Supreme Court, Kings County, February 10, 2022

Patricia Finn Attorney, P.C., Nanuet (Patricia Finn of counsel), and John L. O'Kelly, East Williston, for petitioners.

Georgia M. Pestana, Corporation Counsel, New York City (Edward Louis Murray of counsel), for respondents.

On November 9, 2021, petitioners, owners of a bakery in New York and Kings County,^[FN1] commenced this hybrid article 78 proceeding by petition and an order to show cause seeking to enjoin and restrain then sitting Mayor Bill de Blasio and the City of New York (respondents) from enforcing New York City's Key to NYC program. On November 12, 2021, respondents filed opposition to the order to show cause. The signed order to show cause denied petitioners' interim request for a temporary restraining order and expedited discovery, and the matter was set down for oral argument on their request for a preliminary injunction and other relief. On December 3, 2021, respondents filed a cross motion to dismiss the article 78 petition and complaint pursuant to CPLR 3211 (a) (7) and opposition to petitioners' order to show cause. Petitioners filed opposition to the cross motion on January 17, 2022.^[FN2]

On January 13, 2022, petitioners filed an amended article 78 petition in which they substantially modified their cause of action. In their initial article 78 petition and complaint, petitioners challenged Key to NYC on several constitutional and state{**74 Misc 3d at 762} law grounds, claiming, inter alia, that the law violated the separation of powers principles embodied in the United States Constitution as well as petitioners' constitutional rights under the First and Fourteenth Amendments. In their amended article 78 petition, petitioners discontinued their substantive federal constitutional violation claims. Petitioners instead sought relief under their claim that respondents enacted Key to NYC in violation of the separation of powers doctrine and outside the scope of authority under the Executive Law. They also claim that Key to NYC was enacted in violation of the New York Constitution, New York State law, the New York City Administrative Code and the New York City Charter. Petitioners also substituted newly elected Mayor Eric Adams as a party and challenged the recent modification of certain provisions in Key to NYC, including the requirements that patrons show proof of "full regimen" of a COVID-19 vaccine and that "reasonable accommodations" be made for certain exempt individuals. On January 19, 2022, respondents filed a reply memorandum of law in further support of their cross motion. Respondents acknowledge the changes to petitioners' theory of relief in their amended article 78 petition and reiterate and maintain the same arguments regarding petitioners' claims of separation of powers violations and lack of authority under New York State and City law.

In their order to show cause, petitioners seek an order from this court enjoining respondents from enforcing Key to NYC and extending it through future emergency executive orders (EEOs). In their amended petition, petitioners also seek, inter alia, an injunction as well as a declaratory judgment stating the following: finding Key to NYC is void ab initio; finding that respondents issued Key to NYC in violation of the separation of powers provisions under the New York City Charter and the New York State Constitution; finding that former respondent Mayor Bill de Blasio and current respondent Mayor Eric Adams unlawfully exceeded the authority vested in them by the laws of the State of New York, the City of New York, the Executive Law, the New York City Charter and Administrative Code and issued the EEOs in violation of the legislature's authority.

Emergency Executive Order (de Blasio) No. 225 was initially passed by then Mayor de Blasio on August 16, 2021, pursuant to the state of emergency first declared by then Governor{**74 Misc 3d at 763} Cuomo in March 2020.^[FN3] The EEO requires that patrons of certain recreational business establishments such as restaurants with indoor dining, fitness centers and theaters provide proof of COVID-19 vaccination as a condition of entry. This law, Key to NYC, has been extended through subsequent EEOs, with the latest EEOs extended by Mayor Eric Adams.^[FN4]

The portion of Key to NYC that is relevant herein provides the following: "Section 1. I hereby order that a covered entity shall not permit a patron, full- or part-time employee, intern, volunteer, or contractor to enter a covered premises without [*2]displaying proof of vaccination and identification bearing the same identifying information as the proof of vaccination." (Emergency Executive Order [de Blasio] No. 225.)

"covered premises" includes establishments such as petitioners' that offer "indoor food services" such as indoor dining. However, the requirements do not apply to those establishments that offer "food or drink exclusively for off-premises or outdoor consumption . . . or . . . providing only charitable food services, such as soup kitchens" (Emergency Executive Order [de Blasio] No. 317 § 2 [g] [3] [ii]). There is also a general exception for "[i]ndividuals entering for a quick and limited purpose (for example, using the restroom, placing or picking up an order or service, changing clothes in a locker room, or performing necessary repairs)" (id. § 2 [c] [1]; Emergency Executive Order [Adams] No. 1).

Article 78 is a state law remedy. However, the bulk of relevant case law dealing specifically with local executives' authority to declare an emergency under Executive Law § 24 based on an epidemic as enumerated under Executive Law § 20 comes from the federal courts. The plaintiffs in those federal cases challenged emergency orders under various substantive constitutional violation claims as well as violations of the separation of powers doctrine and in excess of the authority granted under Executive Law § 24 (Dixon v de Blasio, 2021 WL 4750187, *3, *13, 2021 US Dist LEXIS 196287, *7, *31-34 [ED NY, Oct. 10, 2021, 21-cv-5090 (BMC)] ["The elected chief executive of New York City has the authority to act decisively{**74 Misc 3d at 764} to ensure the City's safety during a public health crisis"]; Clementine Co. LLC v de Blasio, 2021 WL 5756398, 2021 US Dist LEXIS 232058 [SD NY, Dec. 3, 2021, No. 21-cv-7779]; W.D. v Rockland County, 521 F Supp 3d 358 [SD NY 2021]). In an article 78 proceeding, "[t]he decision to grant a preliminary injunction is a matter ordinarily committed to the sound discretion of the court hearing the motion" (159 Smith, LLC v Boreum Hill Prop. Holdings, LLC, 191 AD3d 741, 742 [2d Dept 2021] [internal quotation marks omitted]). Here, the court applies the analysis in recent federal decisions where plaintiffs challenged similar emergency orders enacted in response to the COVID-19 pandemic. These orders mirror Key to NYC in either their substance, their enactment under executive authority or both and were upheld under constitutional challenges (Commey v Adams, 2022 WL 62155, 2022 US Dist LEXIS 2897 [SD NY, Jan. 6, 2022, 22-CV-0018 (RA)]; Hopkins Hawley LLC v Cuomo, 518 F Supp 3d 705 [SD NY 2021]; Heidel v Hochul, 2021 WL 4942823, 2021 US Dist LEXIS 203572 [SD NY, Oct. 21, 2021, 20-cv-10462 (PKC)]; Our Wicked Lady LLC v Cuomo, 2021 WL 915033, 2021 US Dist LEXIS 44505 [SD NY, Mar. 9, 2021, 21cv0165 (DLC)]; Columbus Ale House, Inc. v Cuomo, 495 F Supp 3d 88 [ED NY 2020]).

New York's Constitution follows the Federal Constitution's separation of powers structure among the three branches of government, legislative, federal and judiciary (NY Const, arts III, IV, VI). Courts have recognized that the inevitable overlapping among the three branches are not per se violations of government authority: "some overlap between the three separate branches does not violate the constitutional principle of separation of powers" (Clark v Cuomo, 66 NY2d 185, 189 [1985] [citations omitted]). The Court of Appeals has even recognized that a well-functioning government cannot abide by rigid separation: " 'common sense and the necessities of government do not require or permit a captious, doctrinaire and inelastic classification of governmental functions' " (Clark v Cuomo, 66 NY2d at 189 [citation omitted]).

This is especially true in cases of an executive's authority to govern: "[w]here it is impracticable for the legislative body to fix specific standards for enforcement without destroying the flexibility necessary to meet the variety of circumstances likely to be encountered in carrying out the legislative will, broad flexibility in determining the proper methods of enforcement will be sustained" (Matter of Broidrick v Lindsay, 39 NY2d {**74 Misc 3d at 765}641, 646 [1976]; Rapp v Carey, 44 NY2d 157, 163 [1978] ["It is true that in this State the executive has the power to enforce legislation and is accorded great flexibility in determining the methods of enforcement"]). [*3]Nonetheless, "[i]t is only when the Executive acts inconsistently with the Legislature, or usurps its prerogatives, that the doctrine of separation is violated" (Clark v Cuomo, 66 NY2d at 189).

Here, respondents' authority to enact Key to NYC is explicitly granted under Executive Law § 24:

"[s]ection 24(1) in Article 2-B of Chapter 18 of New York's Consolidated law provides that the chief executive of a county, city, town or village, in this case New York City's Mayor, can enact a state of emergency after finding an immediate or imminent public danger. N.Y. Exec. Law § 24(1) (Consol. 2021). During this state of emergency, the chief executive may promulgate local emergency orders that regulate and close 'places of amusement and assembly,' id. at § 24(1)(c), prohibit and control the presence of persons on public streets, id. at § 24(1)(e), and suspend local law, id. § 24(1)(g)" (Dixon v de Blasio, 2021 WL 4750187, *13, 2021 US Dist LEXIS 196287, *31-32 [ED NY, Oct. 10, 2021, 21-cv-5090 (BMC)]).

The New York City Charter designates the Mayor as "the chief executive officer of the city" (NY City Charter § 3). Executive Law § 24 explicitly authorizes respondent Mayor, as "chief executive" of New York City, to declare a local state of emergency "in the event of a disaster, rioting, catastrophe, or similar public emergency . . . or in the event of reasonable apprehension of immediate danger thereof, and upon a finding by the chief executive thereof that the public safety is imperiled thereby" (Executive Law § 24 [1]).

Under Executive Law § 20 a "disaster" is defined as the "occurrence or imminent, impending or urgent threat of wide spread or severe damage, injury, or loss of life or property resulting from any natural or man-made causes, including, but not limited to . . . epidemic, disease outbreak" (Executive Law § 20 [2] [a]).

Executive Law § 24 lists actions that the Mayor has the authority to take upon declaring a state of emergency in order to "protect life and property or to bring the emergency situation under control" (Executive Law § 24 [1]). This includes "the {**74 Misc 3d at 766}regulation and closing of places of amusement and assembly" (Executive Law § 24 [1] [c]).

The authority to suspend laws under the declaration of an emergency is not absolute. The statute provides for time restrictions: "[s]uch proclamation shall remain in effect for a period not to exceed thirty days or until rescinded by the chief executive, whichever occurs first. The chief executive may issue additional proclamations to extend the state of emergency for additional periods not to exceed thirty days" (Executive Law § 24 [1]). The statute further provides "[t]he legislature may terminate by concurrent resolution, such emergency orders at any time" (Executive Law § 24 [8]). However, Executive Law § 24 explicitly grants respondent Mayor the authority to declare an emergency in the event of an epidemic as provided in Executive Law § 20.

Petitioners argue that a COVID-19 emergency no longer exists within the meaning of Executive Law § 20 and therefore respondent Mayor declared a state of emergency in violation of Executive Law § 24. This is based upon petitioners' assertion that "[a]ny definition of 'emergency' includes an occurrence that is urgent, sudden, or unexpected. The magnitude of potential harm cannot, in itself, define and emergency."^[FN5] However, petitioners' definition and application of the word "emergency" conflicts with the New York Legislature's intent in drafting Executive Law §§ 20 and 24. In W.D. v Rockland County,^[FN6] the New York Southern District [*4]Court found that the Rockland County Supreme Court erred in striking down an EEO issued under Executive Law § 24 because it found that no emergency existed under Executive Law § 20 (W.D. v Rockland County, 521 F Supp 3d 358 [2021]). The Southern District found the court came to this conclusion because it applied the definition of "epidemic" as an adjective, "affecting or tending to affect a disproportionately large number of individuals within a population, community, or region at the same time," instead of a noun, ''an outbreak of disease that spreads quickly and affects many individuals at the same time" (W.D. v Rockland County, 521 F Supp 3d at 392-393). Under its application of{**74 Misc 3d at 767} epidemic as an adjective, the court found that based on the low number of confirmed measles cases, 166 out of a population of 330,000, the low transmission rate of .05% and the fact that there were no confirmed cases at the plaintiffs' school, an epidemic did not exist because it did not affect a " 'disproportionately large number of individuals within a population' " (W.D. v Rockland County, 521 F Supp 3d at 392-393).

The Southern District Court held that based on the language and intent of Executive Law § 24, courts must apply the definition of "epidemic" as a noun:

"The Court respectfully disagrees with this conclusion. The Court finds that an 'epidemic' as defined by N.Y. Executive Law § 24 did exist at the time of the Emergency Declaration, such that [the county executive] had discretion to 'prohibit . . . the presence of persons from public places,' see N.Y. EXEC. LAW § 24(1)(e), and therefore exclude unvaccinated children from schools . . . The Supreme Court, County of Rockland misapplied the definition of the word 'epidemic,' resulting in an outcome that the drafters of N.Y. Executive Law § 24 did not intend . . .

"Given the explicit grammatical distinction made by the legislature, and the undisputed fact that the measles cases in Rockland County constituted a substantial increase above typical levels, the Court concludes that an 'epidemic,' and therefore, a 'disaster' existed at the time of the Emergency Declaration. See id.; see also N.Y. EXEC. LAW §§ 20, 24" (W.D. v Rockland County, 521 F Supp 3d at 393-394 [emphasis added]).

Of great significance was the court's finding that the inherent danger of an epidemic is the potential for rapid spread of an infectious disease rather than the actual number of those already infected:

"the Court finds that the continuing resurgence of measles cases in the County as of the Emergency Declaration constituted an 'epidemic,' and therefore qualified as a 'disaster' under N.Y. Executive Law §§ 20 and 24. As a noun, an 'epidemic' is 'an outbreak of disease that spreads quickly and affects many individuals at the same time.' MERRIAM-WEBSTER ONLINE DICTIONARY, epidemic, {**74 Misc 3d at 768}https://www.merriam-webster.com/dictionary/epidemic. Because 152 cases had been reported within the County as of March 25, 2019, the day before the Emergency Declaration, with twenty-five new cases in the prior three weeks and six in the prior week, the disease 'affect[ed] many individuals at the same time,' especially compared to seven or fewer cases counted across the State over a whole year in the years of 2015 through 2017" (W.D. v Rockland County, 521 F Supp 3d at 394 [citations omitted and emphasis added]).

The Southern District Court recognized the county executive's need to act quickly and prevent the rise in cases. Thus, Executive Law § 24 does not require an official to declare an emergency only after the rise in cases. Rather it is incumbent that the executive act quickly to prevent the disaster contemplated under the statute:

"This situation triggered [the county executive's] discretion under N.Y. Executive Law § 24 to 'prohibit' individuals within the County, including unvaccinated children, from congregating in public places such as schools. See N.Y. EXEC. LAW § 24(1)(e). Consequently, Plaintiffs lacked any legitimate claim of entitlement to send their children to school without being vaccinated" (W.D. v Rockland County, 521 F Supp 3d at 395 [citation omitted and emphasis added]).

Further, to support their argument that COVID-19 is no longer an emergency, petitioners cite various medical papers and articles, and rely heavily on statistics,^[FN7] the recent emergence of the Omicron variant and their general view that vaccines are "virtually useless" in preventing transmission.^[FN8] These arguments are unavailing.

Reliance on opposing medical opinions to support a legal challenge to a government issued health measure is neither novel nor unique to this case. This issue was addressed over a century ago in the seminal Supreme Court case Jacobson v Massachusetts:

"The possibility . . . that science may yet show it to be wrong . . . is not conclusive . . . for the legislature has the right to pass laws which, according{**74 Misc 3d at 769} to the common belief of the people, are adapted to prevent the spread of contagious diseases. . . . While we do not decide and cannot decide that vaccination is a preventive . . . , we take judicial notice of the fact that this is the common belief of the people of the State, and with this fact as a foundation we hold that the statute in question is a health law, enacted in a reasonable and proper exercise of the police power" (Jacobson v Massachusetts, 197 US 11, 35 [1905] [citation omitted and emphasis added]).

This rationale was recently echoed by the Supreme Court in a constitutional challenge to a COVID-19 public health mandate:

"When . . . officials 'undertake[ ] to act in areas fraught with medical and scientific uncertainties,' their latitude 'must be especially broad.' Marshall v. United States, 414 U. S. 417, 427 (1974). Where those broad limits are not exceeded, they should not be subject to second-guessing by an 'unelected federal judiciary,' which lacks the background, competence, and expertise to assess public health and is not accountable to the people. See Garcia v. San Antonio Metropolitan Transit Authority, 469 U. S. 528, 545 (1985)" (South Bay United Pentecostal Church v Newsom, 590 US —, —, 140 S Ct 1613, 1613-1614 [2020]).

The Supreme Court specifically emphasized the importance of this rationale in the context of COVID-19: "That is especially true where, as here, a party seeks emergency relief in an interlocutory posture, while local officials are actively shaping their response to changing facts on the ground. The notion that it is 'indisputably clear' that the Government's limitations are unconstitutional seems quite improbable" (South Bay United Pentecostal Church v Newsom, 590 US —, —, 140 S Ct 1613, 1613-1614 [2020] [emphasis added]).

This analysis was most recently applied by the New York Eastern District Court in a similar legal challenge to Key to NYC:

"There is sufficient factual and legal support for the EEOs. Although the most severe [*6]period of the COVID-19 pandemic appears to have subsided (hopefully) in New York City, a reasonable official could determine that the risk of a new surge in cases{**74 Misc 3d at 770} and hospitalizations has not. This is especially true given the large number of New York residents who remain unvaccinated. In such instances, '[t]he precise question of when restrictions on particular social activities should be lifted during the pandemic is a dynamic and fact-intensive matter subject to reasonable disagreement' " (Dixon v de Blasio, 2021 WL 4750187, *12, 2021 US Dist LEXIS 196287, *31 [emphasis added], quoting South Bay United Pentecostal Church v Newsom, 590 US at —, 140 S Ct at 1613).

The court does not deny that there are competing medical opinions regarding COVID-19 public health restrictions and the efficacy of vaccines. However, whether petitioners' cited medical authorities are correct and vaccines do prove to be "virtually useless" is not within the court's purview to determine given the facts herein (Columbus Ale House, Inc. v Cuomo, 495 F Supp 3d 88, 95 [2020] ["But where good faith arguments can be made on both sides of the many issues raised by the pandemic, it is up to the Governor, not the courts, to balance the competing public health and business interests"]). Pursuant to the record, it is clear that respondents have properly exercised their authority by continuously reconsidering their decision to extend the state of emergency based on the expertise of public health authorities.

Here, the record shows that respondents frame their response to COVID-19 on the up-to-date medically sound advice of public health experts. In the affirmation of Senior Public Health Advisor Dr. Jay Varma, submitted in support of respondents' cross motion, Dr. Varma does not proclaim to have an absolute basis of scientific knowledge: "[o]ur understanding of COVID-19 . . . is evolving as we gain more experience with the disease" (Varma affirmation ¶ 7 [emphasis added]). This does not however diminish Dr. Varma's objective rational basis in support of the restrictions set forth in Key to NYC and in increasing vaccine rates: "transmission to multiple people . . . is more likely to occur in settings that are indoors and involve large numbers of people in close proximity" (Varma affirmation ¶ 11);

"[v]iruses only mutate when they are replicating in a human . . . Therefore, the only way to prevent the emergence and spread of other more contagious strains of COVID-19 is to reduce the number of humans infected. By far, the safest and most effective{**74 Misc 3d at 771} way to do that is to increase vaccination rates" (Varma affirmation ¶ 14 [emphasis added]).

It is an undisputed characteristic of COVID-19 that infection rates can suddenly rise substantially. Petitioners themselves acknowledge this; they modified their entire basis for relief due to the Omicron variant which emerged in December, approximately one month after they commenced this action. However, contrary to petitioners' argument, the recent emergence of the milder but highly contagious Omicron variant does not support a finding that the COVID-19 emergency is over. Rather, it is axiomatic of the fact that the COVID-19 emergency is ongoing. It also demonstrates the impracticality of expecting the New York State Legislature to quickly enact a single law that will address the continuously changing circumstances and their effect on this densely populated city (see Matter of Broidrick v Lindsay, 39 NY2d 641 [1976]; Rapp v Carey, 44 NY2d 157 [1978]). It is also perhaps why the legislature has not yet exercised its authority to terminate Key to NYC under Executive Law § 24 (8).

Further respondents readily take changing public health circumstances into account in their response to COVID-19. This is evidenced by the fact that easing of restrictions on activities such as indoor dining and wearing masks in public have mirrored the decreases in COVID-19 [*7]severity.^[FN9] Here, it is evident that respondent Mayor considered the latest medical statistics and facts in his decision to extend Key to NYC on January 1, 2022, under Emergency Executive Order (Adams) No. 1:

"WHEREAS, on October 29, 2021, U.S. Food and Drug Administration authorized the emergency use of the Pfizer-BioNTech COVID-19 Vaccine for the prevention of COVID-19 to include children 5 through 11 years of age; and

"WHEREAS, on December 26, 2021, New York State Governor Kathy Hochul issued Executive Order No. 11.1 to address new emerging threats across the State posed by COVID-19, finding that New York is experiencing COVID-19 transmission at rates the State has not seen since April 2021 and that the rate of new COVID-19 hospital admissions has been increasing over the past month to over 300 new admissions a day; and{**74 Misc 3d at 772}

"WHEREAS, the recent appearance in the City of the highly transmissible Omicron variant of COVID-19 suggests an increased risk of reinfection; and

"WHEREAS, 70% of the City's residents are fully vaccinated and mandating vaccinations at the types of establishments that residents frequent will incentivize vaccinations, increasing the City's vaccination rates and saving lives."

Petitioners next argue that respondents usurped the legislature's authority to mandate vaccines under New York Public Health Law. However, this argument fails as Key to NYC is not a compulsory vaccine mandate. A plain reading of Key to NYC demonstrates that it is limited in its application: it prohibits a certain category of individuals, "a patron, full- or part-time employee, intern, volunteer, or contractor," from entering certain recreational premises such as indoor dining areas of restaurants, museums, theaters, gyms, etc., "without displaying proof of vaccination and identification bearing the same identifying information as the proof of vaccination." There are also exceptions to Key to NYC's limited and narrow application to indoor dining: "[t]he requirements of this Order shall not apply to any establishment offering food or drink exclusively for off-premises or outdoor consumption, or to a food service establishment providing only charitable food services, such as soup kitchens" (Emergency Executive Order [de Blasio] No. 317 § 2 [g] [3] [ii]). There is also a general exception for "[i]ndividuals entering for a quick and limited purpose (for example, using the restroom, placing or picking up an order or service, changing clothes in a locker room, or performing necessary repairs)" (id. § 2 [c] [1]; Emergency Executive Order [Adams] No. 1).

Under the Key to NYC, regardless of vaccine status, a New Yorker may eat or drink outdoors and enter supermarkets, retail establishments, government offices, hospitals, subways, buses, taxis, delis, drugstores, etc. Nonetheless, petitioners argue that Key to NYC is a forced government vaccination mandate subjecting those who refuse to comply to an "unlawful quarantine" in violation of Public Health Law § 2120.

This argument has already been struck down in federal court: "[t]he EEOs are constitutional because they do not mandate vaccination. They merely place reasonable restrictions on those who choose not to get vaccinated . . . these {**74 Misc 3d at 773}regulations apply to all unvaccinated individuals and are rationally related to the goal of reducing COVID-19's infection rate" (Dixon v de Blasio, 2021 WL 4750187, *8, 2021 US Dist LEXIS 196287, *18 [emphasis added]).

Requiring proof of vaccination upon entry to a business such as petitioners' is entirely in line with respondents' authority under Executive Law § 24 "to regulat[e] . . . places of amusement and assembly" in order to "protect life" and "bring the emergency situation under control" ([*8]Executive Law §§ 24 [1] [c]; 20). Further, the right to enter a particular place is not akin to a government enforced restriction on movement (Williams v Town of Greenburgh, 535 F3d 71, 75 [2d Cir 2008] ["it is clear that the (constitutional right to freedom of movement and travel) protects movement between places and has no bearing on access to a particular place" (emphasis omitted)]).

In the alternative, petitioners argue that even if Executive Law § 24 authorized respondents to suspend certain laws and ordinances in the event of an emergency, this authority is circumscribed under section 3-104 of the New York City Administrative Code:

"Whenever the mayor determines that there has been an act of violence or a flagrant and substantial defiance of or resistance to a lawful exercise of public authority, and . . . there is reason to believe that there exists a clear and present danger of a riot or other general public disorder, widespread disobedience of the law, and substantial injury to persons or to property, all of which constitutes a threat to public peace or order and to the general welfare of the city or a part or parts thereof, the mayor may declare that a state of emergency exists within the city or any part of parts thereof" (Administrative Code of City of NY § 3-104 [emphasis added]).

Petitioners argue that the language regarding violence and riots should be read as an explicit limitation of respondent Mayor's authority to declare an emergency and should thereby limit the broad scope of Executive Law § 24. This argument fails as such an interpretation would essentially invalidate any declaration of an emergency for disasters which are non-violent in nature. This would render Executive Law § 20 and its inclusion of non-violent disasters, such as natural disasters or epidemics, obsolete. Further, Executive Law § 24 explicitly provides: "Notwithstanding any inconsistent provision of law, {**74 Misc 3d at 774}general or special, in the event of a disaster, rioting, catastrophe, or similar public emergency" (Executive Law § 24 [1] [emphasis added]).

Notwithstanding the above, the plain language in Administrative Code § 3-104 does not expressly limit the Mayor's authority to declare an emergency only in instances of public violence just as it is not expressly limited under Executive Law § 24: "in the event of a disaster, rioting, catastrophe, or similar public emergency" (Executive Law § 24 [1] [emphasis added]).

Even if a conflict existed, Executive Law § 24 would prevail over a city administrative code: "[a] local law will be preempted either where there is a direct conflict with a state statute (conflict preemption) or where the legislature has indicated its intent to occupy the particular field (field preemption)" (Garcia v New York City Dept. of Health & Mental Hygiene, 31 NY3d 601, 617 [2018]). " 'When the State has created a comprehensive and detailed regulatory scheme with regard to the subject matter that the local law attempts to regulate, the local interest must yield to that of the State in regulating that field' " (id. at 618 [citation omitted]).

Here, the relevant portion of the Administrative Code does not conflict with or limit respondents' authority under the Executive Law. The Court of Appeals has held that "a local law is inconsistent [with state law] 'where local laws prohibit what would be permissible under [s]tate law, or impose prerequisite additional restrictions on rights under [s]tate law, so as to inhibit the operation of the State's general laws' " (Eric M. Berman, P.C. v City of New York, 25 NY3d 684, 690-691 [2015] [citation omitted]). As explained above, the language in section 3-104 does not limit or contradict the language in Executive Law § 24.

Based on the foregoing, petitioners fail to establish their entitlement to a preliminary injunction. " 'The party seeking a preliminary injunction must demonstrate a probability of success on the merits, danger of irreparable injury in the absence of an injunction and a balance of equities in its favor' " (Matter of Boening v Nassau County Dept. of Assessment, 200 AD3d [*9]973, 974 [2d Dept 2021], quoting Nobu Next Door, LLC v Fine Arts Hous., Inc., 4 NY3d 839, 840 [2005]; see CPLR 6301). "The decision to grant a preliminary injunction is a matter ordinarily committed to the sound discretion of the court hearing the motion" (159 Smith, LLC v Boreum Hill Prop. Holdings, LLC, 191 AD3d 741, 742 [2021] [internal quotation marks omitted]).{**74 Misc 3d at 775}

For the reasons set forth above, petitioners failed to demonstrate a probability of success on the merits. In an article 78 challenge, this court's review is limited: "[t]he courts cannot interfere unless there is no rational basis for the exercise of discretion or the action complained of is 'arbitrary and capricious' " (Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, 230-231 [1974] [citations omitted]). "The arbitrary or capricious test chiefly 'relates to whether a particular action should have been taken or is justified . . . and whether the administrative action is without foundation in fact' " (Pell v Board of Educ., 34 NY2d at 231 [citation omitted]).

In an article 78 analysis, " '[i]t is well settled that a court may not substitute its judgment for that of the board or body it reviews unless the decision under review is arbitrary and unreasonable and constitutes an abuse of discretion' " (Pell v Board of Educ., 34 NY2d at 232 [emphasis omitted], quoting Matter of Diocese of Rochester v Planning Bd. of Town of Brighton, 1 NY2d 508, 520 [1956]). As explained above, this is especially true in the context of the ever-changing COVID-19 reality: "[T]he unelected federal judiciary, lacking the 'background, competence, and expertise to assess public health,' should not second-guess these actions, particularly where 'a party seeks emergency relief in an interlocutory posture, while local officials are actively shaping their response to changing facts on the ground' " (Dixon v de Blasio, 2021 WL 4750187, *12, 2021 US Dist LEXIS 196287, *31, quoting South Bay United Pentecostal Church v Newsom, 590 US at —, 140 S Ct at 1613).

Here, the purpose of Key to NYC is to prevent the spread of infection and incentivize vaccination as a means of controlling this ongoing public health emergency. In recent legal challenges to similar emergency measures requiring vaccination, courts have applied the United States Supreme Court's analysis in Jacobson v Massachusetts.^[FN10]

"Under Jacobson, the state may curtail constitutional rights in response to a society-threatening epidemic so long as the measures have at least some 'real or substantial relation' to the public {**74 Misc 3d at 776}health crisis and are not 'beyond all question, a plain, palpable invasion of rights secured by the fundamental law' " (Columbus Ale House, Inc. v Cuomo, 495 F Supp 3d at 92, quoting Jacobson v Massachusetts, 197 US at 31, 38).

Although Key to NYC is not a vaccine mandate, its limited restrictions are lawful under a Jacobson analysis because they have a "real or substantial relation" to respondent Mayor's interest in curtailing the ongoing COVID-19 epidemic (Jacobson v Massachusetts, 197 US at 31, 38).

Petitioners also failed to demonstrate a danger of irreparable injury by providing evidence to demonstrate how Key to NYC negatively impacted their businesses or income. It is likely petitioners cannot establish this as they themselves aver that they have not complied with Key to NYC.^[FN11] Despite this willful noncompliance, they have not alleged that respondents have taken any punitive measures or issued any fines. Even if petitioners could demonstrate irreparable harm by a loss of business, "enjoining the actions of state elected [*10]officials in matters that affect public safety also constitutes an irreparable harm" (Columbus Ale House, Inc. v Cuomo, 495 F Supp 3d at 94).

The balance of equities also weighs against granting petitioners' injunction. The court acknowledges the disruption to life and work for individuals in New York City who decline vaccination. However, this does not outweigh respondents' interest in combating and controlling COVID-19 and its impact on limited health care resources through an incentivized vaccine program. As of the date of this order, according to the New York Department of Health, 92.24% of those eligible in the Manhattan zip code of petitioners' bakery have had at least one dose of the COVID-19 vaccine.^[FN12] This percentage is lower than Manhattan's overall vaccine rate of 93.54%. In the zip code of the Brooklyn location that rate is 79.02% which is higher than Brooklyn's overall 77.24% average vaccine rate.^[FN13] Both zip codes fall between the overall New York City vaccination rate of 84.85%.^[FN14] These numbers demonstrate that the majority of the public is in favor of vaccination. In turn, it{**74 Misc 3d at 777} demonstrates support for respondents' efforts to curtail COVID-19 infection rates under Key to NYC.

For all the reasons set forth above, petitioners' request for a preliminary injunction of enforcement of Key to NYC in their order to show cause is denied. As to petitioners' amended article 78 petition and complaint, petitioners' request for a permanent injunction of enforcement of Key to NYC is denied. Petitioners' request that the court issue a declaratory judgment finding Key to NYC and all subsequent EEOs extending it are ultra vires, null, and void ab initio, because they were issued in violation of the separation of powers provisions within the New York Constitution and New York City Charter, and were issued in violation of New York State law, the New York City Administrative Code and the Executive Law, and all such other relief is denied in its entirety.

Based on the foregoing, the court finds that respondents did not violate the separation of powers doctrine and enacted Key to NYC and all subsequent extensions under a legitimate exercise of authority granted in Executive Law § 24. Accordingly, respondents' cross motion to dismiss the petition pursuant to CPLR 3211 (a) (7) for failure to state a cause of action is granted. All of petitioners' claims as set forth in its order to show cause, article 78 petition and complaint and amended article 78 petition and complaint are dismissed with prejudice.