C.F. v. N.Y.C. Dep't of Health & Mental Hygiene

• Decision Date: 23 December 2020
• Docket Number: Index No. 508356/19,2019–04455
• Citation: 191 A.D.3d 52,139 N.Y.S.3d 273
• Parties: C.F., etc., et al., appellants, v. NEW YORK CITY DEPARTMENT OF HEALTH AND MENTAL HYGIENE, et al., respondents.
• Court: New York Supreme Court — Appellate Division

191 A.D.3d 52

139 N.Y.S.3d 273

C.F., etc., et al., appellants,

v.NEW YORK CITY DEPARTMENT OF HEALTH AND MENTAL HYGIENE, et al., respondents.

2019–04455

Index No. 508356/19

Supreme Court, Appellate Division, Second Department, New York.

Argued—November 2, 2020

December 23, 2020

Law Office of Robert J. Krakow, P.C., New York, N.Y. (Robert J. Krakow, Robert F. Kennedy, Jr., and Elan Gerstmann of counsel), for appellants.

James E. Johnson, Corporation Counsel, New York, N.Y. (Jeremy W. Shweder and Daniel Matza–Brown of counsel), for respondents.

ALAN D. SCHEINKMAN, P.J., MARK C. DILLON, HECTOR D. LASALLE, LINDA CHRISTOPHER, JJ.

OPINION & ORDER

SCHEINKMAN, P.J.

On April 17, 2019, the Board of Health of the Department of Health and Mental Hygiene of the City of New York adopted a resolution stating that, due to the active outbreak of measles

among people residing within certain areas of Brooklyn, any person over the age of six months who was living, working, or attending school or child care in the affected areas had to be immunized against measles

, absent a medical exemption. Failure to comply was made punishable by fines authorized by law, rule, or regulation, for each day of noncompliance. The plaintiffs/petitioners (hereinafter the petitioners), residents of areas covered by the resolution, challenge its validity. We hold that the resolution was lawful and enforceable, reserving, however, whether any fine imposed upon violation is excessive. The resolution was within the authority of the Board of Health of the Department of Health and Mental Hygiene to make and the resolution itself did not violate any right of the petitioners, including their freedom of religion.

RELEVANT FACTS

Measles

is a highly contagious viral disease that can result in serious health complications, including pneumonia and swelling of the brain, and may cause death. While measles can be serious in all age groups, children, pregnant women, and people with compromised immune systems are more likely to suffer from measles complications. Measles may cause both short-term and long-term complications.

Measles

is easily transmitted from person to person and is one of the most contagious of all infectious diseases. Up to 90% of non-immunized persons who come into contact with a measles patient, or a space where a measles patient has recently been, will develop measles. The virus is transmitted by direct contact with infectious droplets or by airborne spread when an infected person breathes, coughs, or sneezes. The virus can live for up to two hours in air or on surfaces where an infected person coughed or sneezed. If a non-immunized person breathes contaminated air or touches an infected surface, and then touches his or her eyes, nose, or mouth, the person may become infected. A person can spread measles from four days before through four days after the appearance of a rash. Measles is so contagious that each new case of it severely hinders the ability of health officials to curb an outbreak, especially in communities with higher rates of unvaccinated, non-immune individuals. The Centers for Disease Control (hereinafter CDC) places importance on prompt recognition, reporting, and investigation of measles so that the spread of the disease can be limited with early case identification and public health response, including vaccination.

The Measles–Mumps–Rubella (hereinafter MMR) vaccine has proven to be effective in preventing the transmission of measles

. Prior to the start of a measles vaccination program in 1963, an estimated three to four million people contracted measles each year in the United States. By 2000, measles transmission was declared eliminated in the United States, though there have been scattered outbreaks. People who have received the MMR vaccine do not infect others and are not responsible for measles transmission. The CDC recommends that children receive two doses of the MMR vaccine, the first dose at between 12 to 15 months of age and a second dose at between 4 to 6 years of age. New York has long required that school children be vaccinated against specified diseases as a condition of attendance at public school (see Public Health Law § 2164 ), a requirement long and repeatedly held to be constitutional (see

Matter of

Viemeister, 179 N.Y. 235, 72 N.E. 97 [smallpox ]; McCartney v. Austin, 31 A.D.2d 370, 298 N.Y.S.2d 26 [polio, smallpox, and measles ]; Phillips v. City of New York, 775 F.3d 538 [2d Cir.] [chicken pox ] ).

Despite the success of the long-standing vaccination

program, measles outbreaks, defined as three or more cases, have been occurring in recent times. There were 17 outbreaks in 2018, most of which occurred in New York and New Jersey, mostly attributable to unvaccinated persons in Orthodox Jewish communities. According to the CDC, from January 1 to April 11, 2019, some 555 individual cases of measles

were confirmed in 20 states, the second-largest number of cases reported in the United States since measles was eliminated in 2000.

An outbreak of measles

began in the Williamsburg and Borough Park sections of Brooklyn in early October 2018. To address the situation, the Department of Health and Mental Hygiene of the City of New York (hereinafter the City Health Department or the Department) undertook significant outreach efforts in the affected communities, including meeting with community leaders, making thousands of robo-calls to households, sending letters to school principals and parents of students, communicating with local elected officials, embedding staff in medical centers within the community, and distributing additional doses of the MMR vaccine to community healthcare providers. These efforts resulted in more than 8,700 additional vaccinations in Williamsburg and Borough Park between October 1, 2018, and April 14, 2019, compared to the same time period the year prior.

The existence of the measles

outbreak in New York City did not go unnoticed by the State Legislature. It acted by repealing the religious exemption from mandatory vaccination for school children. The legislative history reflects the legislative finding that outbreaks in New York had been the primary driver of the worst outbreak of measles in the United States since 1994, with 810 of the 880 nationwide cases in 2019 (see

Doe v. Zucker, 2020 WL 6196148, 2020 U.S. Dist LEXIS 196279 [N.D. N.Y., No. 1:20–cv–840 (BKS/CFH) ] [rejecting challenge to allegedly burdensome medical exemptions to mandatory school immunization requirements] ). The elimination of the religious exemptions took effect on June 13, 2019 (see L 2019, ch 35, § 1, repealing Public Health Law § 2164[9] ).

Notwithstanding efforts to control the outbreak, the incidence of measles

continued to spread. As of April 15, 2019, 267 cases were reported in Williamsburg and 52 were reported in Borough Park. Twenty-five individuals were hospitalized, six in intensive care. Fifty-two chains of transmission, discrete outbreaks that comprised the larger outbreak in Brooklyn, were identified, including 32 that were still in the window of active transmission. All but 45 of the 329 confirmed cases involved minors: 56 cases involved children under 1 year of age; 162 cases involved children between 1 and 4 years of age; and 66 cases involved children between 5 and 18 years of age. While only a single confirmed case was reported in September 2018, and 13 in October 2018, there were 114 confirmed cases in March 2019. Sixty-two new cases were reported in the first 15 days of April 2019. Of the 44 new cases reported in the week ending April 15, 2019, 39 of them arose in Williamsburg; only 3 in Borough Park.

On April 9, 2019, in response to the measles

outbreak, the Commissioner of the City Health Department issued orders declaring the existence of a public health emergency. The Commissioner mandated that any unvaccinated person older than six months of age who lived or worked within four specified zip codes in the Williamsburg neighborhood must be vaccinated unless such person could demonstrate to the satisfaction of the City Health Department either that the person already had immunity to the disease or should be treated as medically exempt. The Commissioner determined that the presence of any person in Williamsburg lacking the MMR vaccine (absent immunity or a medical exemption) created an unnecessary and avoidable risk of continuing the outbreak and was therefore a nuisance, as defined in the Administrative Code of the City of New York § 17–142. The orders warned that failure to comply "is a violation of § 3.05 of the New York City Health Code, and a misdemeanor for which you may be subject to civil and/or criminal fines, forfeitures and penalties, including imprisonment." The orders were to be in effect until the next meeting of the Board of Health of the City Health Department (hereinafter the Board or the Board of Health), scheduled for April 17, 2019, at which time it might be continued or rescinded by the Board.

The petitioners, on behalf of themselves and their children, commenced this hybrid action for a declaratory judgment and injunctive relief, and proceeding pursuant to CPLR article 78, seeking to vacate the Commissioner's orders, permanently enjoin their implementation, and declare them arbitrary, capricious, contrary to law, and beyond the Commissioner's authority. The petition alleged that there was insufficient evidence of a dangerous measles

outbreak to justify the orders, the Commissioner failed to use the least restrictive means such as isolation and quarantine of infected individuals and ignored the risk of harm from the MMR vaccine, and there was no authority to declare a person a nuisance. Further, the petitioners alleged that the orders illegally overrode the children's religious exemption regarding school attendance under Public Health Law § 2164(9), and violated the petitioners' federal and state constitutional rights to free exercise of their religion, bodily autonomy and informed consent,...