M. Cuomo: (00:54) These are the numbers for today. Again, we’re looking at two different universes. Now it’s a little different than the past. We’re looking at the statewide numbers and we are hyper-focused on what we call hotspots. Where was the first hotspot in the United States of America? Trivia contest. Speaker 1: (01:21) New Rochelle. Governor Andrew M. Cuomo: (01:21) Yay, you win. Three questions today. We had the first hotspot cluster in the United States, New Rochelle, New York. So we know this well. We’re oversampling in the hotspots and with testing all across the state. The 20 hotspot zip codes, 5.5%. Our hotspot zip codes are where many states are right now. And you’ll see it in some of the numbers. Statewide positivity rate is 1. 01 outside of the hotspot zip codes. One percent is an unbelievably low infection rate. And as we are going into the fall, I believe it’s going to be practically unsustainable, but it’s remarkable that we’re that low right now. Governor Andrew M. Cuomo: (02:25) If you roll in the hotspot zip codes, which now distorts the balance of the sample, it’s 1.2. Number of deaths, eight. They are in our thoughts and prayers. Statewide white hospitalization 636. ICU, 149. Statewide intubation, 70. Context first, we’re coming into the fall. We have been told since early March, beware the fall. Beware the fall. Weather gets colder. More people move in doors. Flu season. Schools open. Schools opening are almost a predictor of increased infection rate. Colleges opening turned out to be more problematic than we thought, colleges opening. SUNY’s doing a great job. That’s why Dr. Jim Malatras is here today. If SUNY was not doing a great job, Dr. Jim Malatras would not be here today. That’s how you know that. Governor Andrew M. Cuomo: (03:29) So the fall is a challenging period, as we know. And we expect to see the infection rate go up in the fall. Context. All over the globe, the infection rate is going up. All over the globe. Countries that were doing remarkably well are now seeing spikes. U.S.A. overall is going up. Israel has a real problem. EU has a real problem. Canada has a problem. Argentina has a problem. The UK has a problem. And the UK, remember, they were up, they were down. They’re up again. You look across the nation. States are all going up. So context, beware the fall has been right. New York
10/7/2020, 10:48 PM

New York Gov. Andrew Cuomo Press Conference Transcript October 5 ... https://www.rev.com/blog/transcripts/new-york-gov-andrew-cuomo-pres...
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exception to the rule. This is the one situation where we want to be the exception to the rule. Other states up, other countries up.

Governor Andrew M. Cuomo: (04:51) That in and of itself is a complicating factor because New York state is not hermetically sealed. We put a quarantine in effect, I know, but people still drive in. It’s still water through a screen. People are still coming in on flights. International flights. People in Texas are coming in. People in California are coming in. People in New Jersey are coming in. So that’s an added problem for us. If you look at the hotspot infection rate yesterday, western New York Is a hotspot. Yesterday was a good day, 1.2%. Broom has a hotspot. Came out of a pub restaurant, but a Broom has a hotspot. Orange County, Rockland County, Brooklyn, Nassau could be on there with a hot spot in one section of Nassau.

Governor Andrew M. Cuomo: (05:55) These clusters have to be attacked. Picture that map as a map of dry grass and picture those hotspots as embers within the field of dry grass. That’s how I think of it. The only course is to run to those embers and stamp them out immediately and dramatically. That’s why I don’t sleep at night. So you have to attack the clusters. How do you attack the clusters? Testing, Testing, testing, testing. Get the facts, follow the data, contact tracing off the testing. Testing in itself doesn’t tell you anything, just that you have a problem. Contact tracing helps you solve the problem. And enforcement. Enforcement. “Oh, that’s so harsh enforcement.” Yeah, it’s not. Enforcement is kind. You know why? Because enforcement saves lives. That’s what enforcement does.

Governor Andrew M. Cuomo: (07:24) Lack of enforcement is not kind. I believe that. I believe that. And I have said that from day one. And the state has been bullish on this and it has worked. It’s worked. It’s not like I’m putting forth a proposition. Enforcement works. Any rule is only as good as the enforcement. Don’t speed. Are you enforcing it? Don’t litter. Are you enforcing it? Any rule is only as good as the enforcement, especially when it’s a rule that people don’t want to follow. Seat belts. Only as good as you enforce it. Don’t text and drive. Only as good as you enforce it. I say to people, when I see them texting and driving, I say to them, I pull up, I roll down my window. I say, “Hi, you are texting and driving. That is a violation of the law. I know because I passed that law.” It’s only as good as the enforcement.

Governor Andrew M. Cuomo: (08:39) We’re New York tough. What’s within tough? Smart. Follow the data. Follow the analytics. Disciplined. Do the enforcement. Stick to the rules. Stick to what’s working. I’ve said this 100 times. But at this point in my life, I’ve said everything 100 times. Too many local governments are not doing enforcement. Warnings are not enforcement. “Put a mask on, or I will ticket you,” is not enforcement. “Store owner, you’re not supposed to have this many people in your store.” We are past that. Everybody knows the rules. You don’t have to pull over a car today and say, “You’re not supposed to text and drive.” They know that. They know that. What you wind up saying is, “I got away with it.” We’ve been saying you get away with it for too long. And we have lived through this repeatedly.

Governor Andrew M. Cuomo: (09:54) This was bars and restaurants. How many, the times did I come before you and say, “Bars and restaurants are a problem. We have gatherings in front of bars and restaurants. Local governments have to do the enforcement.” Week after week after week. And it got worse and worse and it got worse. I even said, “Forget it. I give up.

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New York Gov. Andrew Cuomo Press Conference Transcript October 5 ... https://www.rev.com/blog/transcripts/new-york-gov-andrew-cuomo-pres...
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force. We did over a thousand violations. And you know what? Compliance with bars and restaurants is markedly better than it has been. When was the last time many of you wrote a story about bars and restaurants and gatherings in front of bars and restaurants. Why? Because the owners know they’ll lose their license. “Oh, that’s tough.” No, we saved lives. I believe that. We saved lives. New York City has clusters. Queens, Brooklyn. We also have clusters akin to this, Orange, Rockland, a little bit in Nassau. Governor Andrew M. Cuomo: (11:14) I just got off the telephone with Mayor de Blasio, Comptroller stringer Council Speaker Johnson, UFT President Mike Mulgrew. We had a very good conversation. It was a collaborative, positive conversation. It’s a complex situation, works on a number of levels. There are a number of issues. And we talked through them. We have clusters where the viral infection rate is higher by 3-4%. Where does the virus mainly transmit? Dr. Zucker was on the phone, we asked him that question. Schools, which are also the place where different communities come together. So my child goes to a private school, your child goes to a public school. But our children are on the same hockey team or on the same soccer team. Or they play together in the playground. Schools can be locations of transmissions. Governor Andrew M. Cuomo: (12:29) Religious gatherings, especially in these communities. New Rochelle, first hotspot, was an Orthodox Jewish man who went to a temple, hundreds of people. And then a wedding. Hundreds of people. Orthodox Jewish gatherings often are very, very large. And we’ve seen what one person can do in a group. Look at this Rose Garden with the President, by the way. Outdoor event. “Oh, those are safe. Outdoor events.” No, no, no. Safer than indoor. Nobody ever said safe. Safer than indoor. And look at that growing list of people at a Presidential Rose Garden event who were theoretically tested before they came in. How many people could have been infected? One, two? And look at the spread in the Rose Garden. You know what happens here. You’ve seen it over and over again. Governor Andrew M. Cuomo: (13:43) Third are public spaces. These are basically in priority order. Fourth are businesses where consumers may interact, but that is way down on the list, relatively. And the key to all of these areas is enforcement. All of them. We have rules for all these areas. We have rules for all these areas in place now. Well, then how’s it increasing? Because people are not following the rules, that’s why. On schools. My number one concern has always been schools. I said to the parents of this state, ” I will not send, I will not allow your child to be sent to any school that I would not send my child.” Period. And you have my personal word on that. I’ve spoken to thousands of parents who have called up and said, “I’m worried about sending my child to school.” I said, “I won’t allow a school to open that I wouldn’t send my child to.” That’s my test. On the schools in these areas, not all of them have been tested. Governor Andrew M. Cuomo: (15:03) So we don’t have data on all of the schools in these hotspot clusters. That troubles me. And on the telephone call, we were all basically in agreement. They have sampled some schools in the clusters, but not all the schools. And these are the hotspot clusters. So if you have to prioritize testing, you want to go to these schools first because you know they are in hotspot clusters. So some schools in those clusters, we have not yet done testing on. Better safe than sorry, I would not send my child to a school in a hotspot cluster that has not been tested where I did not have proof that the infection rate was low in that school. I would not send my child.

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New York Gov. Andrew Cuomo Press Conference Transcript October 5 ... https://www.rev.com/blog/transcripts/new-york-gov-andrew-cuomo-pres...
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to a school that I wouldn’t send my child. We’re going to close the schools in those areas tomorrow. And that’s that.

Governor Andrew M. Cuomo: (16:23) Religious gatherings. The City’s proposal does not close religious institutions. We know religious institutions have been a problem. We know mass gatherings are the super spreader events. We know there have been mass gatherings going on in concert with religious institutions in these communities for weeks. For weeks. I don’t mean little violations. You’re only supposed to have 50, they had 55. I’m talking about, you’re only supposed to have 50 outdoors, they had 1,000. These are pictures from the past couple of weeks. And these are just emblematic.

Governor Andrew M. Cuomo: (17:41) You’ve all seen pictures like this for weeks. What did you think was going to happen? What do you think was going to happen? Religious institutions are mass gatherings and raise the greatest potential. It’s schools and it’s large mass gatherings. Schools, frankly, because they’re students and that’s where our heart goes, our priority goes. But in terms of numbers, it’s large gatherings and large religious gatherings are large gatherings. These have been going on for weeks. You don’t see masks and you see clear violation of social distancing. When were these pictures from?

Speaker 2: (18:47) The one on the right is more recent than the one on the left.

Governor Andrew M. Cuomo: (18:51) Okay. But they’re in the recent past. So this has been going on for weeks. We’ve been talking about it for weeks. If we’re going to keep religious institutions open, it can only be with two conditions. One, the community must agree, whether it’s the Jewish community, whether we’re talking about Black churches, whether we’re talking about Roman Catholic churches, the religious community has to agree to the rules. And they have to agree that they are going to follow the rules and they have to agree that they are going to be a full partner in the enforcement of the rules. That’s condition one. I’m going to meet with members of the ultra-Orthodox community tomorrow. I want to have that conversation directly myself. This cannot happen again. If you do not agree to enforce the rules-

Governor Andrew M. Cuomo: (20:03) If you do not agree to enforce the rules, then we’ll close the institutions down. I am prepared to do that. Second, after we receive the agreement, an agreement is only as good as the enforcement. We have to have real enforcement in these clusters and the other statewide clusters. The enforcement will help the community. If the rule is no more than 50% of the people in a black church, I want someone at that door when 50% enter the church. A person there who says to the pastor, “You agreed to follow the rules. That’s 50%, that’s it, or we close it down.” It does not work without enforcement, but both of those conditions have to be in place. If I do not have the agreement from the religious community directly as a starting point, then we will close down the religious institutions. If they do agree to do it in partnership, then I want a real enforcement capacity. We’re not going to make the same mistake twice. Tomorrow, I’m going to meet with the larger congregations, New York City, Rockland, Orange, Nassau, and have that conversation. That’s step one. If we get past step one, then we need enforcement in place. Enforcement is enforcement. I’ve said this to you. I have this conversation with the local officials all day long.

Governor Andrew M. Cuomo: (22:09)

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New York Gov. Andrew Cuomo Press Conference Transcript October 5 ... https://www.rev.com/blog/transcripts/new-york-gov-andrew-cuomo-pres...
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That’s not enforcement. There is no person in the state of New York who needs you to tell them, at this point, “You must wear a mask.” They know they must wear a mask. There was no need for public education. Find me the person who says, “I never heard that. Really? You have to wear a mask? I never heard it.” Find me the person in the state who says that. Enforcement is enforcement, okay? New York City only did 26 enforcement actions. Enforcement is here’s a violation. New York City deployed 1,000 people for days, three days, 1,000 people for three days is what? Is 24,000 personnel hours. 24,000 personnel hours? You only did 26 enforcement actions? That’s not enforcement. Governor Andrew M. Cuomo: (23:26) We have to be more aggressive. I understand that it’s in politic. I understand the sensitivity in the community now, but I also understand you will see people die if we don’t do more enforcement. I also understand that we have learned this experience before. This is the bars and restaurants story. Week, after week, after week, we have to do the enforcement. Nobody’s doing the enforcement. Week, after week, after week, nothing changes. The state took it over. I did 1,200 enforcement actions, 228 immediate license revocations just on bars and restaurants. Governor Andrew M. Cuomo: (24:15) 1,200. Now, was I happy about doing 1200 enforcement actions? No. Immediate license revocation is very difficult. That business basically closes. People lose their jobs. You don’t want to do this, but life has options, my friends. You don’t do this, the virus spreads, people die. You tell me, which is the nice and kind and responsible course of conduct? 1,200 enforcement actions just on bars and restaurants. That’s enforcement. The state is going to take over the enforcement oversight in all the hotspot clusters, okay? Local governments will need to provide us with personnel, but the state will take over the enforcement with the local personnel. I do not have enough state personnel to supplement every local police department in the state. To give you an idea, we have about 5,000 state troopers. There are about 35,000 NYPD, okay? Governor Andrew M. Cuomo: (25:47) Most of this enforcement is also going to be done by health department officials, other agency-type officials. I said from day one to the local officials, I understand this is all tough stuff, and politicians like to make people happy as a general rule. I like to make people happy as a general rule too. I just have a superseding rule, which is, I like to keep people alive. I’d rather you be alive and angry at me, than have people happy with me. I’m elected to do a job and be responsible, and that’s what I want to do. I said from day one, blame me. Blame me. You have to revoke a bar owner’s license? Blame me. We have to close a temple because it’s over 50%? I’ll do it. We have to close a Roman Catholic church? I’ll do it. I had to close the St. Patrick’s Day parade? I did it. I’ll do it, but none of these rules are going to make a darn if you don’t have the enforcement. Governor Andrew M. Cuomo: (27:04) Another issue that came up on the phone, which is right. Targeting by zip codes is imperfect. The virus doesn’t travel by zip codes. Neighborhoods and communities aren’t organized by zip codes. Zip codes can be arbitrary and can leave out some communities that are infected. Zip codes can include communities that have a low infection rate. This is a zip code in Brooklyn. The white areas are inside the zip code, but we have the infection rate by address. You have areas in that zip code that aren’t infected. You then have areas outside the zip code that are infected. The zip code as a template is rough justice, but only rough justice. We can refine that. That

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address and make sure you’re including the relevant zone, not just a zip code, you have to go a little bigger.

Governor Andrew M. Cuomo: (28:34) You go a little bigger. If you don’t have an infection rate in certain communities, don’t include those infection rates. The zip codes as a starting place, but we then want to have a team of epidemiologists and demographics people actually look at the maps and where the infection rate is and make sure we’re drawing the right circle or the right borders. The controller raised that point, and it’s a good point. The health officials agree. When we did New Rochelle, we did a circle. Every other state, every other country does a political subdivision, a county, a city, a town. The zip codes are not the best template to use, and we want to refine that template.

Governor Andrew M. Cuomo: (29:46) For example, we’re closing schools in zip codes, but the school district is different than the zip code. Just because the school is located in that zip code, doesn’t mean the students come from that zip code. The catchment area can go the opposite direction from the zip code. Right now, that’s the best we have with the New York City data, but we’re going to refine this. Non-essential businesses, public spaces. Remember, it’s mass gatherings, public spaces, schools should close, but we need to have the right template designed before we can do that with full accuracy. The only action we’re taking today on this data, we are using the zip codes to close those schools tomorrow. If we expand the regions and that then includes other schools, we’ll then notify people as soon as we know, but for today, or we have other zip code … That is the zip code data, so it’s the schools in those zip codes. As we refine it, we’ll let you know.

Governor Andrew M. Cuomo: (31:01) In total, schools close tomorrow. I’m going to be meeting with the Orthodox community tomorrow. See if they will agree to live and abide by the rules and advocate compliance. If the rabbi advocates compliance, that would be a very positive start. If the communities don’t agree with the rules, which is possible, I had some conversations where some religious leaders believe they have herd immunity, which is not true. Some people believe have followed politics and think that masks are ineffective, and this is all a hoax. That’s not true, but if they don’t agree, then the state will take action. If they do agree, and we have the ability to enforce, then we will go with reduced guidance, 50% rules, primarily outdoors, et cetera.

Governor Andrew M. Cuomo: (32:13) We’re going to do statewide enforcement, state-supervised with local resources, but enforcement has to be enforcement. We need better templates, geographic templates and zip codes. We also need better data on these schools in these hotspot zip codes, more testing, faster testing, so we find out exactly where we are. We need to establish criteria for reopening. When do the areas reopen? What testing data, what percent over what period of time? That has to be established. In closing, New York City is not unique, we have this all across the state. Again, we started with the first hotspot and it’s going to continue. It is the way of the world. It’s the way this virus moves. It starts in a cluster. It always starts in a cluster wherever, and the question always becomes, can you stop it in the cluster? Can you tamp out the embers before it’s a fire out of control? That’s always the question. That was the question in Wuhan, China.

Governor Andrew M. Cuomo: (33:41) Could you get to Wuhan and stamp it out before it spread? That was the question in New Rochelle, and we did stamp it out in New Rochelle, by the way. Every state is

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what we’re down to. We’re New York tough, smart, disciplined. Just to reiterate, the fall is perilous. We have to stay vigilant. When we talk about 1%, I understand that it is a hyper ambitious goal. You have to remember, we were at 20% infection rate at one time, and I understand that we are surrounded by higher infection rates. Governor Andrew M. Cuomo: (34:37) New Jersey is 2.1. They were three last week, okay? Connecticut is 1.3. They were 1.5 and Connecticut has always been a relatively easier situation than New York. I’m envious of my friend, Governor Ned Lamont. Pennsylvania is at 7.9%. We have people coming in and out of here every day from these states. We have people flying in from other countries, so 1% hyper ambitious, unrealistic. Keep the bar high, raise the goal, and we do the best we can, but I’m also realistic. These are the facts that surround us. That’s why right now you take out our hotspots. We have one of the lowest infection rates in the United States of America, and that is the gold standard. That’s what we want to try to achieve. Even if it is not fully realistic, but New Yorkers have done an amazing job, highest infection rate at one time, lowest in the nation. God bless New Yorkers. I want to make sure as governor, I’m doing everything I can to honor and fulfill their sacrifice and their toughness and their love for each other, and we’re doing that. Questions? Speaker 3: (36:26) Governor, on the schools specifically, do you have a sense of how many that is total in Brooklyn and Queens? What will the duration be, and why did you think now is not a time to really go after the essential businesses? I mean, do you think you could do that as soon as this week? Governor Andrew M. Cuomo: (36:40) Essential businesses are like number four in the spreader priority, right? Schools, mass gatherings, religious institutions, especially in these communities, public spaces, businesses, but the businesses are not mass spreaders. You’re talking about small stores. We’re not talking about large box stores in these communities, right? We’re talking about small stores, the difference whether you had six patrons or eight patrons at any given time, and we want to … The businesses will be really effected by the lines you draw. We’re going to … I believe we can draw better lines than a zip code. Before we create confusion, on one side of the street, you’re open, one side of the street, you’re closed. Why? When the zip code line is on this side of the street, not that side of the street.

Governor Andrew M. Cuomo: (37:51) Let’s get the right template, and then we’ll take those actions. The big generators, schools, it’s children. There are about … Do you remember the numbers of schools we said were in these areas? Mike said it, how many were tested? Speaker 4: (38:13) Approximately 28 orGovernor Andrew M. Cuomo: (38:15) 28 or 30, they were like 180 or something like that. Many of the schools in these clusters just have not been tested yet. That gives me concern and they are possible transmission places. Then it’s going to be the mass gatherings and the religious institutions. Those are the pictures, right? That’s what it is. It is those superspreading situations, and that’s what we have to get a handle on .

Speaker 5: (38:42) Governor, the mayor had proposed-

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[crosstalk 00:38:46] are you talking about [inaudible 00:38:48] and other private schools in addition to the public schools? Governor Andrew M. Cuomo: (38:50) Yes. Speaker 5: (38:52) The mayor had proposed Wednesday to close the schools. You’re moving that up one day. What is the reason for that? His argument was, ” We’re just about through with giving every child that in-person day in the blended model, Wednesday is when it makes sense.” Governor Andrew M. Cuomo: (39:07) We had a phone call now. Well, Mike Mulgrew recommended it. Speaker recommended it. The controller recommended it. I think what was the determinative fact was there has not been testing in those schools. Some of the schools in the hotspot zip codes have been tested, but some have not. How can you send children into a school in a hotspot zip code, when you know that you don’t have any information as to whether or not it’s safe? Speaker 5: (39:44) Well, you sent them in today. You could’ve made this decision yesterday on Sunday. Governor Andrew M. Cuomo: (39:50) Yeah. Except I wasn’t involved, right? I had the conversation today, so I can’t move any faster than this. Speaker 5: (39:56) Just a quick follow up, you’re not closing the schools in Orange and Rocklin, the other hotspots, just the New York City schools, why? Speaker 5: (40:02) … Auckland, the other hotspots, just the New York City schools, black. Governor Andrew M. Cuomo: (40:03) We may close those schools. We don’t have the same level of problem. But I’m going to be speaking to those community leaders also tomorrow, because it’s roughly the same situation. If the religious leaders do not agree to abide by these rules then we will close the religious institutions, period. If they agree, I will only go forward if I know we have a state supervised enforcement action. Because I’ve seen this movie and you’ve seen this movie, 26 enforcement actions is not enforcement. And I understand it’s difficult, but I want a person monitoring the attendance in a temple, in a black church, in a Catholic church. And if the rules are violated then action has to be taken at that moment. And that enforcement has to be in place. Governor Andrew M. Cuomo: (41:16) The challenge is I don’t have, on the state side, enough people to say, we’ll do all the enforcement. That would be easy. And I would do that in a heartbeat. I didn’t even have enough people to do the Bars and Restaurants Task Force. We took people from all over. I have environmental inspectors on that task force. But it also proved it worked and both conditions have to be in place if we’re going to allow the rigid religious institutions to stay open. If one or two doesn’t happen, then we’ll close them. I don’t have a problem with that. Zach: (42:04)

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individuals or purely through this task force on businesses, schools, religious institutions? Governor Andrew M. Cuomo: (42:15) It’s individuals but you want to prioritize your impact. Mass gatherings have the most potential to do a super spreader, right? Rose Garden, New Rochelle. So certainly mass gatherings first. If I’m an investigator and I’m out there and I want to make a difference in the world, mass gatherings, mass gatherings at religious institutions, mass gatherings in parks. By the way, mass gatherings of young people at parks in front of NYU, right? College kids coming out 2, 300 to party. Those are all mass gatherings and that’s a priority for compliance. School’s priority. And then you go down, businesses and then individuals. Zach: (43:22) So would they be authorized then to ticket people who are walking on the street without masks, for example? Governor Andrew M. Cuomo: (43:28) Oh, they are now. Zach… Zach: (43:31) But is it [crosstalk 00:43:31] for them to enforce it in that way? You say it’s not the highest priority, butGovernor Andrew M. Cuomo: (43:34) Zach, it is now. You walk down the street without a mask. You’re within six feet of a person, you are in violation of the law. Zach: (43:43) But will they enforce it through this new task? Governor Andrew M. Cuomo: (43:46) Yes. And they should be enforcing it now. That question should not be a question. The answer is of course. NYPD should be enforcing it now. New York City Department of Health should be enforcing it now. You should have no question in your mind that if you walk down the street and you’re not wearing a mask and a police officer sees you, you’re going to be ticketed. Louis: (44:15) Governor, doesn’t Orange County and Rockland County have higher infection rates thanGovernor Andrew M. Cuomo: (44:20) It depends. It depends on where. Louis: (44:21) If they have high infection rates why not close the schools there as well? Governor Andrew M. Cuomo: (44:26) Well, that’s what we’re going to be talking about. And there’s some disparity in what the infection rates are and we want to drill down on the data. But it’s the same basic conversation we’re having here. Excuse me one second. Louis: (44:48) Do you believe you have the legal authority to close down religious institutions

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Governor Andrew M. Cuomo: (44:52) We believe we have the legal authority. We will assert the legal authority. We have been sued by the religious organizations. Our legal authority was upheld. I don’t like getting into a litigious situation with the religious community. I have enough questions that I have to answer when I get to the Pearly Gates. I don’t want to also be questioned as to why I was sued by the Catholic church or the Jewish community for closing temples. So I have enough issues on my plate. But yes, we believe we have the legal authority. Did you want to say something? Melissa DeRosa: (45:38) No. I would just say Louis, you have to remember back. So when we did New York on pause back on March 20th, we banned all mass gatherings, more than 10 people, and we closed all non-essential businesses. It was the mass gathering rule that was upheld. And so technically during that period of time, individuals could walk into a religious institution and pray, but you couldn’t have more than 10 people in a religious institution regardless of occupancy at any given time. What changed was when we began to do the phased reopening and we started to say that businesses could have 50% capacity, we said houses of worship could have 33% capacity. Melissa DeRosa: (46:15) The lawsuit was over whether or not it was fair that in a religious institution, you were taking a different standard than any other business. And the court at the time went with the businesses. But what the governor’s describing as if we’re moving into a situation where we’re indiscriminately saying a mass gathering number in a certain region based on infection rate would be lowered, let’s call it 10 people. I’m not saying that’s what it’s going to be. But just for example sake, 10 people, then you’re not saying a religious institution is being treated differently than any other institution because the law would be applied evenly throughout. Does that make sense? Governor Andrew M. Cuomo: (46:52) Can you put up the picture of the two congregations again? Melissa DeRosa: (46:58) Sorry Louis. Governor Andrew M. Cuomo: (46:58) Wait Louis. Isn’t Louis [crosstalk 00:47:00] Louis: (47:00) On the non-essential businesses, could you clarify your stance or do you mean against shutting them down and closing them or you mean against the mayor’s proposal? What exactly are you waiting for on the non-essential businesses? Governor Andrew M. Cuomo: (47:14) On the non-essential businesses, also on the schools, we all agree we need to do a better template than a zip code. A zip code is not the best definition of the applicable zone, right? You have information beyond the zip code level. You have addresses, you have census track data. So if you have to draw a… I use the word containment zone. In New Rochelle I got into all sorts of trouble. If you have to circumscribe an area, make sure you have the right boundaries. And before you make a determination about essential businesses or not, make sure you have the right geographic area because you will be closing businesses.

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And if you don’t do it right, it’ll just be arbitrary and capricious and then they’ll bring you into court. And they’ll say, it’s just because I happened to be in the zip code and one side of the street, the deli’s open on the other side of the street, the delis closed. What sense does that make? All you’re doing is bringing the people across the street. So what is the best area? Once we have that done, then I don’t have a problem with closing the essential businesses. Then you determine for how long by what data, et cetera. But even all of this comes back to do you have the enforcement capacity to enforce any of this? All these great rules, but do you have the enforcement capacity?

Governor Andrew M. Cuomo: (49:18) So I know we’re giving you a lot. First action, close the schools tomorrow, use the zip codes because that’s all you have for now. If you come up with a different template, I’m sorry, when you come up with a different template, if it includes additional schools, include additional schools. Meet with the Orthodox community, see if they will agree to live by the rules. If they do, then we need to put in together a statewide enforcement task force and the local governments have to give me enough personnel to make it work. And that will be statewide including New York City. Then redraw the geographic boundaries. See what’s in and see what’s out. Then put that out there. And that’s all.

Speaker 7: (50:17) So governor, why do you think Mayor de Blasio has not been able to pull the trigger on enforcing these things?

Governor Andrew M. Cuomo: (50:25) You’d have to ask the mayor.

Speaker 7: (50:26) But I’m asking you.

Governor Andrew M. Cuomo: (50:28) I know you are asking me and that’s why I am saying you have to ask the mayor. Look, I think it’s not just the New York City issue, it’s local governments plus or minus. Some are very aggressive by the way and do a great job. But some have been very reluctant. And that’s why I had to do the Bar and Restaurants Task Force. I mean, how many times did you sit here and I saw the skepticism in your face when you would say, “Here he goes again with his bar and restaurant rant.” But yes. How many weeks did we say, look at the crowds, look at the pictures, Look at all the young people in front of the bar, do something, they did nothing? Part of it is the environment, the NYPD tension with the community. Do they want to engage in this kind of activity? Then you go to… the mayor’s been using the sheriff. The sheriff’s office is 150 people. What do you think 150 people are going to do? I mean, it’s just not enough. And then you have the political overlay.

Governor Andrew M. Cuomo: (51:48) You’re dealing with government saying to religions, you shouldn’t have more than X people in your church or your mosque or your temple. That’s an politically uncomfortable situation. I have to say to the Orthodox community tomorrow, if you’re not willing to live with these rules, then I’m going to close the synagogues. I have had a 30 year relationship with the Orthodox community. It goes back to my father. I have a very close personal relationship with them. This is the last thing I want to do. Forget the politics, I don’t care about that anymore. Personally, I don’t want to have this conversation. It’s a difficult conversation. And you’re right on the line of government intrusion on religion. So it’s hard. I didn’t want to close down

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enforcement actions, that with this rampant ongoing violation. You think 26 enforcement actions was going to stop it? No. Speaker 8: (53:26) The state is going to oversee the enforcement with local personnel. What does that mean and why is it going to be different than what you just described? Governor Andrew M. Cuomo: (53:43) What we did with the bars and the restaurants is I used state personnel from all across the state and it was run by the state police and the SLA. Here we’ll have a task force put together, run by the Department of Health and the state police. And local governments will need to assign people to that task force who are supervised by that task force, deputized by that task force to give out state summonses as directed by the supervisors of that task force, right? So you can be a Nassau County Department of Health official. You are assigned to the task force. I’m the state person running the task force. I say, you’re going to be stationed in front of St. Peter’s Church. The capacity is 150. You stand at the front door. When they go over 75, you close the door and call me. And if you have any problem, the state police officer is down the block and he’ll come help you. That’s your job. You are from the Department of Health, Nassau County, but you were assigned to a state task force. Speaker 8: (55:12) So the state is telling the local officials where to be? Governor Andrew M. Cuomo: (55:17) Say it one more time. I’m sorry. Speaker 8: (55:18) The state is telling the local officials where to be? Governor Andrew M. Cuomo: (55:24) No. The state is determining where to be primarily based on the hotspot clusters, right? Here in New York City, we knew where the problems were. We knew it. So we’re all looking at the same areas because we all have the same data on the zip codes in the communities. We just haven’t been aggressive enough on the enforcement. And I said from day one, blame me. I’m willing to do the enforcement. I have a different political perspective. I think it’s kind and right and responsible as opposed to harsh and I’m going to make enemies. And the state taskforce is going to do it, but I don’t have enough people. I don’t have enough personnel. So I need them to assign me personnel. Speaker 8: (56:19) I’m just wondering, if the locals didn’t do it before, what makes you think you’re going to do it now? Governor Andrew M. Cuomo: (56:26) Oh, because they’re not doing it in their name. It’s my name that they’re doing it in. And that makes all the difference. Speaker 8: (56:34) That’s going to make the difference. Governor Andrew M. Cuomo: (56:36) Oh yes, because there’s no political recriminations to them. I’m going to say to the Orthodox community tomorrow, if you don’t agree, then we will have to close down

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That’s not a comfortable conversation.

Melissa DeRosa: (57:05) Just to punctuate the governor’s point. So just so we’re all clear. Section 20 of the executive law regarding emergency response delegates the authority on enforcement in an emergency to the locality. So let’s just use that as the baseline. To go on the governor’s point on the SLA, what was happening a lot over the summer was everyone was seeing on social media reports of bars and restaurants and drivein concerts, whatever it may be, in clear violation of the rules that we put into place in order to keep the virus contained in New York. We would reach out to the local health departments, local governments, say, “What are you doing about this?” And politically, it was very difficult for them. Oh my friend’s cousin owns that bar. This person I know owns that restaurant. It was just this one time. And so the governor put together the SLA Task Force. The hope being from the SLA Task Force was that we would go after individual bad actors before having to blanket punish an entire industry.

Melissa DeRosa: (57:55) So rather than in that moment in July and August say we’re closing all bars and restaurants, indoor, outdoor, everything, we tried to surgically go after the individual bad actors. And it was incredibly effective. To the governor’s point, you now see dramatic change in compliance. At the same time, my phone was ringing off the hook, Robert’s phone was ringing off the hook from local politicians, state legislators, assembly and senators in these areas saying, you closed down my friend’s brother’s bar, you’re being gratuitous. It was just one violation. You’re going after and finding these people. And we said, “Yeah. We are because we lived through mass graves on Hart Island and we lived through sirens in this city and we lived through death and we’re not doing it again. So we will take it over.” And when they say, “Well, we’re upset.” You can say, well, the governor’s office is terrible. They’re going to continue doing it and they’re going to continue doing it no matter what we say so you better just follow the rules. And we have seen a dramatic change in compliance as a result. And that’s what we’re trying to accomplish.

Governor Andrew M. Cuomo: (58:50) Let me do it another way for you. Just turn the picture a little bit so I don’t have every local official calling me this afternoon. First, many local governments have done this very well. Second, this is a very different situation because this is a state law that has been delegated to them to enforce. State law, which is a new state law, delegated to them to enforce. They don’t close down religious institutions. It’s not what they do. They don’t close down bars. They don’t close down restaurants. They don’t close down drive-in concerts. They don’t tell people to wear masks. They don’t tell people you can’t gather 100 people in a park. They have never done this before. It’s not what they do. COVID, we passed these new state laws you are-

Governor Andrew M. Cuomo: (01:00:03) … COVID. We passed these new state laws. You are delegated to enforce them. It’s your job. We’ve never done this before. It’s not what we do. My local police don’t close down bars, and we don’t tell people to wear masks. I know you’ve never done it before, but you have to do it. We don’t go into a church and say, “You’re violating the 50% rule. Close the church.” We don’t do that. I know, but you have to do it now. That’s for the bureaucracy to accept that and pivot and do it, and these are all difficult laws. Think about it. You’re a local politician. Pick one. Close temples, close mosques, close schools, close Catholic churches. No, thank you.

Speaker 3: (01:00:56)

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For example, would you want testing in the schools to indicate when they could reopen? Or is it the community at large, meaning within the zip code? Governor Andrew M. Cuomo: (01:01:06) It may be both. We don’t know. And that’s what we want to establish. Dr. Zucker’s going to work with the city and some other outside experts to make that determination. Speaker 9: (01:01:20) [inaudible 01:01:20] timeline on the boundaries? We know of two concerts that are planned in Brooklyn this week in the ultra-orthodox community. Are you going to have to close down larger venues this week? Governor Andrew M. Cuomo: (01:01:30) Well, first of all, it shouldn’t be happening anyway. Period. It violates the existing law. You have to enforce the law. State-wide, I’ve gone through this in Suffolk. They had a music concert, fundraiser in one of the towns in the Hamptons. You can’t have a concert mass gathering today. You can’t. I don’t care what zone you’re in. You can’t do it. Speaker 5: (01:02:14) [inaudible 01:02:14] Mayor DeBlasio yesterday announced a plan, asked for your approval, set of presser for 12:00 today. You all scheduled one for 10:30, then 11:45. I understand you had to meet with him first, or [inaudible 01:02:28] over the phone, discuss it, your team and his team, but I wonder if you could explain to the public why you couldn’t have a joint announcement, a joint press conference. We in the world could ask you all these questions together and have a united front. I think a lot of people have a lot of frustration about that division. Can you explain it to them? Governor Andrew M. Cuomo: (01:02:49) No. You have a federal government. You have a state government. You have a city government. You have county governments. This is a situation where by law is governed by state law. The mayor said that yesterday. The mayor said, “I have a plan. I’m going to propose it to the state.” Okay. Now, I have to review it. I have to see what the speaker says. I have to see what the Hasidic community says. I have to see what the police say. I have to see what the controller thinks. I have to see what my health officials think. It’s a complex issue. Right? Governor Andrew M. Cuomo: (01:03:29) And he did announce it, so people now want to know. It’s caused a lot of aggravation. My phone has been ringing off the hook. Has said, “The community is very concerned. Parents are very concerned. What’s happening? What do you know?” So, I want people to know as soon as possible, especially your schools are closed tomorrow, so you can figure out what to do tomorrow. And this is the most recent update. And I spoke to him about it. I spoke to him, Mulgrew, the controller, the speaker, and this is what we agreed we would do. This is the plan of action. You are hearing it as soon as I could get it to you. Speaker 10: (01:04:17) Governor, what kind of testing going forward do you want to see in schools? You said there’s not enough going on in the city. At least the city schools were doing monthly random testing, a certain percentage. Do you want to see something more than that? And then, how about the issue [inaudible 01:04:34] religious schools in these areas, do you want to see more specific testing?

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I would say two things. I would say three things. First, I probably know more testing than any non-testing expert in the state, and I know more about testing than I ever wanted to know. And we do more testing than any state in the United States. But I know what I don’t know, and I want to get the input. We have the best global experts that we work with. I want to hear what they think. But number two, if you know you have a hotspot zip code, test that school. Test that school. If you’re going to send a child into a school that you know is in a hotspot, in my opinion, you have to test that school before you would ever send a child into a zone that you already know is a hotspot. Governor Andrew M. Cuomo: (01:05:40) Second, random monthly. What is the interval between the tests? In other words, does that mean you’re going to random… You have 30 days, 31 days, let’s say, is it all in the first week, maybe? All in the last week? Is it spaced out every week? What are the intervals between the test? Because this goes like this, right? “Well, we did a test on day one, but then we didn’t test again until day 10, and lo and behold, from day one to day 10, it went up four points.” No, I think random is fine. Monthly, I don’t know what that means, monthly. Does that mean you could just do it once a month? I understand daily. I understand weekly. I don’t really understand random monthly because it sounds like it’s a month. If you’re saying there could possibly be a month between tests, but that doesn’t work for me. I can tell you I would not accept that plan for my school. Speaker 10: (01:07:03) Will there be an impact to indoor and outdoor dining in these cluster areas? Governor Andrew M. Cuomo: (01:07:06) There could be. There could be. We’re reviewing it. Speaker 10: (01:07:10) Do you think it will be this week? Governor Andrew M. Cuomo: (01:07:12) Yeah. We need to come up with the template because I don’t want to confuse businesses. You’re in, you’re out, you’re in. There’s been enough of that. When government comes up with a plan, stick to the plan, don’t change the plan. It suggests to people confusion and incompetence. So, what’s the right geographic template? What’s an essential business now? What’s the indoor dining rule now? What’s the mass gathering rule now? And then, how do you enforce it? Speaker 8: (01:07:48) You’re the governor of the state, the mayor’s the mayor of the city. That doesn’t preclude you from speaking together. Does it? Why can’t the two of you, as [inaudible 01:07:59] suggest, come together, one message from one place instead of these different voices from different places? Governor Andrew M. Cuomo: (01:08:10) Look, I’ve been with the mayor many times. He has a schedule. I have a schedule. I wanted to get you the information quickly. I didn’t put out this plan. He did. So, if anything, you’d want to ask him why didn’t you propose a plan to the state and work it out first and then just announce a final plan, as opposed to announcing a proposed plan that the state then had to react to. I don’t know. Why do you sit in that seat? I don’t know. People have their own styles and their own way of doing things, but that’s all it is.

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Governor, speaking of sitting in seats, but you all are a few feet away indoors and not wearing a mask. I wonder if you could speak to the mask wearing culture in this room, in your office, and what it says, as you talk about the need for enforcing laws and being consistent, what it’s telling to those communities who might, I feel it’s probably pretty safe to say, are tweeting even as we speak about your presence together without masks. Governor Andrew M. Cuomo: (01:09:28) We have sat in these seats six feet apart, socially distanced, without masks since COVID started. The rule is six feet apart, and that’s what we do. This state has been a model of mask wearing. We were the first state to mandate masks in the United States of America. We have done more advertising for masks than any state in the nation. We’ve done national public service announcements on mask wearing. I’ve been the most outspoken governor against the president for not mask wearing. I’ve been the most outspoken governor against the CDC and NIH and the vice president for not condemning the president’s failure to wear masks. I visited cities all across the country and advocated mask wearing. Governor Andrew M. Cuomo: (01:10:25) I said that this nation and its health officials made a terrible mistake by telling this country early on not to wear masks. The surgeon general tweeted they are unnecessary. Whenever I am in a situation where I should wear a mask, I do wear a mask. Don’t confuse people by putting forth your own mask wearing rules. Do that with your family. If you are six feet apart, you do not need to wear a mask, let alone these people are all tested on basically a daily basis. Zach: (01:11:07) What about aerosols, though? Isn’t there new evidence that the virus spreads through the air? Governor Andrew M. Cuomo: (01:11:11) The rule is six feet social distancing. Do you want to change the rule? Zach: (01:11:19) Who’s determining this rule? You’ve said that the CDC can’t be trusted for public health guidance, but there is lots of new research that shows the virus can spread through [crosstalk 01:11:28]. Governor Andrew M. Cuomo: (01:11:28) The CDC’s rule is six feet, the state law is six feet. If there’s new data, and we should come up with a new law, then the CDC could do that. That Department of Health could do that. But the law is six feet. That is the law. The law is a mask. The law is not a helmet. If new data comes out and says, “You should wear a helmet,” and then we’ll have a helmet law. The law says a mask, not ear muffs because we don’t believe the virus goes in your ear. Maybe somebody will do an article saying it can invade your ear and then we’ll have a new mask with ear muffs. Last question. Speaker 11: (01:12:13) What’s your level of concern that the outbreak is going to continue to increase? What’s to stop, if we do close out more indoor dining, what’s to stop people that live in hotspots from going down the block, or catching the train and flocking outsideGovernor Andrew M. Cuomo: (01:12:27) Nothing. Nothing. Nothing. Which is why the health officials are very worried about how you draw the lines. Because what the health officials will tell you is if you don’t

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sending them to the next community to have outdoor dining because their outdoor dining’s closed and you can actually be spreading the virus. That’s why the geographic template is very important. This has never been done before. Every other government closes subdivisions. The entire city, the entire county. Brooklyn closes. Governor Andrew M. Cuomo: (01:13:25) Now, theoretically, you want to drive into Manhattan, you can drive into Manhattan, but you have to drive into Manhattan or take a train into Manhattan. You want to go into Queens to eat, you can go to Queens, but you have to go to Queens. You get this small area, you just walk across the street. You walk two blocks, and we were trying to contain you. That’s why New Rochelle, what we did was a one mile circle, and it had a margin around it. So, in other words, the circle was wide enough where there was a buffer between the infected community and the non-affected community. But yeah, that is a very real concern, and there’s a very real question of, if you do this wrong, are you just spreading, inadvertently, the virus? So, how you draw those lines is very important. Speaker 11: (01:14:40) What would enforcement look like, then, in that situation? Is that going to be [inaudible 00:01:14:44]? Governor Andrew M. Cuomo: (01:14:44) No, the enforcement winds up the same. You draw the lines, and then the enforcement is the enforcement. And the enforcement is indoor dining is only supposed to be 25%. You have 30%, you get a ticket. It’s supposed to be outdoor dining… Whatever the rules are, they enforce in that template, but you’re right, make sure that template is right. Louis: (01:15:07) Governor, so you’re saying there aren’t enough data from some schools [inaudible 00:15:10], some schools aren’t testing enough or don’t have the adequate capacity, should those schools have been allowed to reopen in the first place? [crosstalk 01:15:18]. Governor Andrew M. Cuomo: (01:15:23) We didn’t say inadequate data. There’s no data. These schools opened and have done no testing. That was the city plan that the New York City parents signed off on, and the New York City teacher’s union signed off on. They had this random monthly testing plan, but they did not have a provision that said if the higher infection rate zip codes will be tested first. So, I think this has been educational for them, and that’s something you want to look at. My point is, you have no data on some of these schools in these hotspot zip codes, would you send your child to school tomorrow, to a school that you knew had no data on infection rate but didn’t know it was a hotspot zip code, would you send your child? Louis: (01:16:44) [inaudible 01:16:45]. Speaker 12: (01:16:44) But good answer. Right? But you’re [inaudible 01:16:49]. Governor Andrew M. Cuomo: (01:16:49) I wouldn’t, so that’s how I do my decision. Sorry?

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[inaudible 00:16:54]. Governor Andrew M. Cuomo: (01:16:55) No. State put out guidance. And then the 700 school districts came up with a plan pursuant to that guidance. I said 876 times, put the plan on the web, Let the teachers union look at it, let teachers look at it, let parents look at it, let the reporters read the plan and report on the plan, and if a savvy reporter sees an obvious hole in the plan, I’m sure they will write about it. Capisce? Thank you, guys. Speaker 13: (01:17:37) [inaudible 01:17:37] right now in Brooklyn, I’m told this crowd. Who should be enforcing that? Governor Andrew M. Cuomo: (01:17:47) The city of New York. Speaker 13: (01:17:48) NYPD? Governor Andrew M. Cuomo: (01:17:48) The NYPD, the New York City Department of Health, today, is in charge of enforcing the laws. That’s what I’m saying. We have these laws. Everybody knows the laws. They’re not being enforced. They have to be enforced. “Well, we have tension with the police. We have tension over here. I don’t want to…” I get it, but if you don’t enforce the law, the virus will spread. So, your question is relevant. There’s an ongoing activity that violates the law. How is this possible? That’s why I’m saying, I want state supervised enforcement going forward in these clusters because I am unhappy, statewide, with the enforcement that’s been going on. If you had done the enforcement, these things don’t happen. You saw the pictures. How did the virus get high? That’s how the virus got high. There’s no mystery here, right? Thank you, guys.

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By S. Marcus and R. Borchardt Wednesday, October 7, 2020 at 4:42 am | ‫ י"ט תשרי תשפ"א‬Updated Wednesday, October 7, 2020 at 7:06 pm

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New York Gov. Andrew Cuomo announcing new restrictions Tuesday in COVID-19 hotspots in Brooklyn and Queens.
NEW YORK - Jewish leaders said they were blindsided by New York Governor Andrew Cuomo’s announcement on Tuesday afternoon that houses of worship in the areas with coronavirus outbreaks would be restricted, with some allowed as few as ten worshipers. This came just hours after the Governor convened a conference call with community leaders, asking them for help in reducing occupancy in shuls to 50%.
During the call with Jewish leaders Tuesday morning, Cuomo indicated that if community leaders enforced the 50% guideline, shuls would not be closed. He said, “The current rule is no more than 50%. In any indoor gathering 50% of capacity…in a synagogue in any venue, any private venue. It’s 50% of capacity. That’s the current law. We have to follow that law. If we don’t follow that law then the infection rate gets worse. Then we’re gonna have to go back to close down. And nobody wants to do that. But I need your help in getting the rate down, and the rate will come down. If we follow the rules on the mask and the social distancing and the 50%.”
Later that day, the governor announced that houses of worship in coronavirus ‘hotspots’ could allow a maximum of ten people at services, and non-essential businesses in those areas would be closed, in addition to his Monday announcements that schools in hotspots would be closed.
A participant on the call who spoke to Hamodia on the condition of anonymity expressed frustration with how it transpired, and stressed that Cuomo never indicated he was prepared to take such extreme measures when it came to shuls. “The governor stabbed us in the back by announcing this unprecedented lockdown, and he has the audacity to say that he discussed it with Orthodox leaders and they were very receptive. This is just unbelievable. This is something that our community will never forget. We were looking forward to the opportunity to finally speak directly to the governor, as we were promised.”
The participant added that the only questions Cuomo answered were several “softballs,” which he later found out were pre-approved by the governor’s office, which added to the overall feeling of mistrust.
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Jewish Leaders ‘Blindsided’ by Cuomo’s Shul Restrictions | Hamodia.com https://hamodia.com/2020/10/07/jewish-leaders-blindsided-cuomos-shul-...

The

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participant attempted to address Cuomo by pressing the button he was told to use to

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fEoofrXw1a5Hr3dI, BbuItTit

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never went through.

“I along with my fellow community activists and leaders on the call were shocked to hear the governor ask his operator: “are there any other questions” and then we hear operator respond “there are no other questions sir,” and the call was promptly ended.” The participant later found out the questions had to be pre-approved and believes his attempt to raise a question was deliberately ignored.

“Had the governor taken my question,” the participant said, “he would have heard how detached from the reality on the ground he is. He would have perhaps heard how his draconian proposals are unfair to people who already suffered through the virus. In fact, we were ready to propose that over the holidays only people who have tested positive for antibodies should participate in shul gatherings. Instead the governor pretended that he was ready to listen to us…he lied to us. After telling us that he’ll limit shul participation to 50% capacity, he placed a limit of 10 people. We all feel used, targeted and enraged.”

Jewish organizations and community leaders have condemned what they deem to be Cuomo’s duplicitous way of going about the situation. Many expressed frustration they were not given a warning during Cuomo’s conference call.

Community activist Chaskel Bennett was not on the call, but spoke to those who were. He said to Hamodia, “What Governor Cuomo did today was blindside community leaders who had already been working hard to tamp down on rising coronavirus numbers.” Bennett noted, “there was absolutely no discussion of reducing houses of worship to ten, and communal leaders feel completely betrayed by the governors unilateral decision. It has alienated an already skeptical and suspicious community, making it that much harder for leaders to get the community to buy in on important safeguards needed to stop the spread. The anger and dismay is real. Our schools and shuls are the lifeblood of the community. I worry this sets us back significantly in the ongoing fight against the deadly virus.”

In response to Hamodia’s request for comment as to why the governor indicated on the call that he would stick to a 50% limit but then enacted a 10-attendee limit, a Cuomo spokesperson said, “We were still in discussions with the epidemiologists at the time and they made clear that preventing large social gatherings is the key to breaking up these clusters.” The spokesperson did not respond to Hamodia’s request for comment on allegations about the governor only taking pre-approved questions.

In a statement, Senator Simcha Felder, Assemblyman Simcha Eichenstein, Councilman Chaim Deutsch and Councilman Kalman Yeger strongly condemned Governor’s Cuomo’s decision. They noted that though they represent the neighborhoods facing coronavirus outbreaks, they have not be involved in he decision making process on how to best address the situation. They vowed to continue to educate their communities on the importance of social distancing and masks, and indicated they would push back against the shul closures, stating “Americans are constitutionally permitted to worship freely, and Governor Cuomo may be assured that we intend to exercise that right without his interference.”

In a statement published by Agudah, the organization indicated it would once again sue the Cuomo administration for religious discrimination. The organization added that however they felt about the new policy, they urged compliance with health guidelines.

Following the outcry after Tuesdays events, there were protests that night in Borough Park. At the protest, City Councilman Yeger told the crowd, “We are not going to be deprived of the right that we have in America, like everybody else in America, the right to observe our religion.”

A group of teenagers among the protestors blocked a city bus and pushed around a news photographer. According to social media reports, a counter-protester, himself an Orthodox Jew, was injured during the protest and hospitalized.

—

smarcus@hamodia.com

rborchardt@hamodia.com

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MayorFirst LadyNewsOfficials

October 6, 2020
Mayor Bill de Blasio: Good morning, everybody. We are at a crucial moment in this city, crucial moment in our fight against the coronavirus. Now for seven months, the city's waged a battle and I want to say to all of you, New Yorkers have been heroic in this struggle, fighting back against the coronavirus consistently. Now we have a challenge. We see a rise in cases in certain parts of our city, and we have to get ahead of this. We have to bring everything to bear we can. We’re going to have to be tough about it and that's why I put forward a plan to address the situation and yes, it involves tough restrictions, nothing we want to do, but the kind of thing we need to do and do quickly to get ahead of the problem, to keep this problem limited, to address it in a matter of weeks and not let it spread further.
So, look, we know so much more now than we did at the beginning of this struggle back in March and April when we had so little testing, when we had so much less knowledge about this disease, our fight was very, very difficult, and yet this city did fight back and get to a much better place. Now we have the advantage of much more knowledge, much more testing, and much more understanding amongst the people of the city of what they have to do and they've shown it time and time again. These realities should be great advantages as we fight back these specific problems in specific areas. But again, it will all come down to you, to everyday New Yorkers doing the right thing for yourselves, for your families, for your communities, by practicing the basic rules, basic vision that has worked for us over and over again, the wearing the mask, the social distancing, just doing the smart, basic things that have everyone does together, we turn the tide in our favor.
So let's give you a picture now of what's happening right now in this city. We have a new map that provides a sense of where the challenges are, where the hotspots are, and right now, again, we have nine ZIP codes where we have seen the positively level for the coronavirus above three percent for seven consecutive days. It remains nine ZIP codes. Then we have our watch list and that's tier two where we're watching areas that are in danger of entering that top tier of a particularly troubled ZIP codes. We have a new ZIP code we're adding to that watch list and that is 11206 South Williamsburg, that brings the watch list total to 13. So, again, we're staying stable with nine in the top category

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where

we

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need to end up in that top category. They do not need to experience those deeper restrictions. So,

you can see the number of days consecutive over three percent, thank God, not yet into that

category, but we're warning people in those communities to really buckle down, to take all the right

precautions, to take it seriously. You do not want to see these restrictions in your community. You can

do something about it. You don't want to see small businesses closed in your neighborhood. You can

do something about it. Right now, there is time to turn things around. That's why we're providing this

information to the public in an urgent manner.

So, in terms of the nine ZIP codes I've proposed, I think the way forward, clear sharp restrictions applied quickly. Now obviously with our schools in the nine high risk ZIP codes, those schools, both public and non-public are closed as of this morning. This will be for several weeks, the faster we address the problem on the ground, the faster the community participates, the quicker we can get those schools open again, and as little as two weeks, hopefully no more than four weeks, but we all have a lot of work to do. Now, again, we chose to close the schools out of an abundance of caution, thankfully in our school system, including in the effective ZIP codes, tier one, tier two, we are not seeing any unusual problems, anything out of the ordinary in our schools, thank God. And we continue to do testing outside of schools and in schools, in those effective ZIP codes, testing teachers, staff, watching for problems. I'll give you example, just the last few days we've gotten 1,351 test results from 35 schools in those nine top ZIP codes and only two positive tests among the 1,351 results we've gotten so far.

So, get – excuse me – our educators, our staff school communities are doing a great job. They're doing the right thing. They're being smart about things. Folks understand the hand-wash and the hand sanitizer, the social distancing, the face mask. If sick, they're staying home, people are doing this the right way and it's proven by the testing we're seeing at our schools. So we're going to keep that testing going in the 13 ZIP codes on the watch list, constantly moving from school to school each day, to keep a clear picture on what's going on. Now, the plan related to the nines ZIP codes, obviously presented at the State. We had conversations yesterday morning. I spoke with the Governor and our teams have been talking throughout the day yesterday, constructive conversations, productive conversations that are going to continue into this morning, and we need obviously a clear decision in the course of today. So, we can move forward. The plan I've presented is the template to address this. The State is looking at that template. We understand is their ultimate decision. They can modify as they see fit, but the important thing is to come to a decision quickly so we can get going. We are prepared to implement as soon as tomorrow morning in those nine ZIP codes once we have the sign off from the state.

Now, in the meantime, again, what everyone can do, you're going to have this constant question, how long do these restrictions have to be in place? And I'm going to be talking to a lot of people in the community, I have been already, and my message is the same, you can keep it to a matter of weeks, but everyone has to participate. Everyone has to be part of the solution. If we all do this right, which we did before in much tougher circumstances, we contain this problem to a limited part of the city for a limited period of time, then we reopen in those places and keep moving forward. If we do it wrong, it keeps spreading into surrounding ZIP codes and that endangers the whole city. We cannot let that happen. So, everyone has to be part of the solution.

Now, today is a Tuesday and as always, we talk about testing on Tuesday, get tested Tuesday, look again, what works? Testing, testing, testing, we can say it so many times. You cannot say it enough times, because there's still a huge number of New Yorkers who've never been tested even once. It helps this whole city to get tested because it gives us a picture of what's going on and helps us

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Case 1:20-cv-00651-GLS-DJS understand where our challenges are and

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tested, please go get tested right away. If you haven't been tested a long time, please go get tested. It

is fast. It's easy. We need New Yorkers, not just in those nine ZIP codes or those 13 on the watch list,

but everywhere to get tested. The faster we get the truth, the faster we can act. Now, everybody we're

expanding testing capacity throughout the city, constantly getting it where it's needed most, but

remember we have over 200 sites all over the city. Everyone has a place near them. Always free,

always quick. If you want to know where to go, just go online, nyc.gov/covidtest for locations or call

2-1-2-COVID19, and again, all tests is free.

Now I mentioned the importance of testing at the schools. We've been doing the testing of staff and educators outside schools, and in schools. Starting later this week, we're going to be starting the systematic medical monitoring of schools all over the city. We'll be doing that for every school once a month for the duration of this crisis and it's a way that we get more information, get to watch carefully what's happening. Keep everyone safe. This begins in some schools this Friday, we want to make sure that everyone is participating, that means educators, staff. It means students, everyone. Now, obviously educators and staff are overwhelmingly, ready, willing, and able to get tested, but we need a sign off form. We need a consent form from parents to get a kid tested at their school. So families can now complete the consent form online. You go to your NYC school account and you get that at mystudent.nyc. So just go to mystudent.nyc, your own account, enter in the information on the consent form that automatically makes sure the school knows that your child can be tested.

And look, to all the parents out there. I'm a parent. I want to say this to all of you. This is such a good and smart thing to do. The school community is working very closely with the Department of Health and the Test and Trace Team to make sure everyone is tested, tested quickly, safely, obviously for free. It's a great way to know what is going on in the school and keep everyone safe. You will get the results for your own child, this is a random sample in the sense of it's not every child every month, certain children some month, other children another month. But whenever there is a test of your child, you'll get those results quickly and that's important for your peace of mind. So, all families should participate and sign up on that consent form. The school will be reaching out to you about it as well. If you have any questions or concerns, and obviously we'll talk to people in whatever language they speak to help them understand how this works and to encourage them to sign that form.

Now, families always have questions about testing, want to know more, want to know how it works. Is it fast? Yes. Is it safe? Yes. Is it quick and easy for your child? Not too cumbersome, not too difficult for your child, yes, but we want to not just tell you that we want to show you that, so we've put together a video with one of our eight Health + Hospitals pediatrician and a young volunteer to give you a sense of how things will work. Let's look at the video.

[Video plays in background]

All right, well, thank you, first of all, to Dr. Katie and all our colleagues at Health + Hospitals and everyone who's going to be part of the school testing program. That video really says it all. And look, parents, I want to say to you, as you can see, are very energetic, young volunteer there, had a cool hairstyle too, that he did not have a problem with that test because it's not the long instrument they used to use. It is the much shorter, simpler, just a quick rub around the inside of the nostril and it collects the sample really easily, really quickly. I've had this newer kind of test. It is much better, much simpler. That's what we'll be providing the kids and its as quick and easy as you just saw there.

Now let's talk since we're talking about kids, we're talking about schools, let's talk about what we need to do to make sure that kids continue to be educated during this pandemic. Now that we have our whole school system open, our buildings open, we have kids in classrooms, we have kids

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obviously

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the rest of the week and other kids in all remote, but what does it require? It requires every child has

the technology they need. Now in the spring there was an absolutely astounding effort to get

technology in the hands of kids who needed it, an emergency effort that was really admirable, and I

commend everyone at the DOE and all the partners in the private sector who helped make that

possible, 350,000 iPads were distributed beginning of March, and it was one of the greatest efforts to

address the digital divide in this city's history. Overall, the Department of Education has 950,000

remote learning devices available for students, some obviously are kept in schools, others are given

to kids to take home. That supply has been extraordinary and has reached so much of our needs, but

we still have additional need for 100,000 more iPads according to the surveys we've taken from

parents and families. So, the additional 100,000 iPads are being procured, now they will be provided

to students starting next month. Again, any student who still needs an iPad will get one, or if their

iPad broke or there's any problem, we'll replace it. We need the remote learning, whether it's part of

the week or all week for a child to work, we need them to make sure they get the technology they

need, and we will.

Okay, let's go to our indicators now for the whole city. Indicator number one, daily number of people admitted to New York City hospitals for suspected COVID-19 threshold is 200 patients. Today's report is 70 with a confirmed positivity rate for COVID of 21.4 percent. Number two, new reported cases on a seven-day average, threshold is 550 cases, today's report 501 cases. And number three, percentage of people testing positive citywide for COVID-19 threshold is five percent, today’s report 1.90 percent, and the seven-day rolling average today is 1.65 percent. A few words in Spanish.

[Mayor de Blasio speaks in Spanish]

With that we'll turn to our colleagues in the media. Please let me know the name and outlet of each journalist.

Moderator: Hi, all we'll now begin our Q-and-A. We're joined today by Health Commissioner, Dr. Dave Chokshi, Health + Hospital CEO Dr. Mitchell Katz, Schools Chancellor Richard Carranza, Senior Advisor Dr. Jay Varma, and Jeff Thamkittikasem, Director of the Mayor's Office of Operations. With that, we'll go to Gloria from NY1.

Mayor: Gloria?

Question: Hey Mr. Mayor.

Mayor: Hey, how you doing?

Question: Thank you. I wanted to ask you about something that the Governor said yesterday, and I want to get your reaction because I believe there's a little bit of confusion going around, and I saw that you mentioned the amount of testing that had been done at schools that are in the cluster ZIP codes. Part of what the Governor said yesterday was that the virus transmits, and that's a direct quote from him, “in schools because different communities come together in schools and therefore it is a place of transmission.” I'm wondering if I could get you to weigh in on that as well as the medical experts on the line about whether or not the city believes that schools are a problem as it pertains to the spread of the virus.

Mayor: Let me start and I'll turn to Dr. Varma and Dr. Choskhi. Gloria, that is not what we're seeing. We're going by the facts. We're going by the data. We've had the situation room up now for most of a month. Literally every single day reviewing data from every single school, 1,600 schools in the school

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system,

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initiatives at the schools. What we're seeing in the school system in general is a very low level of

coronavirus activity. Now, I'm going to tell you that the facts that I know, but I want to start with the

why, why would that be? Because the schools are now so concentrated in terms of the safety and

health measures, what we're doing, we've talked about this gold standard we set, just think about

everywhere in the city, everywhere in your life.

Here, we have a place where everyone is wearing a mask scrupulously. I've seen this with my own eyes, from the youngest child to the oldest educator, everyone's wearing a mask together. Everyone's practicing social distancing, nine, ten kids in a classroom. We've never seen anything like that in New York City history. Cleaning constantly, ventilation, you name it, all of these approaches layered on top of each other. That makes it a particularly safe location. Clearly folks who are not feeling well, staying home, been a lot of testing before school began, there’ll continue to be more testing. What we saw with the tens of thousands of educators and staffs that we have tested so far, it was a positivity level below one half of one percent. So, the facts keep coming in, and I told you this recent batch of tests at schools in the nine ZIP codes, 1,351 tests of educators and staff came back with only two positives. So, I think the schools are proving to be very safe to the credit of everyone at DOE, everyone at Test and Trace and Department of Health. And this is what we want to continue, because this is crucial to the future of the city is to keep our school systems safe. So, Dr. Varma, Dr. Chokshi, would you offer your reflections?

Senior Advisor Dr. Jay Varma: Sure, I can start. Yeah, I think the Mayor actually covered everything quite comprehensively. We need to remember that we have many lines of defense to keep our schools safe. We actually have lines of defense that are very similar to what you would have in a healthcare facility, you know, we have people wearing masks. We have people maintaining physical distance. We have extensive hand hygiene, we have environmental cleaning, and then of course we have guidance that's being followed up and tested that people stay home, and avoid going to school if they have any symptoms of illness. Those are critical lines of defense, and it's not just New York City. We have seen evidence from everywhere around the world, and this is a disease that if people take the appropriate precautions and the institution enforces compliance with those precautions, our kids can get an education and our teachers and staff can remain safe. That is in controvertible. I know an issue that keeps coming up also is about testing. You know, I'm a real zealot when it comes to testing, because I think it's absolutely critical to controlling our epidemic around the city, and we have evidence from that from around the world. But testing again, isn't our first line of defense in the city. What we're instituting is a medical monitoring program, because it's going to help us understand how much undiagnosed infection is there and are our prevention measures working the way they should. So I just wanted to make sure that we highlight and understand where testing falls in the hierarchy of those lines of defense.

Mayor: Dr. Chokshi?

Commissioner Dave Chokshi, Department of Health and Mental Hygiene: Nothing to add to what's already been said, sir.

Mayor: Thank you, doctor. Go ahead, Gloria.

Question: Okay. Thank you, and if I could, Mr. Mayor, ask you about this back and forth regarding the nonessential businesses. It seems like there was a disagreement about whether or not the city should do this by ZIP code. The Governor seemed to suggest yesterday this was a flawed approach. You know, the virus doesn't travel by ZIP code, it does not recognize ZIP code. So do you have an understanding of what the Governor's problem is with your plan and are you working on that, and do

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you

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recognition that yes, people do move around, that people are not confined to one specific area or ZIP

code, and that there – maybe there's a smarter way of doing this?

Mayor: I'll start and I'll turn to Dr. Chokshi. Look, we obviously, over the last few days, talked through different models. The Governor had an impulse that I share to say, was there some way to, for example, use census tracts – we found that to be not as helpful as I would have liked because we saw again that we had not only within a ZIP code particular high levels, but we saw it starting to spread to the other areas of the ZIP code. So, the idea here is to of course, focus on the places that are having the toughest situation, but also surround them with activity to make sure that we do not allow spread. So, if you are restricting in the places that are really, really the toughest, you also want restrictions in the immediate surrounding perimeter, and that's why the ZIP code model actually, the more I looked at it, the more sense it made. It was a way to stop the spread from going into more and more neighborhoods, and ZIP code has the advantage, Gloria, that it's not something like everyone knows what the ZIP code is of every building that they go to or every school or whatever, but it's easy to find out. People certainly know their own household ZIP code. It's easy to find out if your store, if your school are in that ZIP code or not, and that was an advantage compared to other demographic or geographic measures we might use.

As to the Governor's team, they – again, good conversations yesterday. They'll continue today. We're looking forward to a decision today. Best of my understanding they did not present a specific alternative. I said, look, here's what I propose. This would work. We all understand what the ZIP code is. This would work. Let's go. We have to act decisively. If they have a different model, it's their call and we'll work with whatever model they choose, but we have to move quickly. Dr. Chokshi.

Commissioner Chokshi: Yes. Mr. Mayor. Just to add briefly to what you've said – what we have to do is match up the epidemiology of the virus, you know, understanding how it is transmitted, the speed with which that spread can happen, with the practical considerations around how to implement these difficult local restrictions and you know, that's how our team has landed on the ZIP codes as the best geographic way to set the boundaries for what we're moving forward with. I'll say two more things. One is that we know that we have to move swiftly that you know, this, this virus has such a formidable foe and so the plans that we have proposed to the state are meant to be able to be brought into action as quickly as possible, and the second point is just to emphasize one thing that the Mayor said, which is that we have been in dialogue with our counterparts at the state, including health officials at the state level to explain our reasoning you know, to explain why it is that we selected the particular ZIP codes that are of greatest concern, and I think there is a lot of shared understanding about the urgency of the situation.

Moderator: We're also joined by Dr. Ted Long, Executive Director of the Test and Trace Corps. With that, we'll move on next to Jen from the AP.

Question: Good morning, Mr. Mayor, how are you?

Mayor: Good, Jen, how are you doing?

Question: Fine, thanks. I guess my first question would be have the hospitals at all started to prepare for a potential surge in patients? Are any of those plans being reactivated?

Mayor: Yeah, I'll start. I'll turn to Dr. Katz. Jen, what we're seeing so far, and, you know, we obviously are very careful and cautious in our assumptions. What we're seeing so far is actually the number of hospitalizations has not moved much. Although the positivity levels for coronavirus have increased,

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the hospital – but we certainly have to be ready for a higher level of hospitalizations. I would say right

now, if this is our starting point, we're in a much better place than we were obviously in the spring,

because whatever is happening now has not moved very quickly in terms of hospitalizations. But

yeah, we have to be ready in case of any scenario. So go ahead, Dr. Katz.

President and CEO Mitchell Katz, NYC Health + Hospitals: Thank you, Mr. Mayor. The 11 hospitals of Health + Hospitals have been a great barometer of the city activity for COVID. We saw many of the trends ahead of anyone else in the last round. I'm very pleased that right at the moment, there are only two patients in the 11 hospitals who currently are on a ventilator due to COVID. So, it is very low, but we nonetheless course have plans for how we would deal with the surge if it were to happen. Every single hospital based on its experience of what works, and frankly, what didn't work in March and April, has a new plan. We know the details, what wards we would open, who would get, who would staff those wards, what the correct order of it, how we would transport patients. There was a tremendous amount that was learned in dealing with the epidemic in March and April, and we'll be prepared if there is another search.

Mayor: Go ahead, Jen.

Question: I also wondered whether – it's a bit of an offbeat question, I guess – but in trying to refine strategies for containing this latest flare up, has any thought been given to tailoring restrictions by some factor, other than geography, such as people's level of risk, like age group?

Mayor: Jen, I'll start and I'll turn to Dr. Varma and Dr. Chokshi. I think one of the things we learned last time, obviously a really, really bad situation in March and April, but we learned a couple of things: move as fast as you can, be decisive, it's much better to put too many restrictions in place and solve the problem quickly then to delay putting restrictions in place. So I think when you parse too much, just as a common sense matter, when you parse too much, you run the risk of too many avenues being left open for the spread of the disease. I think if you say let's really buckle down for a concentrated period of time again, weeks, if done, right, and make sure you're grabbing the whole area that needs to be addressed. You have a much better chance of stopping this problem in its tracks before it reaches the rest of the city. That that's my layman's interpretation, but Dr. Varma, Dr. Chokshi, you want to speak to that?

Senior Advisor Varma: Sure, thanks. I think, you know, the Mayor has summarized it quite well. These restrictive social measures are a bit of a blunt instrument. We reserve them for only situations where our individual measures and our testing and tracing can't keep up with epidemic spread and they have to be applied in an area broader that we might like just simply because of, of the complexity of how societies work and people interact. What you're asking specifically about is an approach that in public health terms, they use the term, the shielding or cocooning, which is it possible to have the most vulnerable people kind of avoid high risk activities and in a way quarantine themselves so that people who are at lower risk and continue their activity, you know, that, that has a lot of theoretical strength to it. But the practical experience for many places in Europe that attempted this early on has really not borne out, and that's because we are all connected to each other. If you're let's say elderly and have medical conditions you need people to help you, and those people are in connection to other people. So, you are really just one or two degrees of separation from other people, and it's really not very effective to try to shield a very large population this way.

Mayor: Dr. Chokshi?

Commissioner Chokshi: Thank you, Mr. Mayor, and thanks for this very good question. I'll just add

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briefly

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experience with the coronavirus globally. Geography does matter, and that's why the plan that we

have proposed focuses on geography in that way. But in addition to what Dr. Varma said there are

other ways, you know, that are not mutually exclusive with thinking about geography as a way to

address risk. Particularly, you know, higher risk settings whether it's a healthcare setting, you know, a

nursing home or other areas where we know, you know, there are higher risk activities, particularly

things that are indoors. Those are also places where we can bring to bear additional ways to protect

people in those higher risk settings. You know, ensuring that that the bread and butter of our

prevention strategies, you know, the so-called “core four” are, are practiced and adhered to in

particular, in those settings.

Moderator: Next step is Henry from Bloomberg.

Question: Mr. Mayor, how are you doing today?

Mayor: Good Henry, how are you?

Question: I'm okay. I've got a couple of questions here. With students who are in these affected areas can still go to schools outside the affected areas, if I'm not mistaken, and if so, does that create an elevated risk?

Mayor: I'll tell you what I think, and Dr. Chokshi can jump in after me. I don't not believe, Henry, I do not believe it creates an elevated risk for a couple of reasons. First is that we see the schools taking extraordinary measures to keep kids and staff safe and it's working. So if kids will be going into a very safe environment and remember the second factor, the screening – we're telling every parent, it is their obligation to screen their child every day. If there’s symptoms, your child stays home. If there's a temperature, your child's is home. If the kid gets to school and there's a temperature to child goes to isolation, is sent home. So there really are safeguards to ensure that if an individual child is even symptomatic that, that is addressed right away. Dr. Chokshi?

Commissioner Chokshi: Thank you, Mr. Mayor. No, I would just briefly emphasize, you know, particularly today as Get Tested Tuesday, we do have a, a simple and clear message for anyone who lives in the affected areas in particular, which is to get tested immediately whether you're a student or someone else who is in that ZIP code, and we think that will also add the layer of protection as the Mayor mentioned.

Mayor: Go ahead, Henry.

Question: Okay. So, thank you for answering that. My other question has to do with, just bear with me here for the – I kind of lost it. Let me see if I can—

Mayor: We can bring you back if you want?

Question: Bring me back in about a minute or two, thank you.

Mayor: You got it.

Moderator: Next up is Derick from WABC.

Question: Hi, good morning. I had a question about this incident that happened last night in Borough Park, the warehouse where the FDNY was seen sawing their way inside, there were reports of 500 people inside, and that it's our understanding that despite some fire safety violations there were no

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have been summonses issued in that situation?

Mayor: Derick, I am waiting to get the full details. I've only gotten a basic report this morning. The most important fact here is, first of all, there never should have been a gathering like that, and the folks who organized it did something harmful and that has to be addressed and we'll address it, certainly in terms of those individuals. Second, the important point, the FDNY got there to address the situation and disperse people, but in terms of summonses and other consequences, I'll get you an update on that. Obviously, something like that cannot happen, particularly in the middle of a crisis where certain ZIP codes are showing of a particularly high level of this disease, and it's a danger to everyone. People have to be smart to not let something like that happen, and there will obviously be consequences. Go ahead.

Question: And then my second question is related to schools. You had mentioned a short time ago that just a couple of coronavirus cases are linked to the schools. I think you said two out of 1,300 tests were positive in those nine ZIP codes, and so based on that information, why go ahead and shut down the schools if by your own admission, you know, people are following the rules, they're wearing masks. If there's very few cases in the schools, then why close the schools?

Mayor: Yeah, Derick, it's a very fair question. This is an imperfect reality, obviously. The fact is across the whole city, the schools are doing a tremendous job and the numbers bear it out, and it is striking testing, you know, staff and educators in the nine ZIP codes at that level, 1,300 tests plus, and getting only one positive back or two positives back. I mean, that's amazing. So in a perfect world, we'd say, hey, let's just keep things going. But I think the reality is if we're really trying to restrict movement and activity within the ZIP code, if we say here are nine ZIP codes out of 146 in New York City that are particularly problematic, we really want to bring the level of activity down. So, let's close the public and nonpublic schools. Let's close the non-essential businesses. Let's encourage people to stay home. Don't go out unless you have to go out and go back to the reality. We had more in the spring, but in a concentrated area, it just stands to reason that even though the schools were doing quite well, we just want to reduce the amount of overall activity for a few weeks, hopefully only, and really stop this spread quickly.

Moderator: We're going to go back to Henry for his last question.

Question: Thank you very much. Actually, that last question and the first question that I asked you pretty much covers the subject of that question. But I have another question for you, which goes back to the continuing theme of the relationship between the City and the State, this governor and your administration, and whether or not just latest split on how do geographically define the areas of risk is another example of how not being on the same page might make just pandemic more problematic.

Mayor: Look, Henry, I think it's pretty straightforward. First of all, again, mayors and governors, not just in New York, but all over the country, will have differences. We have different jobs to do, different interests to look out for. My job is to look out for the people in New York City, nothing else – my job is to look out for the people in New York City. So, right now, I see a problem in Brooklyn and Queens. I want fast action. I want the State to take action because of the emergency status we're in. If we were not in this emergency status, I'd be taking the action myself would be ready to do that right away. I also want the State to look out for New York City, because there's a larger problem in other parts of the state and the metropolitan area. We see other clusters, whether it's Nassau County, Orange County, Rockland County, I want them acted on for the good of the people in those communities, but also to stop the interplay between different parts of the state that could be exacerbating this crisis. So, my job is to look out for the people in New York City. And I think that reality, you know, city,

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Case 1:20-cv-00651-GLS-DJS Document government, state, governments, federal government

57 Filed 10/09/20 often don't see eye

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worldviews, that's normal. But I think if you asked the question here, where have we ultimately

gotten? I think the vast majority of times, the City and State have gotten to the right place together.

Sometimes we start with different perspectives, but we end up getting where we need to get in the

vast majority of cases. So, look, my job here was to put out to the people of the city the reality, that it

became clear that we had a bigger problem that required restrictions, no one likes restrictions, but it

was time to say it out loud. My job was to say that to propose action, because we need the State's

approval. The State has every right to ask tough questions or look at the model and see if they want

to alter the model. That is their right under the law. It's just important they do it quickly and decisively

so we can all move forward. So, really, the proof's in the pudding, Henry, so long as we keep getting

somewhere, so long as we keep making the decisions together and getting to results, that's what

ultimately matters.

Moderator: Next step is Marcia from WCBS.

Question: Good morning, Mr. Mayor. How are you doing good?

Mayor: Good, Marcia. How have you been?

Question: My first question has to do with enforcement. And I know yesterday, the Governor made light of the amount of enforcement that New York City has been doing. And today on NY1, Commissioner Shea was asked about whether he would give a stricter rules to the police officers in the communities about being strict about giving more – more of fines and sentences – fines and things like that. I wonder if you think that more fines for not mask wearing is something that you should be doing, whether you should step up enforcement, and whether you're going to provide NYPD manpower to the Governor's task force?

Mayor: Yeah. No, I spoke to that already. You know, last week, Marcia, we had over 1,000 City personnel out in the most affected communities, including NYPD, Sheriff's Office, Office of Special Enforcement, Health Department, Sanitation Department. They were all out doing enforcement, as well as doing education and mask distribution. It was 400 officers each day last week. We're going to keep increasing that. And as we have additional ZIP codes we need to deal with, we’ll literally keep increasing as much as we have to. Absolutely, we've been doing enforcement for weeks and weeks. In fact, we've closed down businesses, closed down yeshivas, issued summonses, you name it. But what I think is clear here is this is a problem beyond the normal enforcement approach. This is a problem that requires larger restrictions for the community, because we tried in the past and had success in Sunset Park in Brooklyn, in Soundview in the Bronx, in Southeast Queens. We tried an approach that was heavy on outreach, education, masks distribution, of concentrated testing, and enforcement wherever needed – and that worked. In this instance, we saw this problem grow, tried the same strategies, tried more enforcement, it was not turning the tide the way it needed to, because you can only enforce in so many places at so many times. We're now at the point where we need restrictions, hopefully only for a few weeks to really turn the tide here. Go ahead, Marcia.

Question: I also wonder, Mr. Mayor, whether there – because there's a lack of secular education in some of these troubling communities that leads to a lack of compliance, because they don't have the secular education, maybe they don't understand it. Do you think there's a correlation between the lack of secular education and the lack of compliance?

Mayor: I can't – I can't speculate on that, Marcia. I think what we have to do throughout all these ZIP codes is work with everyone. I mean, we've seen tremendous support from community leaders and community institutions. We've seen intensive efforts to educate people on the importance of mask

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wearing,

Case 1:20-cv-00651-GLS-DJS Document 57 the importance of social distancing. We've seen

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plenty of good messaging coming from community leaders and institutions telling people how

important it is. I think there are some voices in many communities, not just here in New York City,

we're seeing it all around the country – there are some voices telling people not to wear masks, telling

them coronavirus is a hoax. You saw a very painful example of that when Dr. Katz and our other

health care leadership gave a press conference a week or two ago, and it was interrupted by a

community resident, literally saying the coronavirus is a hoax. So, we have some of that out there.

But, overwhelmingly, the community leadership has sent a message that's very consistent with what

our health leadership is saying, and everyone is working together to try and solve this problem.

Moderator: Next step is Juliet from 1010 WINS.

Question: Oh, hi. Good morning, all. Good morning, Mr. Mayor. How are you?

Mayor: Good, Juliet. How are you?

Question: I'm okay. Thank you, thank you. So, you just said a couple of minutes ago that schools and some of these non-essential businesses might be closed for a few weeks. What criteria will you use to reopen and how – excuse me – how systematic would that criteria have to be maintained in order for everything to reopen?

Mayor: Yeah, it's a very important question, Juliet. I appreciate it. Look, what we tend to see with the coronavirus – and I've been trained by our great health care leadership here to look for these patterns – there really are pretty clear patterns. When there's an upswing, it tends to go up over a period of days and weeks. When starts to turn in the right direction, you also see that emerge over a period of days and weeks. So, the two-week scenario is the ideal. And I'm not saying it's likely, but it's the ideal. It's the one we want everyone to shoot for, where from the moment the restrictions go into place, two weeks later you can come out of the restrictions. If the full two weeks has passed and the last seven consecutive days that ZIP code was under three percent positivity seven days in a row, that would indicate a trend, obviously. And that's what we be comfortable lifting the restrictions. Now, again, all this is ultimately the decision of the State of New York, but I'm going to keep being very vocal about what we think will work and what we need. We want those restrictions to just be as long as they need to be, not a day more. So, that's the ideal scenario. The other scenario we put forward is a 28-day scenario, four weeks, where if you can't meet that first standard, second standard is go four weeks, if by the last day, the 28th day, you're down below three percent, again, that should show us that enough of the trouble has passed, that we can lift the restrictions. Now, Juliet, people have to take this seriously. If they don't do the work, if the people in every community don't do the work, it could go on longer, and no one wants that. So, ideally, with a lot of, you know, buckling down, a lot of real teamwork and effort by people in communities, you can get this done in just a few weeks, maybe more like three, four weeks, but our goal is weeks and then get the restrictions off. Go ahead.

Question: Okay. Thank you. Also, has anyone in these ZIP codes – in the nine ZIP codes, has anyone been given a summons for not wearing a mask?

Mayor: Yeah. We'll get you those numbers. As I said, there's been a whole range of summons activity and enforcement activity, whether it is yeshivas that were shut down, stores that were shut down, people who were given summonses for not wearing a mask or anything else. But remember, this is an area where we've been adamant, because we know it works. The goal is to change behavior, never, ever wanted to penalize for the sake of penalizing. We've wanted to change behavior. We distribute the masks. If people take the masks and wear the masks, that's what we care about. If someone refuses, that's going to be a penalty right away.

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Case 1:20-cv-00651-GLS-DJS Moderator: We're on to our last two. First,

Document 57 Filed we'll go to Narmeen

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Question: Hi. Good morning, Mayor.

Mayor: How are you doing?

Question: Good, doing well? I want to also – on what Juliet had said – we'd also like to see the numbers on the summons and fines in those nine ZIP codes. So, if your office could get that to us, we'd really appreciate it. But I also think that there's maybe some confusion or maybe some clarification needed for City residents about what City inspectors for compliance of things, like mask wearing, should or does look like. And I want to give you an example – we were in Borough Park for some time in the vicinity of 14th Avenue and 42nd street. And our observations showed minimal masks wearing. We drove around about a 10-block radius and we only saw a handful of people maybe wearing masks. When they saw our cameras come out, people would take it out of their pockets and put it on. We did not see NYPD vehicles with those loudspeaker messages that we saw last week. And we didn't see any obvious signs of City officials going around giving those summons. I mean, this seems to be an area that is in clear defiance of what the Governor and you are talking about.

Mayor: Look, that's not the way I would define it, because we have been working with community leaders and community institutions, getting a lot of support. We've definitely seen an uptick in mask usage, but it's not where it needs to be. We have had loud speaker messages out now for the last week or more. We're going to continue that, of course. There's a lot of ground to cover. So, I respect that you were in a very good location, that's an area I used to represent the City Council, so you chose well. But, look, we're talking about nine ZIP codes. That's a lot of ground to cover. So, we have our folks out over a very broad area, getting this message out all the time, taking the enforcement action. But I want to be clear, again, I think there's a dissonance that has to be addressed very bluntly here. We did all the same measures in a number of communities, and it worked, and things turned around quickly – again, Sunset Park, Soundview, Southeast Queens. We put out the free masks. We did the education. We did the outreach. We did the intensive testing. We were able to turn the situation quickly. We're not seeing that in these nine ZIP codes. It's past the point where enforcement solves your problem. So, people can keep focusing on enforcement. If there's a role for enforcement, it's past that point. Now, the facts on the ground make clear we need restrictions. Enforcement would have worked as it did in the other places. If it had worked that same way as it did in the other places, we wouldn't be having this discussion. We need something stronger and we need it quickly. We need restrictions to stop this problem. Go ahead.

Question: Mayor, have you found it any of those nine ZIP codes to be any more challenging when it comes to enforcement for any of your City inspectors, any ones that stand out that you believe the City has to work, maybe, harder on?

Mayor: I have not heard that specifically. I think what we've seen is that the more education, the more outreach – yes, we've used those sound trucks, the more messages from community leaders, the more impact it makes. But we are fighting against a situation – as I said, there are some parts of the community where there are negative messages being put out, telling people not to wear masks and that coronavirus is a hoax and all that. We are fighting that problem. We are fighting the problem of people, of course, having had the fatigue of being through this crisis now for seven months. And that's understandable. It's hard to keep your guard up for so long. But what we do know is more and more, we're getting support and help from all facets of the community and that restrictions, unlike any of these other tools, restrictions are crystal clear. If non-essential businesses are closed, if public and non-public schools are closed, it's really obvious if someone is violating and you can take instant

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Case 1:20-cv-00651-GLS-DJS Document 57 action on that. That's the kind of measure we need now.

Filed 10/09/20

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Moderator: For our last question, we'll go to Katie from the Wall Street Journal.

Question: Hi, I wanted to ask, coming off the businesses question – I know yesterday, you said that you would close down essential businesses. It's contrary to what the Governor and the State – what the Governor said he wants to do. So, if the Governor does not approve the City's plan to close nonessential businesses and these nine ZIP codes, will the City still move forward and enforce the closure of these businesses?

Mayor: So, Katie, I've been really clear, I'm going to be clear again. I don't know how many times I said on Sunday, pending the State's approval, and I say it again yesterday. I also said we would be ready for Wednesday morning. We're not going to put out a plan, seek approval from the State and then not be ready to implement it. We are ready to implement it, starting tomorrow morning. We are waiting for an answer from the State. We cannot act until we get an answer from the State, it’s as clear as that. And I'm urging the State to move quickly and be decisive. We were at a moment where we need action. We're not going to defy the State. I've never suggested that in the least. I said, I put a proposal on the table to the State. We will be ready to implement it, but we are waiting for sign off.

Question: Oh, thank you. So, what kind of outreach is being done now? Because I know last night you were asked that this is a pretty confusing situation. I think you said that it isn't, but I think for a lot of businesses in these areas, it is confusing. So, what kind of outreach is being done? Is SBS involved? Are people telling businesses? You know, people might now forget what's non-essential and they might forget if their businesses is essential or what can open. So, what kind of outreach is being done if that does happen?

Mayor: Yeah. No, I want to say, I really have empathy for business owners. They've been through so much, this is the last thing they need. It's the last thing they want to hear. I appreciate that. And I want to see these businesses survive, and the notion of even having to close them for a few weeks is painful for everyone. I have empathy for them and I agree, they don't have the clear information they need. I want to get them the clear information they need, but we had to get this situation addressed. And so, I put the proposal out publicly to move the ball, to get things to happen, because my job is to protect people in this city. And we're going to have a decision soon, I'm convinced of that. We will educate everyone in the communities immediately when we have that decision. Clearly, the word has spread. So, by putting the proposal out on Sunday, it gave people a chance to hear it and get ready for it. We will – then, the second we have a final decision from the State, we'll start educating communities. We'll make clear to people what's expected of them. I want to be very, very clear, we do not want to harm anybody. We want to help stop this disease from spreading to more and more of the city. So, we'll get the word out and then we'll start enforcement. Once we've gotten the word out to everyone, we'll start enforcement right away. And at that point, it will be very, very aggressive, because when those restrictions are in place, it'll be crystal clear what's expected of everyone.

Everybody, as we close down today, I just want to say this. Look, this city has come so far, and we came so far by focusing on the data, by focusing on the science. This is what has differentiated New York City from so much of the rest of the United States, and even from a lot of other countries around the world – devotion to following what the actual facts tell us to do. We saw a problem in these last days. It, unfortunately, consolidated. It was time to say we needed stronger restrictions. So, our decisions are based on the data and the science, but in the end, what really changes things, what protects everyone is when the people get involved. New Yorkers are the people who turned the tide last time under the toughest circumstances. New Yorkers will do it again. So, it's the science and the people. And I think this is what was never understood, unfortunately, in Washington D.C. and a lot of

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places

Case 1:20-cv-00651-GLS-DJS Document 57 Filed 10/09/20 around the country – devotion to the science and then belief in the

pPeaogpele1. 4O3nEocefX1y5Ho3uIBedITuca3t-e6

the people, it's up to the people to then take those lessons and act on them. And here in New York

City, New Yorkers did that. We're going to do that again and we're going to keep this city safe. Thank

you, everybody.

pressoffice@cityhall.nyc.gov (212) 788-2958

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 Case 1:20-cv-00651-GLS-DJS Document 58 Filed 10/09/20 Page 1 of 4

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF NEW YORK

REV. STEVEN SOOS, REV. NICHOLAS STAMOS, )
JEANETTE LIGRESTI, as parent and guardian of infant plaintiffs P.L. and G.L, DANIEL SCHONBRUN, )
ELCHANAN PERR, MAYER MAYERFELD, MORTON ) AVIGDOR.
)

) Plaintiffs,
) v.
)

) ANDREW M. CUOMO, Governor of the State of New York, in his official capacity; LETITIA JAMES, Attorney General of the )
State of New York in her official capacity; KEITH M. )
CORLETT, Superintendent of the New York State Police, in his
official Capacity; HOWARD A. ZUCKER, M.D., New York ) State Commissioner of Health, in his official capacity; BETTY A. ROSA, Interim Commissioner of the New York State )
Education Department, in her official capacity; EMPIRE ) STATE DEVELOPMENT CORPORATION (“ESD”), a New
York State Public Benefit Corporation; BILL DE BLASIO, )
Mayor of the City of New York, in his official capacity; DR. DAVE A. CHOKSHI, New York City Commissioner of Health, )
in his official capacity; TERENCE A. MONAHAN, Chief of ) the New York City Police Department, in his official capacity; RICHARD CARRANZA, Chancellor of the New York City )
Department of Education in his official capacity. )

Case No. 1:20-cv-00651-GLS-DJS
Order to Show Cause

) Defendants.
)

Case 1:20-cv-00651-GLS-DJS Document 58 Filed 10/09/20 Page 2 of 4
Sharpe, United States Senior District Judge THIS MATTER coming upon the Court upon the Motion of Plaintiffs for a Temporary Restraining Order (“TRO”) and Order to Show Cause why a TRO and Preliminary Injunction (“PI”) should not issue; and THE COURT NOTING that Plaintiffs, which include two Catholic priests in northern New York, four Jewish individuals in New York City, and two Catholic school children in New York City, allege that Defendants, New York state and local officials, are violating several constitutional rights by implementing and enforcing Executive Order 202.68 and the concomitant “Cluster Action Initiative” and Empire State Development Interpretive Guidance. Plaintiffs specifically allege that EO 202.68’s imposition of new and draconian closure and/or gatheringsize limits on “houses of worship” and religious schools in Red, Orange, and Yellow Zones violates the First and Fourteenth Amendment of the U.S. Constitution. THE COURT NOTING that Plaintiffs have requested that Defendants be temporarily restrained from enforcing any gathering limits and COVID-19 testing requirements on Plaintiffs’ religious gatherings and religious education, or, in the alternative, from enforcing any gathering limits and COVID-19 testing requirements on Plaintiffs’ religious gatherings and religious education greater than Defendants have imposed on similarly situated essential and/or exempted non-essential businesses and essential gatherings under EO 202.68. THE COURT NOTING that Plaintiffs seek the aforementioned relief effective for the upcoming Sabbath at 6 p.m. tonight, October 9, 2020, the beginning of a high holy day of the Jewish religion, and before the beginning of school next week on Monday, October 12, 2020, given the closure of religious schools effective today under EO 202.68.

Case 1:20-cv-00651-GLS-DJS Document 58 Filed 10/09/20 Page 3 of 4

THE COURT FINDING that Plaintiffs have provided sufficient reasons why the Court
should employ an expedited procedure under Local Rule 7.1(e) given the immediacy of Plaintiffs’
application.
IT IS HEREBY ORDERED THAT:
1. Defendants show cause why a temporary restraining order should not be issued under
Federal Rule of Civil Procedure 65 granting Plaintiffs the following relief:
Restraining Defendants from enforcing any gathering limits on Plaintiffs’ religious gatherings or religious education, or, in the alternative, from enforcing any gathering limits on Plaintiffs’ religious gatherings or religious education greater than Defendants have imposed on similarly situated essential businesses or exempted non-essential businesses and essential gatherings under EO 202.68.
2. Defendants must submit a brief on this issue of no more than 25 pages on or before

3. The Court shall hold a temporary restraining order hearing at

. The hearing shall be held via Zoom videoconference. The

Court shall provide the necessary link to counsel via email prior to hearing.

4. If either party wishes to introduce testimony at the hearing, it must provide reasonable

advance notice to the Court and the other party prior to the ………….., 2020 hearing.

5. Plaintiff must serve a copy of this Order and the papers on which it is based on

Defendants on or before

.

Dated: 10/09/2020

Gary L. Sharpe United States Senior District Judge

Case 1:20-cv-00651-GLS-DJS Document 58 Filed 10/09/20 Page 4 of 4
CERTIFICATION IN COMPLIANCE WITH FED. R. CIV. P. 65(b) Notice of this application for an Order to Show Cause why a temporary restraining order should not issue has been provided to opposing counsel by the ECF system and by separate email. Date: October 9, 2020
s:// Christopher A. FerraraChristopher A. Ferrara Counsel for Plaintiffs

 Case 1:20-cv-00651-GLS-DJS Document 53 Filed 10/02/20 Page 1 of 14

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK ----------------------------------------------------------------------- x

REV. STEVEN SOOS, REV. NICHOLAS STAMOS, DANIEL SCHONBURN, ELCHANAN PERR, and MAYER MAYERFELD,

DEFENDANT DE BLASIO’S ANSWER

Plaintiffs,

-against-
ANDREW M. CUOMO, Governor of the State of New York, in his official capacity, LETITIA JAMES, Attorney General of the State of New York in her official capacity, and BILL DE BLASIO, Mayor of the City of New York, in his official capacity,

20-CV-00651

Defendants.

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Defendant the BILL DE BLASIO, Mayor of the City of New York, in his official capacity, by his attorney, JAMES E. JOHNSON, Corporation Counsel of the City of New York, for its answer to the complaint, respectfully alleges as follows:
1. Denies knowledge or information sufficient to form a belief as to the truth of the allegations set forth in paragraph 1 of the complaint, except admits that Plaintiffs purport to proceed as set forth therein.
2. Denies the allegations set forth in paragraph 2 of the complaint, except admits that Plaintiffs purport to proceed as set forth therein.
3. Denies knowledge or information sufficient to form a belief as to the truth of the allegations set forth in paragraphs 3 through 7 of the complaint.
4. Admits the allegations set forth in paragraph 8 of the complaint. 5. Admits the allegations set forth in paragraph 9 of the complaint.

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6. Denies the allegations set forth in paragraph 10 of the complaint, except admits that Defendant de Blasio is the Mayor of the City of New York and that he is being sued in his official capacity, and avers that New York State Executive Orders Nos. 202.3 and 202.5 require the City of New York to adhere to any New York State Executive Orders regarding the COVID-19 public health crisis.
7. Admits the allegations set forth in paragraph 11 through 14 of the complaint.1 8. Neither admits nor denies the allegations set forth in the introduction paragraphs on page 3 of the complaint, as they constitute legal argument to which no response is required. However, to the extent the Court deems a response necessary, denies the allegations and respectfully refer the Court to the case cited therein for its full content and true meaning. 9. Denies the allegations set forth in paragraph 15 of the complaint. 10. Denies the allegations set forth in paragraph 16 of the complaint, except admits that Governor Cuomo announced that the State increased the maximum fine violations of New York state’s social distancing protocol to $1,000.00 and that New York City law enforcement officers have issued Desk Appearance Tickets and summonses for violations of NYC Administrative Code section 3-108, Health Code section 11.31(A)(2) and Executive Law section 24. 11. Denies the allegations set forth in paragraph 17, and respectfully refer the Court to the Guidance Document (attached to the complaint as Exhibits D-G and J) for its complete and accurate content and meaning. 12. Denies the allegations set forth in paragraph 18, except admits that Defendant Cuomo’s phased reopening limited non-essential gatherings to ten or fewer people in Phase 1,
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and avers that New York City is currently in Phase 4, in which indoor religious services are permitted at no more than 33% of the maximum occupancy for a particular area as set by the certificate of occupancy, and non-essential gatherings must be limited to up to 50 persons outdoors.
13. Denies knowledge or information sufficient to form a belief as to the truth of the allegations set forth in paragraph 19 of the complaint.
14. Denies the allegations set forth in paragraph 20 of the complaint, except admits that New York State Executive Order No. 202.38, signed by Governor Andrew M. Cuomo on June 6, 2020 provided that houses of worship within regions in Phase Two of reopening were permitted to have services at no more than 25% of the indoor capacity of such location, and avers that on or about June 26, 2020, Governor Cuomo’s Guidance for Religious Ceremonies and Funeral Services noted that in Phase 2 there could be outdoor gatherings of up to 25 people,2 and respectfully refer the Court to New York State Executive Order No. 202.38 for its full and accurate content and meaning.
15. Denies the allegations set forth in paragraph 21 of the complaint, and avers that New York City was in Phase 1 at the time of the filing of the complaint, and is currently in Phase 4, in which indoor religious services are permitted up to 33% of the maximum occupancy for a particular area as set by the certificate of occupancy.
16. Denies the allegations set forth in paragraphs 22 and 23 of the complaint.
1 Paragraph 11 appears to have a typographical error. Plaintiffs reference “42 U.S.C. section 1920” instead of “28 U.S.C. section 1920” which they reference properly in paragraph 13. 2 Governor Cuomo’s Guidance for Religious Ceremonies and Funeral Services can be located at: https://www.governor.ny.gov/sites/governor.ny.gov/files/atoms/files/ReligiousandFuneralServic esSummaryGuidance.pdf
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17. Neither admits nor denies the allegations set forth in paragraph 24 of the complaint as they legal conclusions for which no answer is required, however, to the extent the Court requires an answer, denies the allegations.
18. Denies the allegations set forth in paragraphs 25 and 26 of the complaint. 19. Denies the allegations set forth in paragraph 27 of the complaint, except admits that Plaintiffs purport to proceed as set forth therein. 20. Admits the allegations set forth in paragraph 28 of the complaint, and avers that Executive Order 202 was also based upon the World Health Organization’s designation of COVID-19 being a health emergency of international concern, as well as based upon the United States Department of Health and Human Services’ declaration of a public health emergency due to COVID-19. 21. Denies the allegations set forth in paragraph 29 of the complaint, except admits that Executive Order 202 was followed by a series of executive orders. 22. Admits the allegations set forth in paragraph 30 of the complaint, and avers that the Orders are also premised on the March 7, 2020 declaration of emergency (Order 202). 23. Denies the allegations set forth in paragraphs 31 and 32 of the complaint, and respectfully refers the Court to Exhibit B annexed to the complaint for its complete and accurate content and meaning. 24. Admits the allegations set forth in paragraphs 33 through 35 of the complaint. 25. Denies the allegations set forth in paragraph 36 of the complaint, and respectfully refers the Court to New York State Executive Order No. 202.6 for its complete and accurate text and meaning.
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26. Denies the allegations set forth in paragraph 37 of the complaint, except admits that Governor Cuomo issued New York State Executive Order No. 202.8 on March 20, 2020, which, inter alia, directed non-essential employers to reduce their in-person workforce by 100% and stated that any business violating such order “shall be subject to enforcement as if this were a violation of an order pursuant to section 12 of the Public Health Law.”
27. Admits the allegations set forth in paragraph 38 of the complaint. 28. Denies knowledge or information sufficient to form a belief as to the truth of the allegations set forth in paragraph 39 of the complaint. 29. Denies the allegations set forth in paragraphs 40 and 41 of the complaint and respectfully refers the Court to New York State Executive Order 202.31 for its complete and accurate text and meaning. 30. Denies the allegations set forth in paragraphs 42 and 43 of the complaint, except admits that New York State Executive Order 202.32 modified prior orders which prohibited all non-essential gatherings to permit gatherings of ten or fewer people for religious services or ceremony or for Memorial Day services provided that social distancing protocols and disinfection protocols required by the Department of Health are followed, and that New York State Executive Order 202.23 provides that any drive in or remote religious service may continue in excess of the ten person limit so long as there was no contact between participants, and respectfully refer the Court to Executive Order 202.23 for its complete and accurate text and meaning. 31. Denies the allegations set forth in paragraph 44 of the complaint, except admits that by Executive Order 202.33, Governor Cuomo lifted the prohibition of non-essential
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gatherings of any size and authorized gatherings for any non-essential gatherings of ten or fewer individuals.
32. Denies the allegations set forth in paragraph 45 of the complaint, except denies knowledge or information sufficient to form a belief regarding where and whether Plaintiffs Soos and Stamos engage in priestly activity, and respectfully refer the Court to New York State Executive Order 202.34 for its complete and accurate content and meaning.
33. Denies the allegations set forth in paragraph 46 of the complaint, except admits that pursuant to Executive Order 202.35, certain businesses in the Finger Lakes, Central New York, Mohawk Valley, Southern Tier and the North Country regions were allowed to reopen subject to the guidance of the Department of Health.
34. Denies the allegations set forth in paragraph 47 of the complaint, except denies knowledge or information sufficient to form a belief as to the truth of the allegations regarding where Plaintiffs Soos and Stamos conduct their ministry, and except admits that the ten-person gathering limitation was still applicable to religious gatherings on May 29, 2020, and respectfully refers the Court to New York State Executive Order 202.35 for its complete and accurate content and meaning.
35. Denies the allegations set forth in paragraph 48 of the complaint, except admits that pursuant to Executive Order 202.36, certain outdoor, low-risk recreational activities and businesses providing such activities in Phase 1 geographic areas were allowed to reopen subject to the Department of Health guidance, and respectfully refers the Court to New York State Executive Order 202.36 for its complete and accurate content and meaning.
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36. Denies the allegations set forth in paragraph 49 of the complaint and respectfully refers the Court to New York State Executive Order 202.36 for its complete and accurate content and meaning.
37. Denies the allegations set forth in the subheading, “Defendant Cuomo’s ‘Guidance’ Document Targets Religion” and admits the allegations set forth in paragraph 50 of the complaint.
38. Denies the allegations set forth in paragraph 51and 52 of the complaint, and respectfully refers the Court to the Guidance Document for its complete and accurate content and meaning.
39. Denies the allegations set forth in paragraph 53 of the complaint, except admits that Mayor de Blasio tweeted as set forth therein.
40. Denies the allegations set forth in paragraph 54 of the complaint, except admits that Mayor de Blasio tweeted as set forth therein.
41. Denies the allegations set fort in paragraph 55 of the complaint, and respectfully refers the Court to the Guidance Document for the complete and accurate text and meaning.
42. Denies the allegations set forth in paragraph 56 of the complaint, except admits that pursuant to Executive Order 202.38, non-essential gatherings in houses of worship were authorized at no greater than 25% of the indoor capacity of such location in Phase 2 geographic areas so long as they adhered to social distancing protocols and cleaning and disinfection protocols required by the Department of Health, and respectfully refers the Court to Executive Order 202.38 for its complete and accurate meaning and content.
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43. Denies the allegations set forth in paragraph 57 of the complaint, except admits that the allegations were true as of the date the complaint was signed, and avers that New York City is currently in Phase 4 which allows indoor religious services to be held at no more than 33% of the maximum occupancy for a particular area as set by the certification of occupancy and allows outdoor gatherings of up to 50 people.
44. Denies the allegations set forth in paragraph 58 of the complaint and respectfully refer the Court to the transcript excerpt, annexed to the complaint as Exhibit K to the complaint, for its complete and accurate content and meaning.
45. Denies knowledge or information sufficient to form a belief as to the truth of the allegations set forth in paragraph 59 of the complaint to the extent they refer to Defendant Cuomo, and denies the remainder of the allegations set forth in paragraph 59 of the complaint.
46. Denies the allegations set forth in the subheading, “Defendants Cuomo and de Blasio Exempt Favored Protestors From their ‘Social Distancing’ Regime,” and denies the allegations set forth in paragraphs 60 and 61 of the complaint.
47. Denies knowledge or information sufficient to form a belief as to the truth of allegations set forth in paragraphs 62 through 67 of the complaint.
48. Denies the allegations set forth in paragraph 68 of the complaint. 49. Denies the allegations set forth in paragraph 69 of the complaint, and respectfully refer the Court to the video referenced in the complaint for its complete and accurate content and meaning. 50. Denies the allegations set forth in paragraph 70, and respectfully refer the Court to the transcript, annexed to the complaint as Exhibit P, for its complete and accurate content and meaning.
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51. Denies the allegations set forth in paragraph 71 of the complaint, except admits that Mayor de Blasio spoke at a large gathering of people at Cadman Plaza who had gathered in response to the death of George Floyd where the ten-person limit on gatherings was not observed, and that Mayor de Blasio did not wear a mask while he spoke, and except denies knowledge or information sufficient to form a belief as to the truth of the allegations regarding whether social distancing as required by the Executive Orders was observed.
52. Denies knowledge or information sufficient to form a belief as to the truth of the allegations set forth in paragraph 72 of the complaint.
53. Denies the allegations set forth in paragraph 73 of the complaint, except denies knowledge or information sufficient to form a belief as to the truth of the allegations regarding Governor Cuomo, and avers that the referenced Exhibit does not mention Mayor de Blasio.
54. Denies the allegations set forth in paragraphs 74 through 76 of the complaint. 55. Denies knowledge or information sufficient to form a belief as to the truth of the allegations set forth in paragraphs 77 through 85 of the complaint, except admits that New York Executive Order 202.38 expanded the limitation on religious gatherings in houses of worship in Phase 2 regions to up to 25% of the indoor capacity of such locations. 56. Denies the allegations set forth in paragraphs 86 and 87 of the complaint. 57. Denies knowledge or information sufficient to form a belief as to the truth of the allegations set forth in paragraphs 88 through 97 of the complaint. 58. Denies the allegations set forth in paragraph 98 of the complaint. 59. Admits the allegations set forth in paragraph 99 of the complaint, and avers that the North Country is now in Phase 4 which allows indoor religious services to be held at no
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more than 33% of the maximum occupancy for a particular area as set by the certification of occupancy and allows outdoor gatherings of up to 50 people.
60. Denies knowledge or information sufficient to form a belief as to the truth of the allegations set forth in paragraph 100 of the complaint, except denies that the ten-person limit was not applicable to the George Floyd demonstrations.
61. Denies the allegations set forth in paragraph 101 of the complaint, and avers that ten-person outdoor limit is no longer in effect and that in the North Country outdoor gatherings are limited to no more than 50 persons.
62. Denies the allegations set forth in paragraph 102 of the complaint, except admits that Plaintiffs purport to proceed as set forth therein.
63. Denies knowledge or information sufficient to form a belief as to the truth of the allegations set forth in paragraphs 103 through 113 of the complaint, and avers that the tenperson limitation is no longer applicable in New York City and which allows indoor religious services to be held at no more than 33% of the maximum occupancy for a particular area as set by the certification of occupancy and allows outdoor gatherings of up to 50 people
64. Denies the allegations set forth in paragraphs 114 and 115 of the complaint, except admits that defendant de Blasio appeared in Williamsburg to ensure the dispersal of a large Jewish funeral gathering that was in violation of the Orders.
65. Denies knowledge or information sufficient to form a belief as to the truth of the allegations set forth in paragraphs 116 through 126 of the complaint, except denies that the NYPD or other law enforcement officers working for the City of New York acted improperly or contrary to law or violated Plaintiff Schonbrun’s constitutional rights.
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66. Denies knowledge or information sufficient to form a belief as to the truth of the allegations set forth in paragraph 127, except admits that the Guidance Document published on April 10, 2020 stated that “all non-essential gatherings or individuals of any size for any reasons (e.g. worship services, parties, celebrations, or other social events) are cancelled or postponed. Congregate services within houses of worship are prohibited.”
67. Denies knowledge or information sufficient to form a belief as to the truth of the allegation set forth in paragraph 128 through 130 of the complaint, except denies that the NYPD or other enforcement officers working for the City of New York acted improperly or contrary to law or violated Plaintiff Schonbrun’s constitutional rights.
68. Denies the allegations set forth in paragraph 131 of the complaint, except denies knowledge or information sufficient to form a belief as to the truth of the allegations regarding Plaintiff Schonbrun’s observations.
69. Denies knowledge or information sufficient to form a belief as to the truth of the allegation set forth in paragraph 132 through 146 of the complaint, except denies that the NYPD or other enforcement officers working for the City of New York acted improperly or contrary to law or violated Plaintiff Perr’s constitutional rights.
70. Denies knowledge or information sufficient to form a belief as to the truth of the allegations set forth in paragraph 147, except admits that the Guidance Document issued on April 10, 2020 had prohibited “Congregate services within houses of worship.”
71. Denies knowledge or information sufficient to form a belief as to the truth of the allegations set forth in paragraphs 148 through 153 of the complaint, except denies that the NYPD or other enforcement officers working for the City of New York acted improperly or contrary to law or violated Plaintiffs Perr’s and Mayerfield’s constitutional rights.
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72. Denies the allegations set forth in paragraph 154 of the complaint, except denies knowledge or information sufficient to form a belief as to the truth of the allegations regarding Plaintiff Mayerfield’s actions or the actions of “a Sephardic synagogue.”
73. Denies knowledge or information sufficient to form a belief as to the allegations set forth in paragraphs 155 through 159 of the complaint, except denies that the NYPD or other enforcement officers working for the City of New York acted improperly or contrary to law or violated Plaintiff Mayerfield’s constitutional rights.
74. Denies the allegations set forth in paragraph 160 of the complaint. 75. Denies knowledge or information sufficient to form a belief as to the truth of the allegations set forth in paragraphs 161 through 163 of the complaint, except denies that the NYPD or other enforcement officers working for the City of New York acted improperly or contrary to law or violated Plaintiff Mayerfield’s constitutional rights. 76. In response to paragraph 164 of the complaint Defendant de Blasio re-asserts his responses to paragraphs 1 through 163 of the complaint as if set forth herein. 77. Denies knowledge or information sufficient to form a belief as to the truth of the allegations set forth in paragraph 165. 78. Neither admits nor denies the allegations set forth in paragraphs 166 of the complaint, as they contain legal argument for which no response is required, however if the Court requires a response, denies the allegations. 79. Denies the allegations set forth in paragraph 167 through 177 of the complaint. 80. In response to paragraph 178 of the complaint Defendant de Blasio re-asserts his responses to paragraphs 1 through 163 of the complaint as if set forth herein.
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81. Neither admits nor denies the allegations set forth in paragraphs 179 and 180 of the complaint, as they contain legal argument for which no response is required, however if the Court requires a response, denies the allegations.
82. Denies the allegations set forth in paragraphs 181 through 186 of the complaint.
83. In response to paragraph 187 of the complaint Defendant de Blasio re-asserts his responses to paragraphs 1 through 184 of the complaint as if set forth herein.
84. Neither admits nor denies the allegations set forth in paragraph 188 of the complaint as they contain legal argument and conclusions for which no response is required, however if the Court were to deem a response necessary, denies the allegations.
85. Denies the allegations set forth in paragraphs 189 through 197 of the complaint.
86. In response to paragraph 198 of the complaint Defendant de Blasio re-asserts his responses to paragraphs 1 through 195 of the complaint as if set forth herein.
87. Denies the allegations set forth in paragraph 199 of the complaint, and respectfully refers the Court to New York State Executive Orders and to the New York State Executive Law section 29-a for their complete and accurate content and meaning.
88. Denies the allegations set forth in paragraphs 200 through 210 of the complaint.
AS AND FOR A FIRST AFFIRMATIVE DEFENSE 89. The complaint fails to state a claim against Defendant de Blasio upon which relief can be granted.
AS AND FOR A SECOND AFFIRMATIVE DEFENSE
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90. Plaintiffs’ rights under the United States Constitution, the laws of the United States, the State of New York or the City of New York have not been violated by Defendant de Blasio or by any employee or agent of the City of New York.
AS AND FOR A THIRD AFFIRMATIVE DEFENSE 91. Defendant Cuomo’s actions of enacting the Challenged Regulations are not ultra vires.

WHEREFORE, Defendant de Blasio demands judgment dismissing the

complaint as against him, awarding him costs and disbursements in this action, including

reasonable attorneys’ fees, and granting such other and further relief as the Court may deem just

and proper.

Dated:

New York, New York October 2, 2020

JAMES E. JOHNSON Corporation Counsel of the City of New York Attorney for Defendant 100 Church Street New York, NY 10007 (212) 356-4371

By:______/s/_____________________ Melanie V. Sadok (MS 6741) admitted pro hac vice Ellen Parodi (EP 7312) admitted pro hac vice

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When mass protests against police violence were exempted from New York’s COVID-19 gathering restrictions, but congregational worship continued to be prohibited, two Catholic priests and three Orthodox Jews brought this lawsuit, alleging that New York officials were discriminating against people of faith.  The court granted a preliminary injunction on June 26, 2020.