Soos v. Cuomo

• Decision Date: 26 June 2020
• Docket Number: 1:20-cv-651 (GLS/DJS)
• Citation: 470 F.Supp.3d 268
• Parties: Rev. Steven SOOS et al., Plaintiffs, v. Andrew M. CUOMO et al., Defendants.
• Court: U.S. District Court — Northern District of New York

470 F.Supp.3d 268

Rev. Steven SOOS et al., Plaintiffs,

v.Andrew M. CUOMO et al., Defendants.

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

United States District Court, N.D. New York.

Signed June 26, 2020

FOR THE PLAINTIFFS: OF COUNSEL: CHRISTOPHER A. FERRARA, ESQ., 148-29 Cross Island Parkway, Whitestone, NY 11357, OF COUNSEL: MICHAEL McHALE, ESQ., 10506 Burt Circle, Ste 110, Omaha, NE 68114.

FOR THE DEFENDANTS: Andrew M. Cuomo & Letitia James, HON. LETITIA JAMES, OF COUNSEL: ADRIENNE J. KERWIN, Assistant Attorney General, New York State Attorney General, The Capitol, Albany, NY 12224, Bill de Blasio, HON. JAMES E. JOHNSON, Corporation Counsel of the City of New York, OF COUNSEL: MELANIE SADOK, ELLEN PARODI, HILARY M. MELTZER, Assistants Corporation Counsel, New York City Law Department, 100 Church Street, New York, NY 10007.

FOR THE PROSPECTIVE AMICUS CURIAE: Ahuva Kleinman, OF COUNSEL: RONALD D. COLEMAN, ESQ., Mandelbaum Salsburg PC, 3 Becker Farm Road, Roseland, NJ 07068.

MEMORANDUM-DECISION AND ORDER

Gary L. Sharpe, Senior District Judge

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 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 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 "non-essential 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 non-essential 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-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, 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] twenty-five (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 executive orders described above. (Dkt. No. 1, Attach. 1 at 94-125, 128-38.)

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 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.

(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...