Bravo v. De Blasio
| Decision Date | 06 April 2022 |
| Docket Number | Index No. 522638/2021 |
| Parties | Yudelka BRAVO, Omar Clarke, Peggy Mansanet and Onika Williams, Plaintiff, v. Bill DE BLASIO, in his official capacity as Mayor of the City of New York, and the City of New York, Defendant. |
| Court | New York Supreme Court |
Attorney for Petitioners, Sheldon Karasik, Esq., Law Offices of Sheldon Karasik, 1127 Fordham Lane, Woodmere, NY 11598
Attorney for Bill De Blasio and the City of New York, Kerri Devine, Esq., Jasmine Paul, Esq., New York City Law Department, 100 Church Street, 5th Fl., New York, NY 10007
Francois A. Rivera, J. Notice of petition filed on September 3, 2021, under motion sequence number one, by petitioners Yudelka Bravo (hereinafter Bravo), Omar Clarke (hereinafter Clarke), Peggy Mansanet (hereinafter Mansanet), and Onika Williams (hereinafter Williams), (hereinafter collectively as petitioners) for a judgment, pursuant to CPLR Article 78, permanently enjoining enforcement of Mayor Bill de Blasio's Emergency Executive Order (EEO) No. 225 (hereinafter "EEO 225" or "Key to NYC"). The petition is opposed.
On September 2, 2021, the petitioners Bravo, Clarke, Mansanet, and Williams commenced the instant CPLR Article 78 proceeding against Bill de Blasio in his official capacity as Mayor of the City of New York and the City of New York by electronically filing a verified petition, affidavits, annexed exhibits (hereinafter the commencement papers) and a request for judicial intervention (hereinafter RJI) with the Kings County Clerk's office (hereinafter KCCO). On September 3, 2021, the petitioners filed a notice of petition with the KCCO.
The verified petition alleges fifty-four allegations of fact in support of three causes of action. The first cause of action alleges that New York City is preempted from regulating communicable diseases. The second cause of action alleges that EEO 225 violates the New York State Constitution. The third cause of action alleges that EEO 225 violates the New York City Human Rights Law.
The petition alleges the following salient facts. On August 16, 2021, New York City Mayor Bill de Blasio issued EEO 225. EEO 225, effective on August 17, 2021, prohibited "a patron, full- or part-time employee, intern, volunteer, or contractor" from entry into any New York "indoor entertainment and recreational setting," "indoor food service" or "indoor gyms and fitness setting" unless vaccinated with "at least one dose of a COVID-19 vaccine authorized for emergency use or licensed for use by the U.S. Food and Drug Administration or authorized for emergency use by the World Health Organization." The failure to comply with EEO 225 may result in financial penalties including $1,000 fines per violation which increase to $2,000 if a secondary violation occurs within 12 months of the first violation, with a further increase to $5,000 if a third violation occurs within 12 months of the secondary violation.
The petitioners allege that EEO 225 disproportionally affects small businesses and minority groups particularly Black1 people, who are alleged to have the lowest vaccination
rate of all ethnicities in America. The petitioners allege that they have been directly, severely, and irreparably harmed by EEO 225. Clarke, a Black resident, an adjunct lecturer, and student advisor at John Jay College, alleges that the COVID-19 vaccine would put his health at risk. Mansanet, a Black resident of New York City, alleges that EEO 225's mandate interferes with her ability to work at the gym where she was employed. Williams, a Black business owner and pre-Kindergarten teacher, with Crohn's disease, alleges that the COVID-19 vaccine would put her health at risk and negatively impact her business. The petitioners seek a permanent injunction from EEO 225.
On November 11, 2021, respondents Bill de Blasio, in his official capacity as Mayor of the City of New York, and the City of New York interposed a verified answer and supporting documents in response to the petition.
Petitioner's commencement papers consist of a notice of petition, a verified petition, an affidavit by each petitioner, and four annexed exhibits labeled A to D. Exhibit A is denominated as the Declaration of Robin Armstrong, M.D. Exhibit B is denominated as the Declaration of Kevin Jenkins. Exhibit C is denominated as the Declaration of Paul Elias Alexander, Ph.D. Exhibit D is denominated as the Declaration of Christina Parks, Ph.D.
The respondents' answering papers consist of a verified answer, four annexed exhibits labeled A to D, the affirmation of Dr. Jay Varma, and a memorandum of law in opposition. Exhibit A is a copy of EEO 225 signed by Mayor Bill de Blasio and dated August 16, 2021. Exhibit B is a copy of Emergency Executive Order No. 250 signed by Mayor Bill de Blasio and dated September 24, 2021. Exhibit C is a copy of Emergency Executive Order No. 98 signed by Mayor Bill de Blasio and dated March 12, 2020. Exhibit D includes a thirty-page document entitled May Coronavirus Poll Findings , prepared by Global Strategy Group for the NYC Economic Development Corporation.
The petitioners' reply papers consist of a memorandum of law, an affirmation of counsel and three annexed exhibits labeled A to C. Exhibit A is a copy of document denominated as the Reply Declaration of Paul Elias Alexander, Ph.D. Exhibit B is a copy of the decision and order of Justice Lizette Colon in the matter of Independent Restaurant Owners Association Rescue v. Bill de Blasio dated September 10, 2021. Exhibit C is a copy of the opinion of the Commonwealth Court of Pennsylvania in the matter of Corman, et. al v. Acting Secretary of the Pennsylvania Department of Health dated November 10, 2021.
COVID-19 has killed over six million people worldwide, with over 978,000 of those deaths taking place in the United States and 67,000 of those deaths taking place in New York State. . The Key to NYC program was initially passed by then Mayor de Blasio on August 16, 2021, pursuant to the state of emergency first declared by then Governor Andrew Cuomo in March 2020. It has since been amended, superseded, and extended by subsequent executive orders, including EEOs 226, 228 and 239. The relevant operative language of the Key to NYC is set forth in EEO 250, signed on September 24, 2021, and was effective as of the date of commencement of the instant petition pursuant to EEO 287, dated November 8, 2021.
The Key to NYC provides that, except as otherwise provided, "a covered entity shall not permit a patron, full- or part-time employee, intern, volunteer, or contractor to enter a covered premises without displaying proof of vaccination
and identification bearing the same identifying information as the proof of vaccination."
A "covered entity" means "any entity that operates one or more covered premises, except that it shall not include pre-kindergarten through grade twelve (12) public and non-public schools and programs, houses of worship, child-care programs, senior centers, community centers, or as otherwise indicated by this Order."
As of the date of this decision, order and judgment, Honorable Bill De Blasio's term as the Mayor of the City of New York expired, Eric Adams' term as the Mayor of the City of New York began and Eric Adams ended the Key to NYC program.
The mootness doctrine ordinarily applies to deprive a court of the ability to review a case where, as here, a change in circumstances between the parties has eliminated the controversy that once existed ( Liu v. Ruiz , 200 A.D.3d 68, 72, 158 N.Y.S.3d 25 [2nd Dept. 2021], see also Matter of Dreikausen v. Zoning Bd. of Appeals of City of Long Beach , 98 N.Y.2d 165, 172, 746 N.Y.S.2d 429, 774 N.E.2d 193 [2002] ). However, an exception exists where the case presents "(1) a likelihood of repetition, either between the parties or among other members of the public; (2) a phenomenon typically evading review; and (3) a showing of significant or important questions not previously passed on, i.e., substantial, and novel issues" ( Liu , 200 A.D.3d at 72, 158 N.Y.S.3d 25 [2nd Dept. 2021], citing Matter of Hearst Corp. v. Clyne , 50 N.Y.2d 707, 714-715, 431 N.Y.S.2d 400, 409 N.E.2d 876 [1980] ).
Inasmuch as there is a likelihood of repetition of the mandates set forth in EEO 225 depending on a change in circumstances presented by a new COVID-19 variant, and the issues raised are important and novel, the instant petition falls under the exception to the mootness doctrine and will be adjudicated on the merits.
A permanent injunction is a drastic remedy which may be granted only where the plaintiff demonstrates that it will suffer irreparable harm absent the injunction ( Swartz v. Swartz , 145 A.D.3d 818, 828, 44 N.Y.S.3d 452 [2nd Dept. 2016] ).
Unlike a complaint in a plenary action, a petition in a special proceeding, in which a summary determination will be made upon the pleadings, papers, and admissions to the extent that no triable issues of fact are raised, must be accompanied by competent evidence ( FR Holdings, FLP v. Homapour , 154 A.D.3d 936, 63 N.Y.S.3d 89 [2nd Dept. 2017] ).
The petition is verified by one of the petitioners, Williams and includes seven sworn declarations of fact. Three out of the four petitioners submitted an affidavit. The other four sworn declarations of fact were submitted by Dr. Robin Armstrong, Kevin Jenkins, Paul Elia Alexander,...
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