N.Y.C. Mun. Labor Comm. v. City of N.Y.

• Citation: 73 Misc.3d 621,156 N.Y.S.3d 681
• Decision Date: 29 September 2021
• Docket Number: Index No. 158368/2021
• Parties: The NEW YORK CITY MUNICIPAL LABOR COMMITTEE, Harry Nespoli, Henry Garrido, Michael Mulgrew, Mark Cannizzaro, Gregory Floyd, Joseph Mannion, Joseph Colangelo, Martin Lydon, Chris Monahan, Louis Turco, William Lynn, Dalvanie Powell, James McCarthy, Ignazio Azzara, Joseph Azzopardi, Petitioner, v. The CITY OF NEW YORK, New York City Department of Health and Mental Hygiene, the Board of Education of the City School District of the City of New York, Respondent.
• Court: United States State Supreme Court (New York)

73 Misc.3d 621
156 N.Y.S.3d 681

The NEW YORK CITY MUNICIPAL LABOR COMMITTEE, Harry Nespoli, Henry Garrido, Michael Mulgrew, Mark Cannizzaro, Gregory Floyd, Joseph Mannion, Joseph Colangelo, Martin Lydon, Chris Monahan, Louis Turco, William Lynn, Dalvanie Powell, James McCarthy, Ignazio Azzara, Joseph Azzopardi, Petitioner,
v.
The CITY OF NEW YORK, New York City Department of Health and Mental Hygiene, the Board of Education of the City School District of the City of New York, Respondent.

Index No. 158368/2021

Supreme Court, New York County, New York.

Decided on September 29, 2021

For Petitioners: Alan Klinger, Esq and Dina Kolker, Esq, Stroock, Stroock & Lavan, LLP 180 Maiden Ln New York, NY 10038-4925 (212) 806-5400 and Harry Greenberg, Esq, Greenberg Law Office

For Respondents: Kimberly Brown, Esq and Eric Eichenholtz, Esq. Corporation Counsel 100 Church Street, Room 2-112 New York, New York 10007-2601 (212) 356-2457

Laurence L. Love, J.

73 Misc.3d 622

In an Interim Order dated September 22, 2021, (

156 N.Y.S.3d 684

New York City Mun. Labor Comm. v. City of New York , 2021 NY Slip Op. 32051[U], 2021 WL 4502854 [Sup. Ct., N.Y. County 2021] ),

73 Misc.3d 623

issued after oral argument held on September 22, 2021, this Court vacated its previously issued Temporary Restraining Order, issued September 14, 2021. Subsequent to the issuing of said Interim Order, this Court became aware that the Hon. Brian M. Cogan, USDJ, EDNY, issued a Decision and Order denying the identical relief in a related action filed by a number of individual teachers entitled Maniscalco et al. v. The New York City Dept. of Education, et al., 2021 WL 4344267 (September 23, 2021). Said Order was appealed to the United States Court of Appeals, Second Circuit which issued a Temporary Restraining Order on September 24, 2021, which was subsequently vacated on September 27, 2021. Now, upon the foregoing documents, Petitioners’ Petition and Respondents’ cross-motion seeking to dismiss the Petition are decided as follows:

Petitioners commenced the instant action by filing a Verified Petition on September 9, 2021. Said Petition seeks to vacate, pursuant to CPLR Article 78, the Order of the Commissioner of Health and Mental Hygiene to Require COVID-19 Vaccination for Department of Education Employees, Contractors, and Others, dated August 24, 2021 ("the Order"); and to enjoin Respondents the City of New York, The New York City Department of Health and Mental Hygiene ("DOHMH"), and the Board of Education of the City School District of the City of New York ("DOE") (collectively "Respondents") from implementing the Order.

As noted in this Court's interim Order, there is significant public interest in this matter, which will have a direct impact on the approximately one million children enrolled within the New York City school system, their parents and school based employees who have already persevered through the COVID crisis. DOE employees, city employees, contractors and others who work within the school system have already endured much over these last eighteen months while providing education both virtually and in person for our children. The Court also cannot ignore the fact that the vast majority of school-based employees are already in compliance with the commissioners Order. In fact, the latest reported numbers indicate that 87% of school-based employees and 91% of teachers are in compliance with the numbers growing daily.

All of us have been navigating uncharted waters over these last eighteen months as we have endured and sought to end the COVID nightmare. The social and economic impact along

73 Misc.3d 624

with the illness, death and fear it has wrought cannot be overstated, but at the same time health and government officials have been pursuing a continuously evolving effort to put COVID behind us and provide for the safety and health of all. While these efforts have shifted from closures, to restricted activities, to mask wearing, to testing, to vaccines, the goal remains the same — safety and health. Putting an end to this scourge that has brought serious illness to millions and caused the deaths of over 690,000 people within the United States.

The vast majority believe that vaccination is the most effective tool to combat COVID-19, demonstrated by the high vaccination rates among school-based staff and recent reporting of an adult New York City vaccination rate of 82% and growing.

At the same time, we recognize that personal freedom is a cornerstone of our American ideals. Here, a vocal minority passionately oppose vaccination. Their beliefs are based on a myriad of arguments, including medical or religious concerns; unknown long term vaccination risks versus COVID exposure; and simply personal freedom. The difficult task for the Court is

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balancing the needs of the vast majority against the beliefs of the few.

On August 23, 2021, DOHMH Commissioner Chokshi announced a vaccination mandate for all employees in the City school district, and on August 24, 2021, DOHMH imposed said Order, which requires all DOE staff, City employees, and contractors who "work in-person in a DOE school setting or DOE building"; and "[a]ll employees of any school serving students up to grade 12 and any UPK-3 or UPK-4 program that is located in a DOE building who work in-person, and all contractors hired by such schools or programs to work in-person" to — no later than September 27, 2021 — provide proof that they (a) have been fully vaccinated; (b) have received a single dose vaccine; or (c) have received the first dose of a two-dose vaccine, and must additionally provide proof that they have received the second dose within 45 days of the initial inoculation.

Concurrent with the filing of the instant action, Petitioners filed an Order to Show Cause seeking a Temporary Restraining Order and preliminary injunction, granting the relief demanded in the Petition. On September 14, 2021, this Court signed said Order to Show Cause, scheduling Oral Argument on September 22, 2021 at 12:00 p.m. and temporarily restraining Respondents from implementing the Health department Order pending

73 Misc.3d 625

the hearing on September 22, 2021. This Court was aware that a fuller review would be required prior to addressing the sought-after preliminary injunction but issued said Temporary Restraining Order solely because the Department of Health and Mental Hygiene Order's mandate did not reference the possibility of any medical or religious exemption.

The day following the issuing of the TRO, September 15, 2021, the Commissioner of Health and Mental Hygiene rescinded and restated the DOHMH's prior orders dated August 24, 2021, and September 16, 2021, to include the following clarifying language: "Nothing in this Order shall be construed to prohibit any reasonable accommodations otherwise required by law." This newly issued order (the "New Order") entirely obviates this Court's reason for issuing the Temporary Restraining Order.

A preliminary injunction is appropriate when the party seeking injunctive relief establishes: (1) likelihood of ultimate success on the merits; (2) irreparable injury if the injunction is not granted; and (3) a balancing of the equities in its favor. See Four Times Square Assocs., L.L.C. v. Cigna Investments, Inc. , 306 A.D.2d 4, 5, 764 N.Y.S.2d 1 (1st Dep't 2003) (citing Grant Co. v. Srogi , 52 N.Y.2d 496, 517, 438 N.Y.S.2d 761, 420 N.E.2d 953 (1981) ); CPLR §§ 6301, 6311. The elements to be satisfied must be demonstrated by clear and convincing evidence. Liotta v. Mattone , 71 A.D.3d 741, 900 N.Y.S.2d 62 (2nd Dep't 2010). However, the moving party is only required to make prima facie showing of its entitlement to a preliminary injunction, not prove the entirety of its case on the merits. The decision to grant a motion for a preliminary injunction "is committed to the sound discretion of the trial court." NY Cnty. Lawyers’ Ass'n v. State , 192 Misc. 2d 424, 428-29, 745 N.Y.S.2d 376 (Sup. Ct. N.Y. Cnty. 2002) ; see also Terrell v. Terrell , 279 A.D.2d 301, 304, 719 N.Y.S.2d 41 (1st Dep't 2001).

Having resolved the issue of appropriate medical and religious exemptions with the New Order, Petitioners’ sole argument is that the New DOHMH Order violates school-based employees substantive due process rights by threatening their personal autonomy, bodily integrity and right to reject medical treatment. Petitioners argue that since the Supreme Court of the

156 N.Y.S.3d 686

United States’ decision in Jacobson v. Commonwealth of Massachusetts , 197 U.S. 11, 25 S.Ct. 358, 49 L.Ed. 643 (1905) (holding that a fine imposed on plaintiff for declining to comply with a mandatory small pox vaccination did not violate his constitutional rights under a rational basis review), the law in the area of mandatory vaccinations has...