COVID-19 Litigation, Like the Pandemic Itself, Appears to Be Winding Down in NDNY

Since the publication of the Early Winter 2021 issue of the NDNY-FCBA newsletter, the issuance of decisions regarding New York State’s response to the COVID-19 pandemic has increased in pace, while the decisions themselves appear to have generally diminished in complexity when compared to the complexity of prior such decisions, as the law has been clarified by the Second Circuit, and various COVID-19 restrictions have been lifted.

Specifically, eleven such decisions (in seven cases) were reported in the Early Winter 2021 issue (which examined the 63-week period from August 15, 2020 to October 29, 2021); and eight such decisions (in seven cases) were reported in the Fall 2020 issue (which examined the 21.5-week period from March 15, 2020, to August 14, 2020). However, during the 16.5-week period between October 30, 2021, and February 23, 2022, ten such decisions were issued (in ten  cases) arising from the following responses by New York State to the COVID-19 pandemic:

  • limits on capacities of weddings at indoor restaurants;
  • limits on inspecting records at State correctional facilities;
  • mask mandate in K-12 schools;
  • mask mandate for New York State Court Reporters;
  • precautions at nursing homes;
  • restrictions on religious schools;
  • tolling of New York statutes of limitation during COVID-19; and
  • vaccination mandate on health care workers.

Generally, the decisions addressed fewer issues, and/or did so with briefer analysis, than  did prior such decisions. In addition, briefing has been completed on a motion for preliminary injunction in a case challenging the New York State Department of Health’s recently established guidelines for medical providers to give priority to “non-whites.”

Limits on Capacities of Weddings at Indoor Restaurants

In DiMartile v. Cuomo, 20-CV-0859, 2021 WL 5071832 (N.D.N.Y. Nov. 2, 2022) (Suddaby, C.J.), two engaged couples and an ordained minister (“plaintiffs”) sued the New York State governor and various public officials (“defendants”) under 42 U.S.C. § 1983 for violating the First Amendment’s Free Exercise Clause and Free Assembly Clause, and the Fourteenth Amendment’s Equal Protection Clause and Due Process Clause.  Plaintiffs’ claims arose from the disparity between the Governor’s executive orders placing a 50-person limit on non-essential gatherings, including weddings at indoor restaurants, and those permitting larger gatherings for other purposes (including indoor restaurant patronage). Following the dismissal of plaintiffs’ claims as moot (given one couple’s statement that they no longer intend to hold a wedding while New York’s COVID-19 gathering limitations are in effect), plaintiffs moved for attorneys’ fees as the “prevailing party” under Fed. R. Civ. P. 54(d), because the Court had granted the other couple’s motion for a preliminary injunction and subsequently denied defendants’ motion to stay the injunction pending appeal. Chief U.S. District Judge Glenn T. Suddaby denied the motion, finding that plaintiffs are not the “prevailing party” under Fed. R. Civ. P. 54(d), because the Second Circuit subsequently granted defendants’ motion to stay the preliminary injunction pending appeal.

Limits on Inspecting Records at State Correctional Facilities

In Disability Rights New York v. New York State DOCCS, 21-CV-0739, 2022 WL 484368 (N.D.N.Y. Feb. 17, 2022) (Suddaby, C.J.), plaintiff sued the New York State Department of Corrections and Community Supervision and its acting commissioner (“defendants”), to enforce its statutory authority to obtain records of those incarcerated individuals who have alleged, or been the subject of, abuse and neglect or other rights violations, and have requested plaintiff’s assistance. Plaintiff moved for a preliminary injunction requiring defendants to provide access to copies of certain records requested pursuant to its statutory authority. Chief U.S. District Judge Glenn T. Suddaby granted plaintiff’s motion, finding (among other things) that defendants had provided no legal authority for their “temporary suspension” of plaintiff’s right to visit state correctional facilities and search for the records in question due to the COVID-19 pandemic, and that “Defendants’ reliance on the COVID-19 pandemic does not excuse it from abiding by existing federal statutes that place mandates and responsibilities on P&A [Protection and Advocacy] systems such as Plaintiff.”

Mask Mandate in K-12 Schools

In L.T. v. Zucker, 21-CV-1034, Memorandum-Decision and Order (N.D.N.Y. filed Dec. 22, 2021) (Kahn, J.), nine minor students attending K-12 schools and their parents (“plaintiffs”) sued the New York State Commissioner of Health (“defendant”) based on the Department of Health’s issuance of an Emergency Rule and separate determination requiring any person over age two, and medically able to tolerate wearing a face mask, to wear such a mask in K-12 school settings. Based on these factual allegations, plaintiffs claimed that defendants violated their rights under the First Amendment’s Free Speech and Free Association Clauses, Article VI’s Supremacy Clause (and the FDA’s regulations regarding face coverings), and the Fourteenth Amendment’s Due Process Clause.  Plaintiffs moved for a preliminary injunction.  Senior U.S. District Judge Lawrence E. Kahn denied plaintiffs’ motion for a preliminary injunction, finding that they have not shown they are likely to succeed in establishing that the conduct at issue falls under the protective umbrella of the First Amendment or, even if it does, that the Mask Mandate would not pass intermediate scrutiny. However, he also ruled that, because the present situation is continually evolving, he is willing to entertain future applications for injunctive relief

Mask Mandate for New York State Court Reporters

In Ferrelli v. N.Y. Unified Ct. Sys., 1:22-CV-0068 (LEK/CFH), 2022 WL 673863 (N.D.N.Y. March 7, 2022) (Kahn, J.), five court reporters employed by the New York Unified Court System in Suffolk and Albany Counties (“plaintiffs”) sued their employer and two of its officials (“defendants”) based on the employer’s issuance of a vaccine mandate in September 2021, claiming that the vaccine mandate as a whole, and the religious exemption process in particular, violated their First Amendment right to freedom of religion.  Plaintiffs moved for a temporary restraining order and preliminary injunction. Senior U.S. District Judge Lawrence E. Kahn denied the motion, because the mandate easily meets the rational basis standard and, even if defendants’ exemption process were subject to strict scrutiny, the Court would find plaintiffs unlikely to succeed on the merits of their First Amendment claims.

Precautions at Nursing Homes

In Conte v. Kingston NH Operations LLC, 20-CV-0647, 2022 WL 356753 (N.D.N.Y. Feb. 7, 2022) (Suddaby, C.J.), a former employment recruiter for a for-profit rehabilitation and nursing care center (“plaintiff”) sued the operator of that center for submitting claims seeking reimbursement by both Medicaid and Medicare while ignoring COVID-19-related precautions. Based on these factual allegations, plaintiff asserted claims for presenting false claims for payment under the False Claims Act (the “FCA”), using false statements under the FCA, presenting false claims for payment under the New York False Claims Act (the “NYFCA”), using false statements under the NYFCA, and retaliation. Defendant moved to dismiss plaintiff’s complaint for failure to state a claim. Chief U.S. District Judge Glenn T. Suddaby granted defendant’s motion, finding that plaintiff failed to allege facts plausibly suggesting (let alone with particularity under Fed. R. Civ. P. 9) that defendant submitted any Medicaid claims for services that were performed by employees who, at the time of performing the service, ignored COVID-19-related precautions.

Restrictions on Religious Schools

In Lebovits v. Cuomo, 20-CV-1284, 2022 WL 344269 (N.D.N.Y. Feb. 2, 2022) (Sharpe, J.), two parents and a private school (“plaintiffs”) sued the New York State governor, three other government individuals, the City of New York and one of its departments (“defendants”) based on the issuance of Executive Order 202.28 (formalizing the Governor’s Cluster Action Initiative), and requested (among other things) declaratory relief allowing the school to reopen on October 27, 2020. Defendants moved to dismiss plaintiff’s complaint for failure to state a claim. U.S. District Judge Gary L. Sharpe granted the city defendants’ motion to dismiss, and granted in part, and denied in part, the state defendants’ motion to dismiss, ruling as follows: (1) mootness precludes plaintiffs’ claims for declaratory relief, given the subsequent developments related to New York’s handling of the COVID-19 pandemic, including the revocation of Executive Order 202.28, and termination of Defendant Cuomo’s emergency powers and the COVID-19 state of emergency, and the fact that there is no reasonable expectation that the alleged violation will recur; (2) lack of personal involvement precluded plaintiffs’ claims for damages against the city defendants; (3) sovereign immunity precluded plaintiffs’ claims for damages against the state defendants in their official capacities; and (4) legislative immunity does not preclude plaintiffs’ claims against Defendant Cuomo in his individual capacity.

Tolling of New York Statutes of Limitation During COVID-19

In Afanassieva v. Page Transportation, Inc., 20-CV-1109, 2021 WL 5446948 (N.D.N.Y. Nov. 22, 2021) (Sharpe, J.), a husband and wife (“plaintiffs”) sued a transportation company and its truck driver (“defendants”) for personal injuries arising from a motor vehicle accident. Plaintiffs moved for reconsideration of the Court’s prior decision granting defendants’ motion to dismiss plaintiff’s complaint as untimely. Senior U.S. District Judge Gary L. Sharpe granted defendants’ motion after rejecting plaintiffs’ argument that the New Jersey statute of limitations, which governs their claims, should have been tolled by the New York State Governor’s executive orders tolling all New York statutes of limitation–including New York’s borrowing statute–during COVID-19 for a period of 228 days.

Vaccination Mandate on Health Care Workers

In Dr. A v. Hochul, 21-CV-1009, 2022 WL 548260 (N.D.N.Y. Feb. 23, 2022) (Hurd, J.), seventeen medical professionals employed in New York State (“plaintiffs”) sued the New York State governor and two other government individuals (“defendants”) based on the state’s promulgation of a regulation (10 N.Y.C.R.R. § 2.61) requiring–without any religious exemption–that personnel employed at general hospitals and nursing homes receive their first dose of a COVID-19 vaccine by September 27, 2021, and that personnel employed at other covered entities receive a vaccine by October 7, 2021. Based on these factual allegations, plaintiffs claimed that defendants violated their rights under the First Amendment’s Free Exercise Clause, Article VI’s Supremacy Clause (because the regulation runs afoul of Title VII of the Civil Rights Act of 1964), and the Fourteenth Amendment’s Equal Protection Clause. Following the Second Circuit’s vacating and remanding a district court decision that had granted plaintiffs’ motion for a preliminary injunction, plaintiffs amended their complaint to add a preemption claim and a claim that they were unlawfully disqualified from unemployment benefits, and again moved for a preliminary injunction. U.S. District Judge David N. Hurd denied plaintiffs’ renewed motion for a preliminary injunction, ruling as follows: (1) plaintiffs were not likely to succeed on the merits of their conflict-preemption argument, their field-preemption argument, and their claim that denial of unemployment benefits violated their rights under the Free Exercise Clause; and (2) plaintiffs did not establish that they would suffer irreparable harm absent a preliminary injunction.

In Doe v. Hochul, 21-CV-1078, 2022 WL 446332 (N.D.N.Y. Feb. 14, 2022) (Hurd, J.), an employee of a private hospital (“plaintiff”) sued (among others) her employer (“Defendant Lourdes”) based on the state’s promulgation of a regulation (10 N.Y.C.R.R. § 2.61) requiring–without any religious exemption–that most healthcare workers be vaccinated against COVID-19.  Based on these factual allegations, plaintiff claimed violations of (1) the First Amendment’s Free Exercise and Establishment Clauses, (2) the Fourteenth Amendment’s Equal Protection Clause, (3) the Supremacy Clause, and (4) Title VII of the Civil Rights Act of 1964. Defendant Lourdes moved to dismiss plaintiff’s claims against it for failure to state a claim. U.S. District Judge David N. Hurd granted Defendant Lourdes’ motion because Lorudes was not a state actor for purposes of 42 U.S.C. § 1983, and plaintiff has not exhausted her available administrative remedies against Lourdes with respect to her Title VII claim.

In Andre-Rodney v. Hochul, 21-CV-1053, 2021 WL 5050067 (N.D.N.Y. Nov. 1, 2021) (Sannes, J.), nine New York State security officers who worked at hospitals (“plaintiffs”) sued the New York State governor, health commissioner, Department of Health, and Public Health and Planning Council (“defendants”), under 42 U.S.C. § 1983, alleging that the mandate (codified at 10 N.Y.C.R.R. § 2.61) that they be fully vaccinated against COVID-19 and receive a first dose of the vaccine by a certain date violated their equal protection and due process rights. Plaintiffs moved for preliminary injunction. U.S. District Judge Brenda K. Sannes denied the motion, ruling as follows: (1) the mandate did not burden fundamental rights, and thus was subject to rational basis review; (2) plaintiffs did not demonstrate a likelihood of success on the merits of their equal protection claim, their substantive due process claim, and their procedural due process claim; and (3) plaintiff did not demonstrate that they would suffer irreparable harm if they were not granted relief.

Guidelines for Medical Providers to Give Priority to “Non-Whites”

In Jacobson v. Bassett, 22-CV-0033 (MAD/ML), a professor at Cornell University (“plaintiff”) sued the Acting Commissioner of the New York State Department of Health (“defendant”) based on the department’s recent establishment of guidelines for medical providers to give automatic priority to “non-whites” and individuals with “Hispanic/Latino ethnicity” in distributing life-saving COVID-19 treatments. Based on these factual allegations, plaintiff claimed violations of the Fourteenth Amendment’s Equal Protection Clause, Title VI of the Civil Rights Act of 1964, and Section 1557 of the Affordable Care Act. Briefing on plaintiff’s motion for a preliminary injunction (including the acceptance of an amicus curiae brief) was completed on March 4, 2022.