Soos v. Cuomo

• Decision Date: 30 October 2020
• Docket Number: 1:20-cv-651 (GLS/DJS)
• Citation: 498 F.Supp.3d 318
• Parties: Rev. Steven SOOS et al., Plaintiffs, v. Andrew M. CUOMO et al., Defendants.
• Court: U.S. District Court — Northern District of New York

498 F.Supp.3d 318

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 October 30, 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, Keith M. Corlett, Howard A. Zucker, Betty A. Rosa & Empire State Development Corporation, HON. LETITIA JAMES, New York State Attorney General, OF COUNSEL: ADRIENNE J. KERWIN & HELENA O. PEDERSON, Assistant Attorneys General, The Capitol, Albany, NY 12224.

FOR THE DEFENDANTS: Bill De Blasio, Dave A. Chokshi, Terence A. Monahan & Richard Carranza, 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.

MEMORANDUM-DECISION AND ORDER

Gary L. Sharpe, Senior District Judge

I. Introduction

Pending is plaintiffs Reverend Steven Soos, Reverend Nicholas Stamos, Daniel Schonbrun, Elchanan Perr, Mayer Mayerfeld, Jeanette Ligresti, as parent and guardian of infant plaintiffs P.L. and G.L., and Morton Avigdor's motion for a temporary restraining order (TRO), or, in the alternative, preliminary injunction, brought by order to show cause. (Dkt. No. 69.)

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, Keith M. Corlett, Superintendent of the New York State Police, Howard A. Zucker, M.D., New York State Commissioner of Health, Betty A. Rosa, Interim Commissioner of the New York State Education Department, Empire State Development Corporation (collectively, hereinafter "State Defendants"), Bill de Blasio, Mayor of the City of New York, Dave A. Chokshi, New York City Commissioner of Health, Terence A. Monahan, Chief of the New York City Police Department, and Richard Carranza, Chancellor of the New York City Department of Education from enforcing certain limitations as to plaintiffs’ religious gatherings and religious education of their children, or, alternatively, from enforcing such limitations in a way that is greater than what defendants have imposed on similarly situated essential and/or exempted non-essential businesses and gatherings under Governor Cuomo's Executive Order 202.68. (See generally id. )

For the reasons explained below, plaintiffs’ motion is denied.

II. Background

A. Facts ¹

While New York has had much success with the global pandemic brought about by COVID-19, and daily deaths and hospitalizations attributed to COVID-19 have remained essentially stagnant since June, it is still with us, and, thus, remains a difficult and overarching issue facing defendants. Since early September 2020, the New York State Department of Health (DOH) has observed twenty "hot spots" of positive tests for COVID-19, located in Brooklyn, Queens, Rockland County, Broome County, and Orange County. (Declaration of Zucker (hereinafter "Zucker Decl.") ¶ 95, Dkt. No. 91, Attach. 2.) Indeed, while the rate of positive tests in the rest of the state has been hovering around just 1%, the positivity rates in these hot spots are at least 5.5%. See Luis Ferré-Sadurní & Jesse McKinley, Cuomo Imposes Tight Virus Rules on Areas Hit by Spikes Across State , N.Y. Times (October 6, 2020), https://www.nytimes.com/2020/10/06/nyregion/cuomo-shutdown-coronavirus.html. And, in certain areas within those hot spots, the positivity rates have reached 8%. (Zucker Decl. ¶ 96.)

In response to these apparent increases in COVID-19 cases, Governor Cuomo issued Executive Order 202.68, which establishes the so-called "Cluster Action Initiative." (Dkt. No. 57 at 64-72.) The Initiative directs the DOH to "determine areas in the State that require enhanced public health restrictions based upon cluster-based cases of COVID-19" and to divide those areas into "red zones", "orange zones", and "yellow zones", in accordance with the severity of the outbreak. (Id. at 64.)

In red zones, the zones with the most severe outbreak:

Non-essential gatherings of any size shall be postponed or cancelled; all non-essential 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 maximum occupancy 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.

(Id. at 65.)

In "moderate severity warning" zones, the orange zones:

Non-essential gatherings shall be limited to 10 people; certain non-essential businesses, for which there is a higher risk associated with 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 of laser 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 cease serving 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 shall not 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.

(Id. )

Finally, in "precautionary" areas, the yellow zones:

Non-essential gatherings shall be limited 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.

(Id. )

The purpose of the Initiative, according to Governor Cuomo, is to apply a "science-based approach to attack ... clusters [of positive tests] and stop any further spread of the virus ... [by] directly target[ing] ... areas with the highest concentration of COVID[-19] cases." (Id. at 66.) State Defendants assert that the Initiative "effectively mitigates the risk of infection and reduces transmission by breaking up identified clusters, thereby reducing density in places where people gather, including houses of worship." (Dkt. No. 91, Attach. 4 at 8.)

Governor Cuomo made clear that he had houses of worship in mind when creating the Initiative. See Roman Catholic Diocese of Brooklyn, New York v. Cuomo , No. 20-cv-4844, 493 F.Supp.3d 168, 170 (E.D.N.Y. Oct. 9, 2020) ("[Governor Cuomo] made remarkably clear that [the Initiative] was intended to target a different set of religious institutions." (citing "Governor Cuomo Is a Guest on CNN Newsroom with Poppy Harlow and Jimmy Sciutto," October 9, 2020, https://www.governor.ny.gov/news/audio-rush-transcript-governor-cuomo-guest-cnn-newsroom-poppy-harlow-and-jim-sciutto)). At the press conference to announce the Initiative, Governor Cuomo said that "the new rules are most impactful on houses of worship" and that the Initiative "is about mass gatherings," and "[o]ne of the prime places of mass gatherings are houses of worship." (Am. Compl. ¶ 86 (emphasis omitted).) And, during an earlier press conference, Governor Cuomo stated: "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." (Id. ¶ 88.)

Plaintiffs assert that there is no evidence 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 [the] ‘Red Zone’ had occurred because of religious gatherings as opposed to other gatherings." (Id. ¶ 89.) In plaintiffs’ view, the zones were "gerrymander[ed]" specifically to target the Orthodox Jewish community. (Id. ¶ 160.)

Soos and Stamos are Catholic priests in the North Country region of New York, (id. ¶¶ 13-14), and, thus, not currently subject to the Initiative. However, plaintiffs contend that, because the zones are ever-changing, they could find themselves residing in one of them in the near future. (Id. ¶¶ 104-05.) G.L., P.L., Schonbrun, Perr, Mayerfeld, and Avigdor all reside and worship in the red zone. (Id. ¶¶ 5, 75.)

G.L. and P.L. are Catholics who attend Catholic school and mass in Brooklyn, where they reside with their parents. (Id. ¶ 15). Plaintiffs allege that, because it is in the red zone, their Catholic school is closed despite following State protocols and having zero positive tests. (Id. ¶¶ 118-20.)

Schonbrun, Perr, Mayerfeld, and Avigdor are Orthodox Jewish congregants who attend synagogues in Brooklyn, New York, where they reside. (Id. ¶¶ 16-19.) Avigdor is the President of Congregation Ahavas Dovid, an Orthodox Jewish synagogue in Brooklyn. (Id. ¶ 19.) The synagogue prayers required by their religion must have a minimum quorum of ten adult males, called the "minyan. " (Id. ¶ 130.) Because of this requirement, in conjunction with the fact that they reside and worship in the red zone, Schonbrun, Perr, Mayerfeld, and/or Avigdor can only attend services if they are part of the minyan , and their female...