Case 1:22-cv-00616-PKC-PK Document 1 Filed 02/02/22 Page 1 of 31 PageID #: 1
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`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF NEW YORK
`-----------------------------------------------------------------------X
`MATTHEW RIVERA, Individually, and for all others
`similarly situated,
`
`
`Plaintiff(s),
`
`-against-
`
`
`
`
`THE CITY OF NEW YORK, ERIC L. ADAMS,
`MAYOR OF NEW YORK CITY IN HIS OFFICIAL
`CAPACITY, NEW YORK CITY DEPARTMENT OF
`HEALTH AND MENTAL HYGIENE, DAVE A.
`CHOKSHI, COMMISIONER OF THE NYC
`DEPARTMENT OF HEALTH AND MENTAL
`HYGIENE IN HIS OFFICIAL CAPACITY,
`CONSOLIDATED EDISON COMPANY OF NEW
`YORK, INC., and UTILITY WORKERS UNION OF
`AMERICA, AFL-CIO, LOCAL UNION NO. 1-2,
`
`
`Case No.:
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`
`
`
`
`
`VERIFIED COMPLAINT
`
`
`JURY TRIAL DEMANDED
`
`Defendant(s).
`-----------------------------------------------------------------------X
`JOHN A. WEBER IV, ESQ.
`LAW FIRM OF VAUGHN, WEBER & PRAKOPE, P.L.L.C.
`Attorney for Plaintiffs
`TIMOTHY B. PRAKOPE, ESQ., co-counsel
`ROBERT MEHRAN, JR., ESQ., of-counsel
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`PRELIMINARY STATEMENT
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`This is a civil action seeking a declaratory judgment, injunctive relief, compensatory
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`damages, and special damages as it relates to the penalty provisions of the NYC Vaccine Mandate,
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`the Mandate itself and the Employment Policy of Defendant as it relates to the Mandate.
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`COMPLAINT
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`1.
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`Plaintiff Matthew Rivera, Individually, as an Employee, as a Union Member and
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`for all others similarly situated parties attached at Exhibit 1, (hereinafter collectively referred to as
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`“Plaintiffs”), by his attorneys, the Law Firm of Vaughn, Weber & Prakope, PLLC, complains of
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`1
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`the Defendants The City of New York (hereinafter “NYC”), Eric L. Adams, mayor of New York
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`City, in his official capacity (hereinafter “Mayor”), the Department of Health and Mental Hygiene
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`(hereinafter “DOHMH”), Dave A. Chokshi,, commissioner of the Department of Health and
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`Mental Hygiene, in his official capacity (hereinafter “Commissioner”), Consolidated Edison
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`Company of New York, Inc. (hereinafter “ConEd”), and the Utility Workers Union of America,
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`AFL-CIO, Local Union No. 1-2 (hereinafter “Union”).
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`NATURE OF ACTION
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`2.
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`This action is challenging the authority of the Defendants’ in issuing Executive
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`Orders 316 and 317 (the “NYC Mandate”). However, this is not a referendum on whether or not
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`a person should be required to get the vaccine or whether the vaccine is safe. Rather, it is an
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`application concerning government overreach and, more specifically, the Executive Branch taking
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`legislative action in unilaterally suspending and changing the penalty provisions under the New
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`York City Administrative Code.
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`3.
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`In doing so, the former Mayor of New York in executing and Mayor Adams in
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`continuing said NYC Mandate, exceeded authority by taking action vested solely in the
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`Legislature’s realm, violated individuals due process rights (bestowed by both the United States
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`Constitution and New York State Constitution), mandated excessive fines and created exemptions
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`to the NYC Mandate that were arbitrary and capricious.
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`4.
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`By such action, the NYC Mandate compelled ConEd to act as agents of the state
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`and comply therewith and in violation of its collectively bargained contract and without the
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`defense and protection afforded its employees through Union inaction.
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`5.
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`Given the evolving nature of COVID-19 and its ever-changing variants, infection
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`is likely to occur regardless of whether a person is fully vaccinated and/or then taken an additional
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`“booster” shot. Therefore, the very problem that the NYC Mandate is attempting to solve and
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`prevent is no longer achieved through the means which were mandated. Even the CDC recently
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`released a study evidencing that natural immunity gained by people who have suffered and
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`recovered from COVID-19 Delta variant was six times more effective at preventing future
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`infection than the vaccine1.
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`6.
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`This action seeks injunctive and declaratory relief from New York City Executive
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`Orders 316 and 317 along with the December 13, 2021, DOHMH order that mandates the COVID-
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`19 vaccination for all employees working in New York City (the “NYC Mandate”).
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`7.
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`The instant action and relief requested is necessary and warranted based upon
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`continuing case law limiting enforcement of such mandates unilaterally enacted through Executive
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`Order, and without any Legislative Action as well as the withdrawal of the Federal Vaccine
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`Mandate as an acknowledgement of lack of Executive, unilateral authority (“OSHA Mandate”).
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`8.
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`Plaintiffs are moving this Court for a temporary restraining order and preliminary
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`and injunctive relief in view of the rolling employment termination dates for Plaintiffs beginning
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`on January 18, 2022 and moving forward for noncompliance with the NYC Mandate, after which
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`Plaintiffs will be harmed irreparably by loss of employment and professional standing.
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`9.
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`Plaintiffs are also moving this Court to restore the status quo and/or employment
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`status, lost wages and benefits of any of Plaintiffs or similarly situated individuals, ConEd
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`employees and ConEd Union Members.
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`PARTIES
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`10.
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`11.
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`12.
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`Plaintiff, Matthew Rivera, is a resident of Nassau County, New York.
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`Plaintiff, Matthew Rivera, is an employee of ConEd.
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`Plaintiff, Matthew Rivera, is a Union Member of the Union.
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`1 https://www.cdc.gov/mmwr/volumes/71/wr/mm7104e1.htm?s_cid=mm7104e1_w#contribAff
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`3
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`13.
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`14.
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`15.
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`16.
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`17.
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`enforced.
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`18.
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`19.
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`There are numerous similarly situated Plaintiffs (Ex. 1).
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`There are numerous similarly situated Plaintiffs employed by ConEd.
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`There are numerous, similarly situated Plaintiffs who are members of the Union.
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`The Plaintiffs are adversely affected by the NYC Mandate.
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`The Plaintiffs will suffer imminent harm and damages if the NYC Mandate is
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`The collective Defendants are the source and cause of the Plaintiffs’ damages.
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`Defendant, NYC, is a municipal government entity organized under the laws of the
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`State of New York and at all times herein, Defendant NYC, was and still is an independent agency
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`and/or municipal governmental entity operating in and for the counties of Kings, Richmond,
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`Manhattan, Bronx and Queens. Plaintiff is suing Defendant NYC in their official capacity.
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`20.
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`Defendant Eric L. Adams (“Mayor”) is the mayor of New York City. He is
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`responsible for promulgation and enforcement of the challenged vaccine mandate. At all pertinent
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`times, Mayor has acted and will act under the color of state law and in his official capacity.
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`Defendant Mayor’s principal place of business is located at City Hall, New York, NY 10007. He
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`is sued in his official capacity.
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`21.
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`Defendant Department of Health and Mental Hygiene (“DOHMH”) is a municipal
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`government entity organized under the laws of the State of New York and at all times herein,
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`Defendant DOHMH, was and still is an independent agency and/or municipal governmental entity
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`operating in and for the counties of Kings, Richmond, Manhattan, Bronx and Queens. DOHMH is
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`responsible for promulgation and enforcement of the challenged vaccine mandate. Plaintiff is suing
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`Defendant DOHMH in their official capacity.
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`22.
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`Defendant Dave A. Chokshi (“Commissioner”) is Commissioner of Health for the
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`DOHMH. He is responsible for promulgation and enforcement of the challenged vaccine mandate.
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`At all pertinent times, Commissioner has acted and will act under color of state law. Defendant
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`Commissioner’s principal place of business is located at 42-09 28th Street, Queens, Long Island
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`City, NY, 11101. He is sued in his official capacity.
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`23.
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`Defendant Consolidated Edison Company of New York, Inc., (“ConEd”) was, and
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`still is, domestic corporation formed by and under the Laws of the State of New York with its’
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`principle place of business located at 4 Irving Place, New York, NY 10003. They are acting as
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`agents of the state and enforcing the NYC Mandate and they are being sued in their official and
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`private capacity.
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`24.
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`Defendant Utility Workers Union of America, AFL-CIO, Local Union No. 1-2,
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`(“Union”), is the designated collective bargaining agent for the ConEd employees. The Union
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`negotiates and advocates on ConEd employees’ behalf with NYC in the matters of policy, terms
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`and conditions of employment, and all matters relating to ConEd employees’ general welfare. The
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`core function of the Union is to advocate for, protect and advance the rights and interests of all
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`ConEd employees. The NYC Mandate applies to all the Union’s members and was unilaterally
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`implemented by the municipal Defendants. The Union has failed ConEd members who oppose
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`the NYC Mandate by failing to protect their Constitutional rights and negotiate terms and
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`conditions of employment.
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`25.
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`Plaintiffs seek injunctive and declaratory relief from NYC and all Defendants in
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`enforcement of the penalty provisions of the NYC Mandate.
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`26.
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`Plaintiffs further seek to strike down the unilaterally enacted, Executive Order, or
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`NYC Mandate, as it is currently written, as a violation of the Federal and New York State
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`Constitutions.
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`JURISDICTION AND VENUE
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`27.
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`This action arises under the Fourteenth and Eighth Amendments to the United
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`States Constitution and is brought pursuant to 42 U.S.C. § 1983. This action also arises under
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`federal statutory laws, namely 42 U.S.C. § 1985(3).
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`28.
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`This Court has jurisdiction over the instant matter pursuant to 28 U.S.C. §§ 1331
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`and 1343. Venue is proper in this Court pursuant to 28 U.S.C. § 1391(b)(2) because two of the
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`defendants reside in this District and a substantial part of the events or omissions giving rise to
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`Plaintiffs’ claims occurred in this District.
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`29.
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`This Court is authorized to grant declaratory judgment under the Declaratory
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`Judgment Act, 28 U.S.C. §§ 2201–02, implemented through Rule 57 of the Federal Rules of Civil
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`Procedure.
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`30.
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`This Court is authorized to grant Plaintiffs’ prayer for temporary, preliminary, and
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`permanent injunctive relief pursuant to Rule 65 of the Federal Rules of Civil Procedure.
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`31.
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`This Court is authorized to grant Plaintiffs’ prayer for relief regarding costs,
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`including a reasonable attorney’s fee, pursuant to 42 U.S.C. § 1988.
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`32.
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`This Court is requested to exercise supplemental jurisdiction with respect to
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`Plaintiff's State Law claims pursuant to 28 U.S.C. §1367.
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`NEW YORK CITY VACCINE MANDATE
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`33.
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`On December 15, 2021 Mayor Bill DeBlasio issued Emergency Executive Order
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`No. 317 (Ex. 2) which superseded Emergency Executive Order No. 316 that was issued two days
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`earlier on December 13, 2021 (Ex. 3).
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`34.
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`The NYC Mandate was based upon the New York City Department of Health and
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`Mental Hygiene (“DOHMH”) Order to Require COVID-19 Vaccination in the Workplace (Ex. 4)
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`issued on December 13, 2021 by Commissioner Dave Chokshi (hereinafter “Chokshi”).
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`35.
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`On January 1, 2022, incoming NYC Mayor Adams continued the NYC Mandate,
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`which required private employers, such as ConEd, to mandate employee vaccinations or be faced
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`with excessive fines and penalties. In practical terms, all employees in all of the five boroughs
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`were to be vaccinated or they would be terminated from employment.
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`36.
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`This action challenges the Emergency Executive Order No. 317 as being improper,
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`violative of Plaintiffs’ constitutional rights and clear governmental overreach, particularly in
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`sections:
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`§2(b): I hereby order that, except as provided in subdivision c of this section, 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.
`However, for a child under the age of 18 only proof of vaccination, and not
`additional identification, is required to be displayed.
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`§2(c): I hereby order that the following individuals are exempted from this section, and
`therefore may enter a covered premises without displaying proof of vaccination,
`provided that such individuals wear a face mask at all times except when they are
`consuming food or beverages:
`(1) Individuals 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);
`(2) A nonresident perfonning artist not regularly employed by the covered entity,
`or a nonresident individual accompanying such a performing artist, while the
`performing artist or individual is in a covered premises for the purposes of such
`artist's performance, except that a performing artist is not required to wear a face
`mask while performing;
`(3) A nonresident professional or college athlete/sports team that is not based in
`New York City (i.e., not a New York City "home team"), or a nonresident
`individual accompanying such professional or college athlete/sports team, who
`enters a covered premises as part of their regular employment for purposes of the
`professional or college athlete/sports team competition, except that such athlete is
`not required to wear a face mask while playing in a competition;
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`(4) An individual 5 years of age or older who enters a covered premises to
`participate in a school or after-school program offered by any pre-kindergarten
`through grade twelve public or non-public school, the Department of Youth &
`Community Development (DYCD), or another City agency, except that
`Department of Education (DOE) and charter school students participating in high
`risk extracurricular activities must comply with the vaccination requirements for
`high risk extracurricular activities as described in the relevant Order of the
`Commissioner of Health and Mental Hygiene Order issued on December 10, 2021;
`(5) An individual who enters for the purposes of voting or, pursuant to law, assisting
`or accompanying a voter or observing the election; and
`(6) An individual who was younger than five years of age on December 13, 2021,
`until 45 days after such individual's fifth birthday.
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`§2(k)(1): I hereby direct that any person or entity who is determined to have violated the
`requirements of the Key to NYC program shall be subject to a fine, penalty and
`forfeiture of not less than $1,000. If the person or entity is determined to have
`committed a subsequent violation of this section within twelve months of the initial
`violation for which a penalty was assessed, such person or entity shall be subject to
`a fine, penalty and forfeiture of not less than $2,000. For every violation thereafter,
`such person or entity shall be subject to a fine, penalty and forfeiture of not less
`than $5,000 if the person or entity committed the violation within twelve months
`of the violation for which the second penalty was assessed. This section may be
`enforced pursuant to sections 3.05, 3.07, or 3.11 of the Health Code and sections
`558 and 562 of the Charter.
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`§2(k)(2): I hereby suspend: (i) Appendix 7-A of Chapter 7 of Title 24 of the Rules of the
`City of New York to the extent it would limit a violation of this section to be
`punished with a standard penalty of $1,000 or a default penalty of $2,000; and (ii)
`section 7 -0 8 of such Chapter 7 and section 3 .11 of the Health Code, to the extent
`such provisions would limit the default penalty amount that may be imposed for a
`violation of this section to $2,000.
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`NO ADMINISTRATIVE PROCEEDINGS OR REMEDY AVAILABLE TO PLAINTIFFS
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`37.
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`This action is commenced to contest the NYC Mandate because its promulgation
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`evaded legislative authority and violated due process protections guaranteed to Plaintiffs under the
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`New York State and United States Constitutions.
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`38.
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`There is no vehicle provided to Plaintiffs, in the plain language of the NYC
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`Mandate itself, to review or appeal its directives, prompting the initiation of legal action to seek
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`the relief prayed for herein.
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`39.
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`Despite the forgoing, Plaintiffs suffer the imminent risk of harm of penalties
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`approaching $1,818,000.00 per year with no legislative action having been taken and no avenue to
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`appeal such a penalty.
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`FACTS
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`PRESIDENTIAL EXECUTIVE ORDER AND OSHA RULE
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`40.
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`On September 9, 2021, President Joseph Biden gave a national address in which he
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`instructed the Occupational Safety and Health Administration (hereinafter “OSHA”) to impose a
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`strict COVID-19 vaccination and testing protocols on large businesses.
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`41.
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`In response to President Joseph Biden’s directive, OSHA issued a Healthcare
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`Emergency Temporary Standard (ETS) on November 5, 2021, that required businesses with more
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`than 100 employees to force their employees to obtain a COVID-19 vaccination or face severe
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`fines and penalties.
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`42.
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`In response to this Order, multiple businesses challenged OSHA’s unlawful
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`mandate and on January 13, 2022, the Supreme Court of the United States granted a stay of the
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`OSHA mandate acknowledging that the power to respond to the COVID-19 pandemic lies with
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`States and Congress, and not OSHA.
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`43.
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`Justice Gorscuh concluded that “[I]f the Court were to abide them only in more
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`tranquil conditions, declarations of emergencies would never end and the liberties of our
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`Constitution’s separation of powers seeks to preserve would amount to little.”
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`44.
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`President Joseph Biden also issued Executive Order No.: 14043 on September 9,
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`2021, which amounted to a presidential mandate that all federal employees consent to vaccination
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`against COVID-19 or lose their jobs.
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`45.
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`On January 21, 2022, taking into consideration the January 13, 2022, Supreme
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`Court Ruling granting a restraining order against OSHA, Justice Jeffrey Vincent Brown of the
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`United States District Court of the Southern District of Texas granted federal employee petitioners
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`a restraining order for implementation of EO No.: 14043. (Ex. 5).
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`46.
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`On January 25, 2022, President Biden withdrew his Executive Order as an
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`acknowledgment of its unenforceability.
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`47.
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`Despite the forgoing, and the current challenge to the NYS Governor’s authority to
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`issue unilateral Executive Orders, the NYC Mandate continues as does the ConEd policy
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`concerning same.
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`NEW YORK CITY VACCINE MANDATE AND DOHMH MANDATE
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`48.
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`On December 13, 2021 the former mayor of NYC, Bill de Blasio, and DOHMH
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`issued further orders pursuant to the “Key to the City” program that required employees, by
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`December 27, 2021, to provide proof of vaccination against COVID-19 to their employer before
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`entering the workplace, and the employer must exclude from the workplace any employee who
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`has not provided such proof 2.
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`49.
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`For the purposes of the DOHMH Order, employers, the “covered entities” include:
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`(i) any non-governmental entity that employs more than one worker in New York City or maintains
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`a workplace in New York City; or (ii) any self-employed individual or a sole practitioner who
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`works at a workplace or interacts with workers or the public in the course of their business. This
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`applies to approximately 184,000 businesses.
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`50.
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`An employee means an individual, a worker, who works in-person in New York
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`City at a workplace. Workers includes a full- or part-time staff member, employer, employee,
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`intern, volunteer or contractor of a covered entity, as well as a self-employed individual or a sole
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`2 https://www1.nyc.gov/office-of-the-mayor/news/807-21/mayor-de-blasio-vaccine-mandate-private-sector-
`workers-major-expansions-to
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`practitioner. There are approximately 3,753,700 private sector employees in the NYC five borough
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`area that this order effects3.
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`51.
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`Covered entities must maintain a copy of each worker’s proof of vaccination and,
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`if applicable, a record of reasonable accommodation.
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`52.
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`The DOHMH Order maintains that “As long as you keep the worker out of the
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`workplace, it is your decision whether to discipline or fire such worker, or if the worker can
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`contribute to your business while working remotely.”
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`53.
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`But if a business refuses to comply, they are subject to a fine of $1,000 (for 1st
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`offense), $2,000 (for 2nd offense) and $5,000 (for every additional offense) in escalating penalties
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`scheme if violations persist.
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`54.
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`55.
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`ConEd is a “covered entity” under the DOHMH Order.
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`On December 13, 2021, the same day as the DOHMH Order (see Ex. 4), NYC
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`issued Emergency Executive Order No. 316 (see Ex. 3) to follow the guidance of DOHMH’s
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`Order.
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`56.
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`On December 15, 2021, NYC issued the NYC Mandate, thereby replacing
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`Emergency Executive Order No. 316. NYC Mandate was issued by Mayor DeBlasio and without
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`the legislative enactment procedures (see Ex. 2).
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`57.
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`Section 2(k)(2) of the NYC Mandate suspended the Rules of the City of New York,
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`Title 24, Chapter 7, Appendix 7-A to permit excessive fines and penalties of standard and default
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`variety and suspended Chapter 7, Section 7-08 and City of New York Health Code, Section 3.11
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`to permit excessive default penalties (see Ex. 2, pg. 6).
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`3 https://dol.ny.gov/labor-statistics-new-york-city-region
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`58.
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`The suspension of the City of New York Rules and Health Code were done without
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`notice, authority and adverse to the Due Process protections of the United States Constitution’s
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`Fourteenth Amendment and New York State Constitution.
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`59.
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`The City of New York Rules, § 7-02 Adjudications Seeking Civil Fines sets forth
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`that “In accordance with Sections 1041 and 1046 of the Charter, adjudicatory hearings commenced
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`by service of a civil summons or notice of violation seeking a civil fine or monetary penalty for
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`violations of State and local law enforced by the Department shall be conducted by the OATH
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`Hearings Division.” (Added City Record 11/9/2018, eff. 12/9/2018).
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`60.
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`For Mandatory Fines and Penalties, § 7-03 provides, (a) for Fixed penalties, “When
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`a monetary fine or penalty for a violation enforced by the Department is specified in the Health
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`Code, a rule of the Department, including in Appendix 7-A of this Chapter, or in any other
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`applicable law, a hearing officer must impose that fine or penalty if the hearing officer sustains the
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`violation.”
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`61.
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`For Other Health Code violations, subsection (b) provides that, “Fines imposed for
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`Health Code violations that are not specified in Appendix 7-A of this Chapter or in another law or
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`rule must be within the range provided in 24 RCNY Health Code § 3.11 or a successor provision.”
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`(Added City Record 11/9/2018, eff. 12/9/2018).
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`62.
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`Section 7-08 states that, “Pursuant to Section 1048 of the Charter, the
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`Commissioner delegates to the OATH Trials Division authority to conduct hearings of matters
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`pertaining to the enforcement of State and local law within the jurisdiction of the Department
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`where an OATH administrative law judge shall make and submit recommended findings of fact,
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`decisions, determinations and orders to the Commissioner who shall make final findings,
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`determinations and orders in accordance with 24 RCNY Health Code Article 5 or other applicable
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`law. Such hearings include but are not limited to matters where a respondent must be provided
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`with a hearing or an opportunity to be heard and show cause why the Commissioner should not
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`issue an order or take other action (i) to suspend or revoke a license, permit or registration of a
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`business or activity whose operation or conduct is deemed detrimental to the public health; (ii) to
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`abate nuisances or other detrimental health conditions, including closing, padlocking and sealing
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`premises deemed a public nuisance; (iii) to require an entity to cease and desist from specific acts
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`that endanger public health; or (iv) with respect to Department employee matters pursuant to New
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`York Civil Service Law. (Added City Record 11/9/2018, eff. 12/9/2018).
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`63.
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`There is no provision in the City of New York Rules, including Title 24, Chapter
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`7, that permits the Mayor to eliminate the OATH hearing process by executive order or by any
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`other means.
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`64.
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`In eliminating the OATH hearing process and any adjudication by a hearing officer
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`or tribunal, the NYC Mandate eliminated the Due Process protections guaranteed to Plaintiffs and
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`offered no administrative remedy for review or appeal.
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`65.
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`Additionally, the NYC Mandate arbitrarily and capriciously carves out exceptions
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`to those required to be vaccinated in order to enter a “covered entity” in §2(c) thereof.
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`66.
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`Plaintiffs were not afforded the same treatment under the NYC Mandate as
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`entertainers (§2(c)(2)), athletes (§2(c)(3)) or voters (§2(c)(5)) among others (see Ex. 2, pgs. 2-3).
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`67.
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`The NYC Mandate does not provide a procedural remedy for businesses or
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`companies like ConEd to challenge the NYC Mandate or penalties issued thereunder.
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`68. While the NYC Mandate does not explicitly require ConEd to terminate its
`
`employees, who can neither work remotely or be readily replaced, the NYC Mandate essentially
`
`forces employers to terminate its workers or be in violation of the NYC Mandate because of the
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`astronomical fines and penalties that ConEd would incur by keeping them. In essence, it is a
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`constructive order of termination.
`
`69.
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`NYC Mandate does not provide any process to request a stay or appeal of the NYC
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`Mandate, which places businesses and their employees across New York City in jeopardy as
`
`Defendants implement and enforce the NYC Mandate.
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`COUNT I:
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`VIOLATION OF THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH
`AMENDMENT TO THE UNITED STATES CONSTITUTION (42 U.S.C. § 1983)
`
`70.
`
`Plaintiffs hereby reallege and adopt each and every allegation in paragraphs “1”
`
`through “69” above as if fully set forth herein.
`
`71.
`
`The Fourteenth Amendment to the United States Constitution guarantees Plaintiffs’
`
`right to equal protection under the law.
`
`72.
`
`The NYC Mandate, on its face and as applied, is an unconstitutional abridgment of
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`Plaintiffs’ right to equal protection, is not neutral, and specifically provides Plaintiffs with
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`discriminatory and unequal treatment as compared with entertainers, athletes and voters in New
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`York City.
`
`73.
`
`The NYC Mandate, on its face and as applied, is an unconstitutional abridgement
`
`of Plaintiffs’ right to equal protection because it permits the City to treat Plaintiffs differently from
`
`similarly situated workers solely on the basis of Plaintiffs’ job description.
`
`74.
`
`The NYC Mandate, on its face and as applied, also singles out Plaintiffs for
`
`selective treatment based upon their personal medical decisions and objections to the COVID-19
`
`vaccines.
`
`75.
`
`The NYC Mandate, on its face and as applied, creates a system of classes and
`
`categories that improperly accommodates exemptions for the class of sports and entertainment
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`workers concerned with bodily health while denying exemption to other types of workers
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`concerned with spiritual health above bodily health, including a majority of the Plaintiffs herein.
`
`76.
`
`The NYC Mandate, reversing the City’s policy of only days before, arbitrarily and
`
`capriciously attempts to deny Plaintiffs and others similarly situated, the protection afforded other
`
`workers without any logical or beneficial public health reason.
`
`77.
`
`No logical reason is set forth as to why a performing artist would pose any less of
`
`a threat to public health safety than one of Plaintiffs would pose while in a company car for a
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`majority of the workday.
`
`78.
`
`There is no rational, legitimate, or compelling interest in the NYC Mandate’s
`
`application of different standards to different, similarly situated groups of workers located in NYC.
`
`79.
`
`The NYC Mandate, on its face and as applied, is a status-based enactment divorced
`
`from any factual context and a classification of persons undertaken for its own sake, which the
`
`Equal Protection Clause does not permit.
`
`80.
`
`The NYC Mandate, on its face and as applied, identifies persons by a single trait
`
`and then denies them protections across the board. Here, the trait is job description.
`
`81.
`
`A law declaring that in general it shall be more difficult for one group of citizens
`
`than for all others to seek, an exemption from the COVID-19 Vaccine Mandate, is itself a denial
`
`of equal protection of the laws in the most literal sense.
`
`82.
`
`The NYC Mandate, on its face and as applied, has caused, is causing, and will
`
`continue to cause irreparable harm and actual and undue hardship to Plaintiffs from violation of
`
`their rights to be treated equally to all other similarly situated persons.
`
`83.
`
`Plaintiffs have no adequate remedy at law for the continuing deprivation of their
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`rights under the Equal Protection Clause.
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`15
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`COUNT II:
`
`VIOLATION OF THE DUE PROCESS CLAUSE OF THE FOURTEENTH
`AMENDMENT TO THE UNITED STATES CONSTITUTION (42 U.S.C. § 1983)
`
`84.
`
`Plaintiffs hereby reallege and adopt each and every allegation in paragraphs “1”
`
`through “83” above as if fully set forth herein.
`
`85.
`
`On December 15, 2021, the NYC Mandate was issued by Mayor DeBlasio via
`
`Emergency Executive Order without deliberation of the legislature or legal authority conferred by
`
`any statute, rule, regulation or law conferred upon him by New York City or State.
`
`86.
`
`The NYC Mandate suspended New York City Rules Title 24, Chapter 7, Appendix
`
`7-A and 7-09 and Health Code §3.11 thereby eliminating an impediment to excessively fining
`
`noncompliance by removing the usual OATH hearing required by the suspended law.
`
`action.
`
`87.
`
`88.
`
`The NYC Mandate is not a law and was not implemented through any legislative
`
`The Executive Branch unilaterally altered, suspended and/or removed codified laws
`
`without legislative action or authority to do so.
`
`89.
`
`NYC’s Mandate took no care to implement a process for review or appeal by those
`
`persons and entity charged as a violator of the executive order.
`
`90.
`
`The fines imposed by the NYC Mandate at §2(k)(2) are excessive in violation of
`
`the Eight Amendment to the United States Constitution and the New York State Constitution.
`
`91.
`
`The issuance of the NYC Mandate by Emergency Executive Order and eliminating
`
`the OATH hearings are both violations of the Fourteenth Amendment’s Due Process Clause as
`
`well as the Due Process Clause of the New York State Constitution.
`
`COUNT III:
`
`THE NYC MANDATE VIOLATES THE EXCESSIVE FINES CLAUSES OF THE
`EIGHTH AMENDMENT TO THE UNITED STATES CONSTITUTION
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`16
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`92.
`
`Plaintiffs hereby reallege and adopt each and every allegation in paragraphs “1”
`
`through “91” above as if fully set forth herein.
`
`NYC Mandate §2(k)(1) sets forth that,
`
`“I hereby direct that any person or entity who is determined to have violated
`the requirements of the Key to NYC program shall be subject to a fine,
`penalty and forfeiture of not less than $1,000. If the person or entity is
`determined to have committed a subsequent violation of this section within
`twelve months of the initial violation for which a penalty was assessed, such
`person or entity