FILED: NEW YORK COUNTY CLERK 12/16/2021 09:59 AM
`NYSCEF DOC. NO. 25
`
`INDEX NO. 160914/2021
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`RECEIVED NYSCEF: 12/16/2021
`
`1
`
`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF NEW YORK:
`----------------------------------------------------x
`ANTHONY MARCIANO, Individually, and on behalf of
`all other individuals similarly situated,
`Plaintiff/Petitioners,
`
`-against-
`
`Index:
`160914/21
`
`BILL DE BLASIO, MAYOR OF THE CITY OF NEW YORK, in
`his Official Capacity; DAVE A. CHOCKSHI,
`COMMISSIONER OF HEALTH AND MENTAL HYGIENE, in his
`Official Capacity; DERMOT SHEA, POLICE COMMISSIONER,
`In his Official Capacity; THE NEW YORK CITY BOARD
`OF HEALTH; and THE CITY OF NEW YORK,
`Defendants/Respondents.
`----------------------------------------------------x
`New York County Supreme Court
`MICROSOFT TEAMS
`80 Centre Street
`New York, New York 10013
`December 14, 2021
`FRANK P. NERVO, Justice of the Supreme Court
`
`B E F O R E:
`
`A P P E A R A N C E S:
`
`PATRICIA FINN, ESQ.
`Attorney for Plaintiff/Petitioners
`58 East Route 59, Suite 4
`Nanuet, New York 10954
`
`NEW YORK CITY LAW DEPARTMENT
`OFFICE OF THE CORPORATION COUNSEL
`Attorneys for Defendants/Respondents
`100 Church Street
`New York, New York 10007
`BY: EUGENIA FOWLKES, ESQ.
`IVAN A. MENDEZ, JR., ESQ.
`
`Tal R. Hahn,
`Senior Court Reporter
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`NYSCEF DOC. NO. 25
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`INDEX NO. 160914/2021
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`RECEIVED NYSCEF: 12/16/2021
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`1
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`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF NEW YORK:
`----------------------------------------------------x
`ANTHONY MARCIANO, Individually, and on behalf of
`all other individuals similarly situated,
`Plaintiff/Petitioners,
`
`-against-
`
`Index:
`160914/21
`
`BILL DE BLASIO, MAYOR OF THE CITY OF NEW YORK, in
`his Official Capacity; DAVE A. CHOCKSHI,
`COMMISSIONER OF HEALTH AND MENTAL HYGIENE, in his
`Official Capacity; DERMOT SHEA, POLICE COMMISSIONER,
`In his Official Capacity; THE NEW YORK CITY BOARD
`OF HEALTH; and THE CITY OF NEW YORK,
`Defendants/Respondents.
`----------------------------------------------------x
`New York County Supreme Court
`MICROSOFT TEAMS
`80 Centre Street
`New York, New York 10013
`December 14, 2021
`FRANK P. NERVO, Justice of the Supreme Court
`
`B E F O R E:
`
`A P P E A R A N C E S:
`
`PATRICIA FINN, ESQ.
`Attorney for Plaintiff/Petitioners
`58 East Route 59, Suite 4
`Nanuet, New York 10954
`
`NEW YORK CITY LAW DEPARTMENT
`OFFICE OF THE CORPORATION COUNSEL
`Attorneys for Defendants/Respondents
`100 Church Street
`New York, New York 10007
`BY: EUGENIA FOWLKES, ESQ.
`IVAN A. MENDEZ, JR., ESQ.
`
`Tal R. Hahn,
`Senior Court Reporter
`
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`FILED: NEW YORK COUNTY CLERK 12/16/2021 09:59 AM
`NYSCEF DOC. NO. 25
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`INDEX NO. 160914/2021
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`RECEIVED NYSCEF: 12/16/2021
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`Proceedings
`Supreme Court,
`COURT OFFICER:
`All rise.
`State of New York, Civil Term is now in session.
`Honorable Frank Nervo presiding.
`Be seated and come to
`order.
`
`2
`
`When
`
`Be seated please.
`All right.
`THE COURT:
`Before we begin, I am going to request that counsel
`address the Court from the podium.
`When you are
`addressing the Court from the podium, if you are
`comfortable with it, you could remove your mask.
`not addressing the Court and when at counsel table
`kindly leave your masks on.
`You will see the Court is
`without a mask so I could be heard through the PA
`system.
`I hermetically sealed myself in this little
`box as best as I could.
`Under the new modified rules
`of the court that is permissible, what I just
`suggested.
`So this is the matter of Anthony Marciano,
`individually, and on behalf of all other individuals
`similarly situated.
`Plaintiff/petitioner is against
`Bill De Blasio, Mayor of the City of New York and
`others, under Index Number 160914 of 2021.
`May we have your appearances for the record,
`please, initially on behalf of the plaintiff.
`MS. FINN:
`Yes.
`Good afternoon, your Honor.
`THE COURT:
`I can't hear.
`Sorry.
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`FILED: NEW YORK COUNTY CLERK 12/16/2021 09:59 AM
`NYSCEF DOC. NO. 25
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`INDEX NO. 160914/2021
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`RECEIVED NYSCEF: 12/16/2021
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`Proceedings
`Patricia Finn, F-I-N-N, for
`
`3
`
`And on behalf
`
`MS. FINN:
`plaintiff.
`Very good.
`Okay.
`THE COURT:
`of the defendant/respondents?
`MS. FOWLKES:
`Good afternoon.
`COURT OFFICER:
`Press the button.
`MS. FOWLKES:
`Good afternoon.
`This is
`Eugenia Fowlkes, assistant corporation counsel, counsel
`for the City, respondents.
`MR. MENDEZ:
`And Ivan Mendez, your Honor,
`just observing.
`The Court has reviewed the
`THE COURT:
`submissions by the plaintiff and of course by the
`defendants.
`And it's -- it appears to the Court, and I
`am sure I will be corrected if I am wrong, that the
`petition is based on essentially three premises; the
`order that was issued -- the orders that were issued
`violate certain of petitioner's constitution on civil
`rights to, among other things, refuse informed consent;
`that it violates the petitioner's right to Due Process
`because the vaccinations have not been approved.
`Secondly, that the authority to make the
`determination to impose vaccination mandates is in the
`legislature.
`And with respect to the action against
`the Police Department and the Commissioner, that said
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`FILED: NEW YORK COUNTY CLERK 12/16/2021 09:59 AM
`NYSCEF DOC. NO. 25
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`INDEX NO. 160914/2021
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`Proceedings
`Commissioner had no right or authority to issue said
`rules and then enforce them, both constitutionally and
`because they violate a contract.
`Ms. Finn, did I essentially state your
`
`4
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`position?
`
`Yes, your Honor.
`MS. FINN:
`Okay.
`I would like you to
`THE COURT:
`address, if you don't mind, at the outset, the
`allegation that the Mayor had no authority to issue
`these orders to begin with in as much as, among other
`reasons, there was no legislative authorization
`provided?
`
`There or here?
`MS. FINN:
`Please.
`I think it's probably
`THE COURT:
`best if you go from the podium.
`MS. FINN:
`Sure.
`THE COURT:
`If that works for you.
`MS. FINN:
`Yes.
`(Brief pause.)
`MS. FINN:
`Your Honor, I -- our position is
`indeed that the respondents do not have the authority
`to mandate a mask on any NYPD employee.
`And you had
`mentioned that it was a lack of legislative authority,
`but I think we could peel that back and go one further;
`it's actually preempted by Congress.
`That goes to the
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`FILED: NEW YORK COUNTY CLERK 12/16/2021 09:59 AM
`NYSCEF DOC. NO. 25
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`INDEX NO. 160914/2021
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`Proceedings
`issue of informed consent.
`In the documents that I received last night
`from the City in opposition, docket entry 19, paragraph
`25, the City indicates that the vaccine has been
`approved.
`That is incorrect.
`While indeed in August
`the FDA issued a rather confusing and convoluted
`emergency use authorization, the fact is the only
`vaccine -- although it's a Pfizer vaccine, the only
`Pfizer vaccine is called Comirnaty.
`And Comirnaty is
`not available in the United States.
`So it's somewhat
`disingenuous to suggest that the Pfizer vaccine, the
`EAU Comirnaty is available in the United States.
`It
`definitely is not.
`And that's likely because there is
`no liability protection.
`Comirnaty is available -- or will be
`available this month in Europe.
`But here in the United
`States vaccines are typically liability-free,
`particularly vaccines given to children.
`If you are
`injured by vaccines, you go to vaccine court where you
`sue the government.
`You don't sue the pharmaceutical
`company.
`So right off the bat, that is a big problem.
`And, you know, I could brief you on it, but the
`Comirnaty vaccine, which is the only FDA approved
`vaccine, is not available.
`So, therefore, this brings in to the
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`FILED: NEW YORK COUNTY CLERK 12/16/2021 09:59 AM
`NYSCEF DOC. NO. 25
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`emergency use authorizations for the Pfizer and Moderna
`vaccine that are available.
`Under the Food and Drug
`FDA and Cosmetic Act -- sorry, I will look that up.
`But it's under the Cosmetic Act, an emergency use
`authorized drug, whatever it is, and there are
`plenty -- anthrax vaccine was an emergency use drug,
`but under Federal Law Congress has preempted mandates
`of emergency use drugs.
`That's the bottom line.
`I think there is a case that's illustrative
`on this point.
`It was the District Court for D.C., and
`it was a 2000 case involving vaccines mandated,
`emergency use authorized anthrax vaccines mandated on
`the military.
`And the Court clearly indicated that you
`cannot mandate an unapproved off label vaccine.
`I
`believe, also, although I can't keep up with all the
`orders striking down all the mandates, but I do believe
`a Florida court had struck down the Biden mandate on
`soldiers.
`That would be in line with the case that I
`talked about.
`Secondly, under the state law, in December of
`2020, a couple weeks after the emergency use vaccines
`became available in New York, the legislature under the
`novel coronavirus legislation specifically did not
`mandate emergency use vaccinations, and the only
`authority that the legislature had given to the Health
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`FILED: NEW YORK COUNTY CLERK 12/16/2021 09:59 AM
`NYSCEF DOC. NO. 25
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`INDEX NO. 160914/2021
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`Proceedings
`Department, or in this case the City, was to do contact
`tracing.
`There is absolutely no mandate for masks,
`there is no mandate for PCR testing, and there is no
`mandate for the vaccine allowed under the novel
`coronavirus legislation, and the reason being Congress
`preempted it under the Cosmetic Act.
`Period.
`Now, if Comirnaty was available, you know,
`that might be a horse of a different color, but it's
`not.
`And I am not even sure if it's even being
`distributed.
`So I draw the Court's attention to the
`affirmation, paragraph 25, which boldly declares the
`Pfizer vaccine is authorized.
`So now we have the novel
`coronavirus legislation.
`I explained to you it only
`allows for contact tracing; nothing else.
`Public
`And then we move to the statute.
`Health Law 206(1)(l) specifically prohibits an adult
`And
`mandate.
`Now, there is an exception for children.
`that issue has been exhaustively litigated in the 2nd
`Department.
`We have the C.F. case, which respondents
`-- the respondents referenced in their opposition.
`And
`several other cases.
`And so there is a massive
`difference between a childhood vaccine that if you are
`injured from that you get to go to court and you -- you
`get to go to vaccine court and get compensation.
`Currently right now under the emergency use
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`FILED: NEW YORK COUNTY CLERK 12/16/2021 09:59 AM
`NYSCEF DOC. NO. 25
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`INDEX NO. 160914/2021
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`Proceedings
`But, very specifically, this
`you can't do that.
`statute clearly prohibits an adult vaccination mandate.
`And I would suggest, or I would draw the Court's
`attention to a recent Fifth Circuit Decision in BST
`Holdings versus OSHA that shot down the Biden mandate.
`And I think the Court's language in BST is highly
`relevant here because the Mayor is doing exactly what
`the President had tried to do.
`They are trying to take
`a public health mandate that involves fundamental
`decision-making about one's bodily autonomy and they
`are trying to bypass legislative determination and
`decision-making and convert this public health mandate
`into an employment mandate.
`And that is exactly what
`the Fifth Circuit reviewed in BST.
`In addition to that, the Fifth Circuit talked
`about how over-inclusive -- how overbroad and at the
`same time under-inclusive this mandate is for the NYPD.
`Specifically, it's overbroad because it takes no
`account of natural immunity.
`Now, I want to be clear.
`I am not -- this is not a battle of the experts.
`Half
`of that opposition that I got last night is praising
`the glories of the vaccines.
`I am not at all
`This
`challenging safety and efficacy of the vaccines.
`is a purely legal argument; preemption, separation of
`power, and statutory construction, which brings me to
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`FILED: NEW YORK COUNTY CLERK 12/16/2021 09:59 AM
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`my next point.
`In the City's opposition they spend quite a
`bit of time talking about the union cases that have
`been brought and reasonable accomodation.
`I could
`simply tell you this case is not that.
`This is not a
`PERB issue.
`It's not a collective bargaining issue.
`And the reason is you cannot contract for a mandate
`that is fundamentally illegal.
`You cannot negotiate a
`contract term that imposes an illegal mandate.
`And,
`again, starting at the top, Food and Cosmetic Act,
`novel coronavirus legislation, Public Health Law 206.
`So, although I respect what the unions are
`trying to do, and they may ultimately prevail, but
`without a temporary restraining order which I am asking
`you for here on the basis of statutory construction,
`not bargaining, okay, I think it's so important to make
`that decision.
`Those cases could take years to be
`resolved because of the inability to really obtain a
`TRO in a collective bargaining, unlike this case where
`there are clear statutory problems, constitutional
`problems, preemption, and of course separation of
`powers, which brings us to the Mayor.
`The Mayor has absolutely no authority to --
`nor does he have any authority to order it or to direct
`subordinates to direct the Police Commissioner or the
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`FILED: NEW YORK COUNTY CLERK 12/16/2021 09:59 AM
`NYSCEF DOC. NO. 25
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`INDEX NO. 160914/2021
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`Now, an important distinction here
`Health Department.
`might be with the Board of Health.
`If this Court is
`familiar with Garcia versus City of New York, it's a
`very interesting case.
`In the State Supreme Court that
`involved a flu mandate that was added to the childhood
`schedule.
`And the Court struck that down as -- as --
`it was violating the separation of powers.
`The 1st
`Department upheld that, but on different grounds,
`finding it was ultra vires.
`The Board of Ed did have the authority, but
`in this particular instance it had been overturned.
`However, the Court of Appeals, you know, reversed and
`said that the Board of Health does have the authority.
`But, again, I emphasize, that flu shot was for children
`and Public Health Law excludes adult mandates.
`It does
`carve-out school-related vaccines.
`So I think Garcia
`is illustrative here, and Garcia absolutely explained
`Public Health Law and the difference between the adult
`mandate.
`
`Since you have segued into the
`THE COURT:
`authority, or lack of authority of the Board of Health,
`what is it --
`Yes?
`MS. FINN:
`-- what is it -- this might be a
`THE COURT:
`question perhaps directed to the Corporation Counsel
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`FILED: NEW YORK COUNTY CLERK 12/16/2021 09:59 AM
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`Proceedings
`when they are at the podium, but under what authority
`did the Department of Health, and of course you would
`say they had no authority, to issue the mandate that
`they issued?
`They don't.
`MS. FINN:
`What authority -- so let me
`THE COURT:
`rephrase the question for you.
`What authority would they have needed to
`issue the mandate that they issued?
`MS. FINN:
`Okay, but it applied to children
`
`on --
`
`Adults only.
`THE COURT:
`It's precluded.
`There is none.
`MS. FINN:
`Well, can it be argued that the
`THE COURT:
`Commissioner has the authority under circumstances, and
`of course they would argue this is one of those
`circumstances, that the Commissioner could, in fact,
`issue an emergency mandate such as we have here, but
`then it would have to be brought before the Board
`within five days for it to continue?
`MS. FINN:
`No, it could not.
`THE COURT:
`Could not.
`So you say -- your
`position is that the -- that the Commissioner of the
`Health and Mental Hygiene Service the Department of
`Health has no authority under any circumstances to
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`FILED: NEW YORK COUNTY CLERK 12/16/2021 09:59 AM
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`direct adults to be vaccinated?
`MS. FINN:
`No, and the point I was making is
`in Garcia you had a different situation.
`The Court of
`Appeals found that the Board of Health does have the
`authority to regulate childhood vaccines, but there is
`no corresponding authority.
`Moreover, even if the Board of Health was to
`do it, there is procedural rules.
`There has to be a
`notice.
`There has to be a hearing and there has to be
`a vote.
`
`And the hearing
`
`That's right.
`THE COURT:
`and vote would be by whom?
`MS. FINN:
`The Board of Health.
`THE COURT:
`Okay.
`MS. FINN:
`So --
`THE COURT:
`Was that done in this case?
`MS. FINN:
`Pardon me?
`THE COURT:
`Was that done in this case?
`MS. FINN:
`No.
`My question may be
`THE COURT:
`Okay.
`rhetorical, but I just want to confirm my understanding
`of the facts.
`But
`No, it's a procedural issue.
`MS. FINN:
`let me explain to your Honor why the Mayor is doing
`this and not the Board of Health.
`Because the law is
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`very --
`
`The Board of
`Wait a minute.
`THE COURT:
`Health issued -- didn't the Board of Health also issue
`a mandate?
`No.
`MS. FINN:
`It was just the --
`THE COURT:
`Okay.
`Why is the Mayor tackling
`MS. FINN:
`this beast instead of the Board of Health?
`THE COURT:
`So why is the Board of Health --
`why is the Commissioner of Health and Mental Hygiene in
`this case?
`Pardon?
`MS. FINN:
`Why did you sue the Commissioner
`THE COURT:
`of Health and Mental Hygiene?
`MS. FINN:
`Because they reissued a series of
`orders that lack any legislative underpinning.
`And
`they're a necessary party.
`We had to sue them.
`I
`would have preferred to leave them out, but they are
`in.
`
`But the bottom line is, the Board of Health
`is -- let's say even if the Board of Health wanted to
`try and do this, it is possible that if the Board of
`Health determined that a particular officer was a
`threat, and they wanted to either impose a physical
`restraint such as a mask mandate or they demanded they
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`FILED: NEW YORK COUNTY CLERK 12/16/2021 09:59 AM
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`14
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`Proceedings
`get tested every week, or the dreaded emergency use
`vaccine, they would have to petition a magistrate under
`Public Health Law 2120, and they would have to
`demonstrate two important things; they would have to
`demonstrate that the person being restrained or subject
`to a judicial order of quarentine, that person would
`actually have to be infected or suspected of infection.
`My client has natural immunity.
`He tested
`He has already had COVID.
`So you can't make
`positive.
`that.
`Then we get to the second part; the least
`restrictive means.
`Your Honor, I respectfully say -- I
`do not diminish the totality of this COVID nightmare.
`It has affected everybody.
`I mean, me personally.
`Everybody in this room is struggling.
`But when you
`look at this opposition document, everything is
`hysterical.
`It's all exaggerated.
`It's one hundred
`percent increase.
`Well, what does that mean?
`We went
`from two people to four people?
`The fact is, the
`government, the City is trying to, you know, drag us
`into this battle of the experts where, you know, the
`Courts are differential to a public health authority --
`THE COURT:
`Well, we don't get there, do we,
`Ms. Finn, until we first establish that the Mayor had
`authority to issue this order to begin with.
`MS. FINN:
`I think, your Honor, even if the
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`FILED: NEW YORK COUNTY CLERK 12/16/2021 09:59 AM
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`Mayor -- the Mayor cited an Executive Law authority,
`but if you look at the Executive Law, Section 22-A,
`it's a -- it defines disaster, and that definition
`includes an epidemic.
`But although the City pointed
`out the C.F. case, which was a completely different
`case; you had a nuisance, it was declared by the Board
`of Health that was procedurally appropriate, nothing
`like what is going on here, the 2nd Department held in
`C.F. that it was temporary, it had been over by the
`time it got to the court, and the issue was whether or
`not it was arbitrary and capricious.
`It's not.
`What I am trying to point out here is that
`the Executive Law, in order to enact an emergency
`regulation, you have to have an emergency.
`The CDC --
`this is not -- this is not Patricia Finn or a couple
`people that are protesting against vaccines.
`The CDC
`is our authority.
`I didn't bring in a scientist from
`Germany or someone else.
`I am asking you, your Honor,
`to take a look at what CDC is saying.
`Aside from the
`fact that they are all over the place scaring everyone
`to death, unaware of the potential of the variants -- I
`mean, everyone knows diseases have variants.
`How are
`they so shocked that an omicron variant, or that the
`delta variant -- is it reality?
`Is it really the
`number of cases?
`Sometimes, your Honor, you want
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`FILED: NEW YORK COUNTY CLERK 12/16/2021 09:59 AM
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`Currently children seem to have a prevalence of
`cases.
`COVID antibodies, and yet they experience zero -- few
`to none symptoms.
`Any children that have been injured
`tended to have comorbidities; overweight, other
`illnesses.
`I will set aside for a moment the total
`inability to even track COVID data -- COVID deaths.
`But the fact is that children, if they get COVID, they
`decrease the prevalence of the illness in the
`population.
`That's a good thing.
`Cases are a good
`thing.
`
`What we want to look at is infection fatality
`And according to the CDC we have a 98.7 percent
`rate.
`survival rate.
`And I would respectfully ask your Honor
`to give me a ruling as to whether or not a 98.7 percent
`survival rate rises to the level of an epidemic or
`disaster as defined in the Executive Law.
`I believe Judge Colon also in the I.R.O.A.R.
`case specifically went through what the Mayor has to do
`in order to declare an emergency.
`And she found that,
`you know, this ain't it.
`This is not it.
`So, your
`Honor, it's not case -- it's not the number of cases;
`it's infection fatality rate.
`THE COURT:
`Why are you limiting the criteria
`to fatalities?
`MS. FINN:
`
`Pardon me?
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`FILED: NEW YORK COUNTY CLERK 12/16/2021 09:59 AM
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`Why are you limiting the criteria
`THE COURT:
`Why can't serious illnesses or
`to just fatalities?
`hospitalizations constitute an emergency?
`MS. FINN:
`That is an excellent point, but
`prior to COVID-19 we already had a hospital shortage.
`The problem, what's going on in the -- there was
`insufficient healthcare workers, insufficient --
`THE COURT:
`I am just questioning the
`criteria that you are developing for what establishes
`an emergency.
`That is what I am asking you.
`MS. FINN:
`W.T. versus County of Rockland upheld by the 2nd
`Department a week --
`How could I make that
`THE COURT:
`determination without expert testimony as to what an
`emergency is?
`Well, your Honor, you could rely
`MS. FINN:
`on the statistics and the definition in the Executive
`Law.
`Judge Thorsen held that the minuscule number of
`measles cases did not, in his opinion, and that was
`based on government data -- it was actually based on
`data offered by the county -- that the number of cases
`did not rise to level of an epidemic.
`And that was
`appealed to the 2nd Department and it was upheld.
`it wasn't disturbed.
`And then a week later Judge
`
`In
`
`So
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`Knipel ruled in C.F. that that measles mandate was
`lawful.
`The point being, in Rockland County and in
`Brooklyn you have these concentrations of has Hasidic
`communities.
`And what was happening in these
`communities, they weren't intentionally spreading
`measles to a point having to be vaccinated.
`It wasn't
`an outbreak; it was an in-break.
`And so the Health Department went through
`appropriate procedures, Board of Health rules, they
`declared a nuisance and, you know, I personally -- I
`mean, I tried that case in Rockland, so I think I did a
`good job.
`But I think my counterparts in Brooklyn
`might have missed the mark slightly.
`So, your Honor, in summary, unless you have a
`question, you know, in addition to all this I would ask
`you to think about what the Court -- the 2nd Department
`did in C.F..
`The 2nd Department specifically upheld
`Jacobson versus Massachusetts.
`I know a lot of lawyers
`have argued it's bad law, it's old law, it should be
`updated, and that may be true, but this lawyer doesn't
`believe that.
`I think Jacobson is an excellent
`holding.
`And recently the Supreme Court, Justice
`Gorsuch in Candan v. Newsome and Doe v. Mills -- I am
`sorry, your Honor, it was Roman Catholic Archdiocese
`versus Cuomo and Justice Gorsuch said that if Jacobson
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`was to come in front of them today it would be upheld.
`Why would it be upheld?
`Because Jacobson, all he faced
`was a five dollar fine.
`He wasn't facing losing his
`job, a suffocating mask mandate, an invasive PCR test
`that could cause injury to the nasal cavity and the
`brain.
`All he had to do was pay five bucks.
`And I
`doubt that there's very few people that would pay five
`dollars to get out of one of these mandates.
`Jacobson foresaw the possibility of a vaccine
`mandate being a plain and palpable invasion of
`COVID
`fundamental rights, and it's here.
`This is it.
`is absolutely overblown.
`It's the infection fatality
`rate that matters, not the case rate.
`And that is true
`of many, many viruss.
`We are an ecosystem.
`People
`need exchange in order to develop immunity.
`But, again, I really do not want to get
`sucked into the science.
`Jacobson said a vaccine
`mandate had to be necessary, harm avoiding,
`proportional and nondiscriminatory.
`This mandate
`imposed by NYPD is none of those things.
`Jacobson said
`in order to -- the legislature, not the Executive, not
`the regulatory agencies, for the legislature to impose
`a mandate there must be grave danger.
`The Court -- I
`believe the language was "imperils society."
`There
`must be an epidemic, there must be an emergency, which
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`is how this ties into the statute, the Executive Law
`20.A.
`20.A defines a disaster as an epidemic.
`And the
`2nd Department upheld Judge Thorsen's determination
`that the rate of measles infection, which is higher
`than COVID now, did not rise to the level of an
`epidemic.
`
`So I am not asking you to rule on the science
`per say; I am asking you to rule on the legal
`definition, and particularly to rely on the 1905
`landmark vaccine refusal case, Jacobson versus
`Massachusetts.
`The Court held there was a duty for --
`the Supreme Court held there was a duty for this Court
`to adjudicate when a vaccine mandate is cruel -- not
`sure if I remember the language specifically, but it
`was -- it would be cruel to vaccinate people.
`And, you
`know, that is what is going on right now.
`May I just sum up thirty seconds?
`THE COURT:
`Absolutely.
`MS. FINN:
`So, your Honor, I will start at
`It's always a good place to start.
`Congress has under the Food and Drug and
`Cosmetic Act prohibits emergency use authorized drugs
`from being mandated.
`It's preempted that the Comirnaty
`vaccine is not available in the United States.
`And, by
`the way, we have two weeks before Mayor De Blasio is
`
`the top.
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`And
`replaced by Mayor Adams -- soon-to-be Mayor Adams.
`he's expressed relaxing these mandates.
`So I think a
`temporary restraining order is appropriate because
`think of the damage it's going to cause.
`Secondly, that statement about Comirnaty to
`the best of my knowledge is completely false.
`It's not
`available.
`It's only EAU.
`Second, in December of
`2020, when the EAU vaccines were already available the
`legislature did not mandate a vaccine.
`And they
`couldn't because they were preempted under the Food and
`Drug and Cosmetic Act.
`It's simple as heck.
`And then
`you got the statute 206(1)(l) which prohibits adult
`vaccines.
`You have the authority of Garcia versus City
`of New York for a resource on interpreting that
`statute.
`
`Finally, even if the Board of Health or the
`Governor, or the Mayor, or the Police Commissioner
`determined that an individual officer is a particular
`threat, Public Health Law 2120 requires an additional
`order of quarentine.
`I am sure this Court is well
`aware of cases of people that may be mentally ill, or
`someone who is sick that refuses to follow guidance.
`It is the burden of the local Health
`Department to petition the Court to establish that the
`person is infected or suspected of infection, and it is
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`the least restrictive means.
`They have not done that,
`and they cannot do it, which is why the Board of Health
`can't mandate a blanket mandate like they have.
`And
`that was reaffirmed in BST versus OSHA in the Fifth
`Circuit.
`And the Court was crystal clear; you cannot
`convert a public health mandate into an employment
`mandate particularly when the mandate is overbroad,
`does not include a potential for natural immunity which
`Federal Courts have recognized in the prisoner release
`cases that -- inmates that had already been infected
`and were let out, or were petitioning to be let out,
`they had no risk of reinfection because they had
`already gotten COVID and recovered.
`So I think it's clearly defined that this
`mandate, even if it was legal, is overbroad.
`It's also
`at the same time under-inclusive.
`What about the
`people being arrested?
`What about the mailman that's
`coming into the police department?
`Or the Fed-Ex guy
`or delivery guy, or whoever is there?
`The Court has
`struck down mandates for larger companies over one
`hundred as being both overbroad and under-inclusive.
`And we have the same thing here.
`These police officers
`are involved with people all over.
`And, you know, I take issue with this
`conclusion that eighty percent of the population is
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`And I will just
`I highly doubt that.
`vaccinated.
`leave it at that.
`But if they are, I would submit to
`your Honor that the majority of them acquiesced because
`they were afraid of losing their jobs.
`So I ask you,
`your Honor, this does not rise to the level of a
`disaster that imperils society.
`It's bad, I get it,
`but it's not there.
`Thank you.
`(Brief pause.)
`THE COURT:
`Ms. Fowlkes, you care to respond?
`MS. FOWLKES:
`Yes, your Honor.
`Just one
`
`moment.
`
`(Brief pause.)
`Your Honor, we have addressed
`MS. FOWLKES:
`these arguments as presented in the petition in our
`opposition papers that we submitted last night.
`So to
`the extent that you have any specific questions, I'd be
`happy to answer them after I give my formal
`presentation.
`Now, specifically here for the purposes of
`today, this issue regarding the vaccine mandate and
`specifically regarding granting a preliminary
`injunction on the vaccine mandate, this has been
`litigated over and over again.
`It has been litigated
`repeatedly and each time the courts here in New York
`and the Second Circuit have refused to grant a
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`preliminary injunction.
`And this Court's decision
`today should be no different.
`Now, specifically here for the purposes of
`this preliminary injunction, opposing counsel has not
`addressed the existence of irreparable harm.
`Now,
`first, this case was brought over a month after the
`Commissioner's order, over a month after the
`Commissioner's order was distributed to municipal
`employees and over a month after Mr. Marciano
`presumably had notice on the order.
`So this delay
`contradicts any irreparable harm --
`THE COURT:
`Sorry.
`Sorry for interrupting.
`Has Mr. Marciano been put on leave without
`pay status?
`Your Honor, all that we are
`MS. FOWLKES:
`aware of right now is that Mr. Marciano has applied for
`a reasonable accomodation, and is awaiting a decision
`on that.
`So since he applied for it he is not yet on
`leave without pay status.
`THE COURT:
`He is not yet on --
`He is not yet
`MS. F
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