Supreme Court, Kings County, April 6, 2022

Law Offices of Sheldon Karasik (Sheldon Karasik of counsel) for petitioners.

Sylvia O. Hinds-Radix, Corporation Counsel, New York City (Kerri Devine and Jasmine Paul of counsel), for respondents.

Notice of petition filed on September 3, 2021, under motion sequence number one, by petitioners Yudelka Bravo, Omar{**75 Misc 3d at 377} Clarke, Peggy Mansanet, and Onika Williams (hereinafter collectively as petitioners) for a judgment, pursuant to CPLR article 78, permanently enjoining enforcement of Mayor Bill de Blasio's NY City Emergency Executive Order (EEO) (de Blasio) No. 225 (hereinafter EEO 225 or Key to NYC). The petition is opposed.

On September 2, 2021, the petitioners Bravo, Clarke, Mansanet, and Williams commenced the instant CPLR article 78 proceeding against Bill de Blasio in his official capacity as Mayor of the City of New York and the City of New York by electronically filing a verified petition, affidavits, annexed exhibits (hereinafter the commencement papers) and a request for judicial intervention with the Kings County Clerk's office (hereinafter KCCO). On September 3, 2021, the petitioners filed a notice of petition with the KCCO.

The verified petition alleges 54 allegations of fact in support of three causes of action. The first cause of action alleges that New York City is preempted from regulating communicable diseases. The second cause of action alleges that EEO 225 violates the New York State Constitution. The third cause of action alleges that EEO 225 violates the New York City Human Rights Law.

The petition alleges the following salient facts. On August 16, 2021, New York City Mayor Bill de Blasio issued EEO 225. EEO 225, effective on August 17, 2021, prohibited "a patron, full- or part-time employee, intern, volunteer, or contractor" from entry into any New York "[i]ndoor [e]ntertainment and [r]ecreational [s]etting," "[i]ndoor [f]ood [s]ervice[ ]" or "[i]ndoor [g]yms and [f]itness [s]etting[ ]" unless vaccinated with "at least one dose of a COVID-19 vaccine authorized for emergency use or licensed for use by the U.S. Food and Drug Administration or authorized for emergency use by the World Health Organization." The failure to comply with EEO 225 may result in financial penalties including $1,000 fines per violation which increase to $2,000 if a secondary violation occurs within 12 months of the first violation, with a further increase to $5,000 if a third violation occurs within 12 months of the secondary violation.{**75 Misc 3d at 378}

The petitioners allege that EEO 225 disproportionally affects small businesses and minority groups particularly Black^[FN*] people, who are alleged to have the lowest vaccination rate of all ethnicities in America. The petitioners allege that they have been directly, severely, and irreparably harmed by EEO 225. Clarke, a Black resident, an adjunct lecturer, and student advisor at John Jay College, alleges that the COVID-19 vaccine would put his health at risk. Mansanet, a Black resident of New York City, alleges that EEO 225's mandate interferes with her ability to work at the gym where she was employed. Williams, a Black business owner and pre-kindergarten teacher, with Crohn's disease, alleges that the COVID-19 vaccine would put her [*2]health at risk and negatively impact her business. The petitioners seek a permanent injunction from EEO 225.

On November 11, 2021, respondents Bill de Blasio, in his official capacity as Mayor of the City of New York, and the City of New York interposed a verified answer and supporting documents in response to the petition.

Petitioners' commencement papers consist of a notice of petition, a verified petition, an affidavit by each petitioner, and four annexed exhibits labeled A to D. Exhibit A is denominated as the declaration of Robin Armstrong, M.D. Exhibit B is denominated as the declaration of Kevin Jenkins. Exhibit C is denominated as the declaration of Paul Elias Alexander, Ph.D. Exhibit D is denominated as the declaration of Christina Parks, Ph.D.

The respondents' answering papers consist of a verified answer, four annexed exhibits labeled A to D, the affirmation of Dr. Jay Varma, and a memorandum of law in opposition. Exhibit A is a copy of EEO 225 signed by Mayor Bill de Blasio and dated August 16, 2021. Exhibit B is a copy of NY City Emergency Executive Order (de Blasio) No. 250 signed by Mayor Bill de Blasio and dated September 24, 2021. Exhibit C is a copy of NY City Emergency Executive Order (de Blasio) No. 98 signed by Mayor Bill de Blasio and dated March 12, 2020. Exhibit D includes a 30-page document entitled May Coronavirus Poll Findings, prepared by Global Strategy Group for the NYC Economic Development Corporation.{**75 Misc 3d at 379}

The petitioners' reply papers consist of a memorandum of law, an affirmation of counsel and three annexed exhibits labeled A to C. Exhibit A is a copy of a document denominated as the reply declaration of Paul Elias Alexander, Ph.D. Exhibit B is a copy of the decision and order of Justice Lizette Colon in the matter of Independent Rest. Owners Assn. Rescue (I.R.O.A.R.) v de Blasio dated September 10, 2021 (2021 NY Slip Op 32948[U] [Sup Ct, Richmond County 2021]). Exhibit C is a copy of the opinion of the Commonwealth Court of Pennsylvania in Corman v Acting Secretary of Pa. Dept. of Health dated November 10, 2021 (267 A3d 561 [Pa Commw Ct 2021]).

COVID-19 has killed over six million people worldwide, with over 978,000 of those deaths taking place in the United States and 67,000 of those deaths taking place in New York State. (World Health Organization, WHO Coronavirus [COVID-19] Dashboard, https://covid19.who.int/ [last accessed on Apr. 6, 2022].) The Key to NYC program was initially passed by then Mayor de Blasio on August 16, 2021, pursuant to the state of emergency first declared by then Governor Andrew Cuomo in March 2020. It has since been amended, superseded, and extended by subsequent executive orders, including EEO (de Blasio) Nos. 226, 228 and 239. The relevant operative language of the Key to NYC is set forth in EEO 250, signed on September 24, 2021, and was effective as of the date of commencement of the instant petition pursuant to EEO 287, dated November 8, 2021.

The Key to NYC provides that, except as otherwise provided, "a covered entity shall not permit a patron, full- or part-time employee, intern, volunteer, or contractor to enter a covered premises without displaying proof of vaccination and identification bearing the same identifying information as the proof of vaccination" (EEO 250).

A "[c]overed entity" means "any entity that operates one or more covered premises, except that it shall not include pre-kindergarten through grade twelve (12) public and non-public [*3]schools and programs, houses of worship, childcare programs, senior centers, community centers, or as otherwise indicated by this Order." (Id.)

"Covered premises" include the "indoor portions" of entertainment and recreational settings, gyms and fitness settings, and{**75 Misc 3d at 380} various food service establishments. (Id.) "Proof of vaccination" means "proof of receipt of at least one dose of a COVID-19 vaccine authorized for emergency use or licensed for use by the U.S. Food and Drug Administration or authorized for emergency use by the World Health Organization." (Id.)

As of the date of this decision, order and judgment, the Honorable Bill de Blasio's term as the Mayor of the City of New York expired, Eric Adams' term as the Mayor of the City of New York began and Eric Adams ended the Key to NYC program.

The mootness doctrine ordinarily applies to deprive a court of the ability to review a case where, as here, a change in circumstances between the parties has eliminated the controversy that once existed (Matter of Liu v Ruiz, 200 AD3d 68, 72 [1st Dept 2021]; see also Matter of Dreikausen v Zoning Bd. of Appeals of City of Long Beach, 98 NY2d 165, 172 [2002]). However, an exception exists where the case presents "(1) a likelihood of repetition, either between the parties or among other members of the public; (2) a phenomenon typically evading review; and (3) a showing of significant or important questions not previously passed on, i.e., substantial and novel issues" (Liu, 200 AD3d at 72, citing Matter of Hearst Corp. v Clyne, 50 NY2d 707, 714-715 [1980]).

[1] Inasmuch as there is a likelihood of repetition of the mandates set forth in EEO 225 depending on a change in circumstances presented by a new COVID-19 variant, and the issues raised are important and novel, the instant petition falls under the exception to the mootness doctrine and will be adjudicated on the merits.

A permanent injunction is a drastic remedy which may be granted only where the plaintiff demonstrates that it will suffer irreparable harm absent the injunction (Swartz v Swartz, 145 AD3d 818, 828 [2d Dept 2016]).

Unlike a complaint in a plenary action, a petition in a special proceeding, in which a summary determination will be made upon the pleadings, papers, and admissions to the extent that no triable issues of fact are raised, must be accompanied by competent evidence (Matter of FR Holdings, FLP v Homapour, 154 AD3d 936 [2d Dept 2017]).

Petitioners' Evidentiary Submissions

The petition is verified by one of the petitioners, Williams, and includes seven sworn declarations of fact. Three out of the{**75 Misc 3d at 381} four petitioners submitted an affidavit. The other four sworn declarations of fact were submitted by Dr. Robin Armstrong, Kevin Jenkins, Paul Elias Alexander, Ph.D., and Christina Parks, Ph.D.

The affidavit of petitioner Williams contains six allegations of fact. Williams avers that she is Black, that she is a third-grade schoolteacher and that she owns SMR Family Day Care in Brooklyn. She states that she is distrusting of Western medicine and resents being forced to take the COVID-19 vaccine to hold her teaching job.

The affidavit of petitioner Clarke contains four allegations of fact. Clarke avers that she is Black, that she is a student and an adjunct lecturer at John Jay College, and that she is working remotely due to the pandemic and the new City University of New York-wide vaccine mandate for students, faculty, and staff.

The affidavit of petitioner Mansanet contains five allegations of fact. Mansanet avers that she is Black and that she will be unable to continue working at the gym where she has been [*4]employed due to the vaccine mandate. She also states that she believes her health and her natural antibodies are strong.

On August 25, 2021, Dr. Robin Armstrong signed a written declaration affirmed as true and correct under penalty of perjury pursuant to 28 USC § 1746. Dr. Armstrong purported to offer an opinion as a medical expert. Dr. Armstrong opined that there are risks associated with universal COVID-19 vaccine mandates. The first is the certainty that some will be harmed. The second is that such a policy is fraught with racist implications as there is a distinct difference between the rates with which Black and White people are being vaccinated. Dr. Armstrong annexed her curriculum vitae.

On August 26, 2021, Kevin Jenkins signed a written declaration affirmed as true and correct under penalty of perjury pursuant to 28 USC § 1746. Jenkins purported to offer an expert opinion as a founder and CEO of Urban Global Health Alliance. Jenkins, however, did not expound upon his area of expertise. In sum and substance, Jenkins opined that Black people had sound historical reasons to be suspicious of COVID-19 vaccine mandates. Jenkins then cited several reported historical incidences of government misconduct which adversely harmed Black people. Jenkins annexed his curriculum vitae.{**75 Misc 3d at 382}

On August 25, 2021, Paul Elias Alexander, Ph.D., signed a written declaration affirmed as true and correct under penalty of perjury pursuant to 28 USC § 1746. Dr. Alexander offered an opinion as an expert in clinical epidemiology, evidence-based medicine, and research methodology. Dr. Alexander opined that the mandate to indiscriminately require the COVID-19 vaccine was a discriminatory policy on its face. Dr. Alexander annexed his curriculum vitae.

On August 29, 2021, Christina Parks, Ph.D. signed a written declaration, which she affirmed as true and correct under penalty of perjury pursuant to 28 USC § 1746. Dr. Parks purported to offer an opinion as a Ph.D. in cellular and molecular biology. Dr. Parks annexed her curriculum vitae.

For the following reasons, the petitioners' pleadings, papers, and admissions do not establish their entitlement to a judgment enjoining EEO 225 or its extension through future EEO. The affidavits of each of the petitioners merely expresses their respective personal opinions, impressions, and desires. Moreover, their affidavits do not establish any facts relevant or supportive of their contention that EEO 225 was illegal or improper on any of the grounds that they had asserted.

The declaration from each of their purported experts was equally unsupportive of the petitioners' contentions. Dr. Armstrong proffered an opinion as a medical expert regarding certain risks associated with universal COVID-19 vaccine mandates. On the question of expert witness testimony, the standard for its admission is whether the expert's opinion helps to clarify an issue calling for technical knowledge possessed by an expert and beyond that of the typical juror (see generally De Long v County of Erie, 60 NY2d 296 [1983]). Dr. Armstrong opined that EEO 225 will certainly cause harm to some individuals and that it is a policy fraught with racist implications. The opinion is conclusory and unsupported by any medical data or research, authoritative publications, peer reviewed articles, or other reliable sources in the field of medicine. In sum, Dr. Armstrong did not proffer an expert medical opinion but rather a personal and conclusory opinion.

Jenkins offered an opinion as a self-professed expert based on his experience as a founder and CEO of Urban Global Health Alliance. Jenkins, however, did not expound upon [*5]his area of expertise. The determination of a witness's qualification to testify as an expert rests in the discretion of the trial court and will not be disturbed in the absence of a serious{**75 Misc 3d at 383} mistake, an error of law, or an improvident exercise of discretion (see White v Luna, 139 AD3d 939 [2d Dept 2016]). Jenkins' ultimate opinion was that Black people have sound historical reasons to be suspicious of vaccine mandates. While the opinion may be accurate, it is, nevertheless, not an expert opinion. Nor does it support the contentions of the petitioners.

Dr. Alexander has a doctorate in clinical epidemiology, evidence-based medicine, and research methodology. Dr. Alexander offered an opinion that the mandate to indiscriminately require the COVID-19 vaccine was a discriminatory policy on its face. Dr. Alexander discussed the COVID vaccine mandates occurring in the states of California and New York and offered some data regarding the population and the policies exercised by each state in this area.

Dr. Alexander made the following statements in his declaration of facts:

"The current American political administration has, for much of the pandemic, been pushing a narrative of racial injustice. Yet the methodology employed may be creating the opposite of its promoted intentions by actually fostering more hatred, rioting, suspicion, and discrimination; made worse by COVID-19 vaccine mandates that, if not complied with, will deny access to particular jobs. Nowhere are these mandates more impactful than in the black communities; disproportionally affecting blacks on the front line of the health care system since they are among the first to have mandates issued as a condition for employment."

The provocative and internally inconsistent statement made by Dr. Alexander had no direct applicability to EEO 225. EEO 225 does not pertain to COVID-19 vaccination mandates for health care workers. Furthermore, the opinion does not support the contentions of the petitioners.

Dr. Parks received a Ph.D. in cellular and molecular biology from the University of Michigan Medical School. Dr. Parks opines that vaccine requirements and mandates are based on the faulty assumption that the vaccines in question prevent transmission of the pathogen. Dr. Parks further opines that based on her knowledge of the science she is personally hesitant to take the COVID-19 vaccine. She also contends that Black people have sound historical reasons to be hesitant and suspicious of vaccine mandates.{**75 Misc 3d at 384}

Parks made the following statements in the declaration of facts:

"I am African American and a PhD. I want to know if we are going to exclude 70% of African American people from the workforce and from education? My ancestors and family has worked very hard! I am very aware that my privileges are dependent on the work of my grandmother and my great grandmother. I have great respect for these people that put me where I am. Are you telling me that my son will not be able to be educated if, based on the history of African Americans in this country, he doesn't want to be vaccinated! I will leave you with that question. Who are we going to exclude from the workforce? Are we going to continue with discrimination and segregation in the United States of America?"

The above quoted statement is not and cannot be considered an expert opinion in cellular or microbiology. It is rather an impassioned and rhetorical statement based on Dr. Parks' personal beliefs.

The petitioners contend, inter alia, that the Key to NYC is preempted by state law, violates the New York State Constitution's right of procedural due process and privacy and bodily integrity, and violates the New York City Human Rights Law. Each contention will be addressed separately.

Respondents Lack Authority

[2] Petitioners contend that the respondents lack authority to issue the Key to NYC program. The court disagrees. The respondents' authority to enact the 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)" (see Generoso v Adams, 74 Misc 3d 760, 765 [Sup Ct,{**75 Misc 3d at 385} Kings County 2022], citing Dixon v de Blasio, 566 F Supp 3d 171, 189 [ED NY 2021]).

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" (Generoso, 74 Misc 3d at 765, citing Executive Law § 24 [1]; Dixon v de Blasio, 566 F Supp 3d at 189).

Preemption by State Law

The petitioners contend that New York City is preempted from regulating communicable diseases based on certain provisions of the Public Health Law and Sanitary Code. Broadly speaking, state preemption occurs in one of two ways—first, when a local government adopts a law that directly conflicts with a state statute and second, when a local government legislates in a field for which the state legislature has assumed full regulatory responsibility (see DJL Rest. Corp. v City of New York, 96 NY2d 91, 95 [2001]). The state legislature may expressly articulate its intent to occupy a field, but it need not (id.). The petitioners do not contend that the Key to NYC directly conflicts with any New York State law but rather that the State assumed regulatory responsibility in the area. However, the respondents have correctly contended that nothing within the Public Health Law and Sanitary Code demonstrates a detailed and comprehensive regulatory scheme such that the State intended to occupy the field of stemming the spread of communicable diseases.

[3] The court agrees and finds that the respondents were not preempted by New York State law from issuing the Key to NYC.

New York State Constitutional Right of Procedural Due Process

Article I, § 6 of the New York State Constitution guarantees that "[n]o person shall be deprived of life, liberty or property without due process of law." The petitioners contend that the Key to NYC deprives the liberty of Black New Yorkers,{**75 Misc 3d at 386} stigmatizing large percentages of them as "unwelcome" and shutting them out from city life without notice and a hearing to challenge the reasoning behind, possible exemptions from, the discriminatory effect of, and the [*7]harsh penalties imposed for violations. They further contend that the New York State Constitution provides greater protection to New Yorkers in their liberty, property and due process rights than the United States Constitution. They also contend, inter alia, that because of the lower vaccination rates among Black New York residents, the Key to NYC will disproportionally prevent Black New Yorkers from entering "covered entities."

[4] However, there is no dispute that all unvaccinated individuals, regardless of race, religion, or national origin, are treated the same under the Key to NYC. Thus, the Key to NYC is facially neutral and not applied in a discriminatory fashion against Black people. Anyone has a right to access a "covered premise," if that individual has documents showing they are vaccinated. To the extent that the Key to NYC may disproportionately affect Black people, this alleged disparity can be remedied by those individuals getting vaccinated (see Dixon v de Blasio, 566 F Supp 3d at 180). As correctly stated by the respondents, the petitioners are not entitled to notice and an opportunity to be heard before the Key to NYC was issued, as it is legislative in nature. Moreover, the petitioners may fully address their concerns in court as they are doing in the instant special proceeding.

New York State Constitutional Right of Privacy and Bodily Integrity

Petitioners contend that the Key to NYC amounts to forced vaccination and thus poses a risk to their health and safety in violation of their fundamental rights. They further contend that New York City residents, and, particularly, the Black population, should be free from a City Mayor mandating a permanent medical procedure because the Key to NYC strikes at the very heart of a person's liberty interest in their right to bodily integrity found in New York common law and New York constitutional law.

[5] Both the Supreme Court and the Second Circuit have expressly rejected the idea of a fundamental right to refuse vaccination. In Jacobson v Massachusetts (197 US 11, 25, 26-27 [1905]), the United States Supreme Court upheld a state law allowing cities and towns to implement vaccine mandates in{**75 Misc 3d at 387} order to contain smallpox outbreaks (Dixon v de Blasio, 566 F Supp 3d at 184). Because the right to refuse vaccination is not a fundamental right, Jacobson "essentially applied rational basis review" (Dixon v de Blasio, 566 F Supp 3d at 185). 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 health crisis and are not beyond all question, a plain, palpable invasion of rights secured by the fundamental law (Roman Cath. Diocese of Brooklyn v Cuomo, 592 US —, —, 141 S Ct 63, 70 [2020], quoting Jacobson v Massachusetts, 197 US at 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 the respondent Mayor's interest in curtailing the ongoing COVID-19 epidemic (Generoso, 74 Misc 3d 760, citing Jacobson v Massachusetts, 197 US at 38). The Key to NYC is constitutional because it does not mandate vaccination. Rather it merely places reasonable restrictions on those who choose not to get vaccinated (Generoso, 74 Misc 3d 760, citing Dixon v de Blasio, 566 F Supp 3d 171). These restrictions apply to all unvaccinated individuals and are rationally related to the goal of reducing COVID-19 infection rates (id). For these reasons, the issuance of the Key to NYC is neither arbitrary nor capricious.

Consequently, the Key to NYC does not violate either the due process or privacy rights [*8]of any individual as guaranteed by the United States Constitution or the New York State Constitution.

New York City Human Rights Law

[6] The court agrees with the following contentions asserted by the petitioners. The purpose of the New York City Human Rights Law (hereinafter NYCHRL) is to eliminate the presence of invidious discrimination in New York City. It seeks to do so by purging considerations of race and other protected characteristics from the City's economic and social life. Courts have repeatedly emphasized that the NYCHRL is to be construed as liberally as reasonably possible in favor of plaintiff-petitioners to the end that discrimination should not play a role in decisions (Melman v Montefiore Med. Ctr., 98 AD3d 107 [1st Dept 2012]). New York courts are emphatic that the provisions of{**75 Misc 3d at 388} the City law shall be construed liberally for the accomplishment of the uniquely broad and remedial purposes thereof, regardless of whether federal or New York State civil and human rights laws, including those laws with provisions comparably worded to provisions of this title, have been so construed (Albunio v City of New York, 16 NY3d 472, 477 [2011]). NYCHRL prohibits not only the actions of those who directly discriminate, but also actions of those who aid and abet discrimination, Administrative Code of City of NY § 8-107 (6), and actions taken in retaliation for complaints of discrimination, Administrative Code § 8-107 (7). It applies to the City of New York as much as to any other perpetrator or facilitator of racial discrimination (Albunio, 16 NY3d at 477). Those liable under section 8-107 (4) (a) of the city law for discrimination in places of public accommodation include owners, lessors, lessees, proprietors, managers, superintendents, agents or employees of any place or provider of public accommodation. All indoor venues covered under the Key to NYC constitute places of public accommodation. The court agrees with the above contentions.

The court disagrees, however, with the petitioners' contention that the respondents violated NYCHRL by issuing the Key to NYC. Petitioners contend that the issuance and implementation of the Key to NYC violates Administrative Code § 8-107 (4) and NYCHRL because of its disparate impact and disparate treatment of Black people. Petitioners further contend that Black people have a lower vaccination rate than White people due in part to their reasonable suspicion of government mandates derived from incidents of past government abuses.

There can be no dispute that the Key to NYC program is a facially neutral policy that has no discriminatory intent. The purpose of the Key to NYC program, as expressly stated in the executive order, is to encourage more City residents to get vaccinated because the leading health experts have indicated that the most effective tool to mitigate the spread of COVID-19 and protect against severe illness is through vaccination. The court agrees with the respondents' contention that all races have equal access to the vaccine and the vaccine requirement is equally applicable to all races. Moreover, the petitioners' claim of disparate impact is not supported by any admissible or reliable statistical data. The court agrees with the respondents' contention that the Key to NYC [*9]program furthered a legitimate, bona fide government interest, i.e., mitigating the spread{**75 Misc 3d at 389} of COVID-19 and protecting against severe illness and no alternative policy exists. Accordingly, the court finds that the Key to NYC program does not violate the New York City Human Rights Law. For all the foregoing reasons, the petitioners did not demonstrate that they will suffer irreparable harm absent an injunction enjoining the Key to NYC program.

It is the decision, order, and judgment of this court that the petition by Yudelka Bravo, Omar Clarke, Peggy Mansanet, and Onika Williams for a judgment permanently enjoining enforcement of Emergency Executive Order No. 225 is denied and the petition is dismissed.