Governor's pre-motion letter (motion to dismiss, Nov. 3, 2020) — Agudath Israel v. Cuomo (2d Cir.)

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U.S. District Court for the Eastern District of New York · No. 1:20-cv-04834-KAM-RML · Doc. 18 · 2020-11-03 · Docket on CourtListener

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28 LIBERTY STREET, NEW YORK, NY 10005 ● PHONE (212) 416-8661 ● WWW.AG.NY.GOV 
                                                                                                                     
                                                                                                                                                    STATE OF NEW YORK 
                                                                                                                                    OFFICE OF THE ATTORNEY GENERAL 
  LETITIA JAMES 
                                     DIVISION OF STATE COUNSEL        
ATTORNEY GENERAL                                                               NOVEMBER 3, 2020 
                                             LITIGATION BUREAU
Via ECF 
 
 
 
 
        
The Honorable Judge Kiyo A. Matsumoto 
United States District Court for the Eastern District of New York 
225 Cadman Plaza East 
Brooklyn, New York 11201 
 
Re: Agudath Israel of America, et al. v. Cuomo, No. 20-cv-04834 (E.D.N.Y.)(KAM)(RML) 
 
Dear Judge Matsumoto: 
 
This Office represents Defendant Andrew M. Cuomo in his official capacity as the 
Governor of the State of New York (“Governor Cuomo”) in the above-referenced action. I write 
pursuant to Your Honor’s Individual Rule III(B)(1) to outline the arguments that Governor Cuomo 
intends to raise in his motion to dismiss Plaintiffs’ Complaint (ECF No. 1, “Compl.”) and to request 
a discovery stay pending a decision on his motion. We further request that the Court hold a pre-
motion conference and set a briefing schedule after the Second Circuit decides Plaintiffs’ motion for 
an injunction pending their appeal from this Court’s denial of their motion for a preliminary 
injunction. The Second Circuit heard Plaintiffs’ motion today, November 3, 2020.1  
Factual Background and Allegations 
This case arises in the context of COVID-19, a “very lethal pandemic” that may result in 
“death or permanent injuries.” Transcript of Preliminary Injunction Hearing, October 9, 2020 
(“Tr.”) at 65-66 (attached hereto as Ex. A). As of November 2, 2020, over 25,800 New Yorkers have 
died from this novel coronavirus, with over 16,000 fatalities in New York City alone.2  
To counter the initial flood of COVID-19 cases in New York during March and April of this 
year, Governor Cuomo took swift, drastic action, including the issuance of Executive Orders 
(“EOs”) cancelling non-essential gatherings and temporarily closing non-essential businesses. E.g., 
EO 202.8, 202.10. These orders were critical measures that have saved untold thousands of lives. See 
Geller v. De Blasio, 2020 WL 2520711, at *4 (S.D.N.Y. May 18, 2020) (“preventing in-person 
gatherings is crucial to any strategy of containment.”). As New York successfully flattened the curve 
during the late spring and summer, the rate that COVID-19 tests showed positive results decreased 
significantly from a peak of around 48% in early April to a low of 0.7% in mid-August.3 
But in early autumn the virus surged again, and though the positivity rate remained low at 
1.2% statewide, the Governor announced that the rate in five New York “hotspots” had spiked to 
                                                 
1 See ECF No. 17. The Second Circuit is hearing the motion on the same schedule as a similar motion in the appeal from 
the denial of a preliminary injunction against Executive Order 202.68 in Roman Catholic Diocese of Brooklyn, New York v. 
Cuomo, 20-cv-4844 (E.D.N.Y.) (“Diocese”). Therein, Judge Garaufis will hold a pre-motion conference on the Governor’s 
dismissal motion after the Second Circuit rules on the motion before it for an injunction pending appeal. Diocese, 20-cv-
4844, Minute Entry, October 30, 2020. 
2 See Fatalities, N.Y. State Dep’t of Health, available at https://on.ny.gov/2MxLRsJ. 
3 https://forward.ny.gov/percentage-positive-results-region-dashboard. 
Case 1:20-cv-04834-KAM-RML   Document 18   Filed 11/03/20   Page 1 of 3 PageID #: 641

The Honorable Judge Kiyo A. Matsumoto 
 
Page 2 of 3 
November 3, 2020 
 
 
28 LIBERTY STREET, NEW YORK, NY  10005 • PHONE (212) 416-8661 • FAX (212) 416-6075 (NOT FOR SERVICE OF PAPERS) 
5.5%. ECF No. 2-9, Decl. of Pls. Counsel, Avi Schick, Ex. F at 9. To prevent further spread, the 
Governor issued EO 202.68 (“Order”) creating containment zones around the hotspots. The Order 
establishes central “red zones,” where non-essential gatherings are cancelled and schools and non-
essential businesses may not operate in-person. EO 202.68. However, the Order permits red zone 
houses of worship to remain open with a capacity of 25% maximum occupancy or 10 people, 
whichever is fewer. Similarly, in orange zones, non-essential gatherings, schools, and certain non-
essential businesses are subject to more severe restrictions than houses of worship. Precautionary 
“yellow zones” are subject to lesser restrictions than red and orange zones. The Order is temporary 
and the zones are re-evaluated based on changes in the underlying data. Id.; Schick Decl. Ex. F at 6. 
Plaintiffs are an Orthodox Jewish group and three synagogues in Brooklyn and Queens and 
their leaders. When the Complaint was filed, two synagogues were located in red zones and one was 
in an orange zone. Compl. ¶¶ 13-15; Schick Decl. Ex. J at 10-12. (Recently, the Queens zones were 
downgraded to yellow. See infra). Plaintiffs claim that the Order violates the Free Exercise Clause of 
the United States Constitution and seek a declaratory judgment preventing its enforcement. 
On October 9, 2020, this Court denied Plaintiffs’ preliminary injunction motion, holding 
that the Order was neutral, generally applicable, and did not burden Plaintiffs’ free exercise rights. 
Tr. at 57. The Complaint should be dismissed for the same reason, and because it is moot. 
The Complaint Is Moot 
 
“[T]he mootness doctrine ensures that the litigant’s interest in the outcome continues 
throughout the life of the lawsuit.” Cook v. Colgate Univ., 992 F.2d 17, 19 (2d Cir. 1993). “In order to 
satisfy the case-or-controversy requirement, a party must, at all stages of the litigation, have an actual 
injury which is likely to be redressed by a favorable judicial decision.” United States v. Mercurris, 192 
F.3d 290, 293 (2d Cir. 1999).  
 
The Order allegedly prevents Plaintiffs from worshipping “on Jewish holidays observed on 
October 9, 10, and 11, 2020.” Compl. ¶ 97; id. ¶¶ 1, 10, 105. Plaintiffs do not base their claim on any 
other holiday. Because those holidays have passed, enjoining the Order cannot redress Plaintiffs’ 
injuries. Nor does the Complaint implicate the exception to mootness for cases that are “capable of 
repetition, yet evading review.” Cook, 992 F.2d at 19. There is no “reasonable expectation” that 
Plaintiffs will be subject to the same restrictions again, id., because the Order is temporary and under 
constant reevaluation. Indeed, recent reductions in positivity rates led the Governor to downgrade 
the red and orange zones in Queens to yellow zones, thereby lifting the challenged restrictions on 
two of three synagogues that filed this action.4  
The Complaint Fails to State a Free Exercise Claim 
Plaintiffs fail to state a claim under the deferential standard of Jacobson v. Commonwealth of 
Massachusetts, 197 U.S. 11 (1905). See Tr. at 47-48 (finding Jacobson applies). There, the Supreme Court 
held that “a community has the right to protect itself against an epidemic of disease,” and in such 
                                                 
4 See Governor’s Press Release (https://www.governor.ny.gov/news/video-audio-photos-rush-transcript-governor-
cuomo-details-covid-19-micro-cluster-metrics) wherein the Governor announced on October 22, 2020 a “micro-cluster” 
initiative even more narrowly focused than the initiative originally set forth in the Order. The data underlying the micro-
cluster initiative showed marked improvement in the positivity rates in certain of the red, orange, and yellow zones. 
Case 1:20-cv-04834-KAM-RML   Document 18   Filed 11/03/20   Page 2 of 3 PageID #: 642

The Honorable Judge Kiyo A. Matsumoto 
 
Page 3 of 3 
November 3, 2020 
 
 
28 LIBERTY STREET, NEW YORK, NY  10005 • PHONE (212) 416-8661 • FAX (212) 416-6075 (NOT FOR SERVICE OF PAPERS) 
times judicial scrutiny is reserved for a measure that “has no real or substantial relation to” the 
object of protecting the public health or is “beyond all question, a plain, palpable invasion of rights 
secured by the fundamental law.” 197 U.S. at 27, 31. Applying Jacobson, Chief Justice Roberts 
recently found that when, during a pandemic, state officials “act in areas fraught with medical and 
scientific uncertainties, their latitude must be especially broad.” S. Bay United Pentecostal Church v. 
Newsom, 140 S. Ct. 1613 (2020) (Roberts, C.J., concurring) (upholding California order limiting 
occupancy at houses of worship). 
Here, Plaintiffs fail to plausibly allege that the Order has no real or substantial relation to 
protecting the public health. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“reviewing court [must] 
draw on its judicial experience and common sense” to determine plausibility). This Court and others 
have endorsed the logical proposition that worship services risk spreading COVID-19 by placing 
many people close together indoors where invisible virus droplets linger in the air. Tr. at 63-64 
(quoting Elim Romanian Pentecostal Church v. Pritzer, 962 F.3d 341, 346 (7th Cir. 2020)). Indeed, 
Plaintiffs admit that their sanctuaries hold up to 400 people, that group prayer is required, and that 
each congregant reads aloud. Compl. ¶¶ 57, 64-67. The Order plainly safeguards public health by 
reducing the risk of viral spread at Plaintiffs’ synagogues.  
Moreover, Plaintiffs cannot establish a palpable invasion of rights secured by fundamental 
law because the Order does not target religion. A law that is neutral and generally applicable survives 
free exercise review if it is rationally related to a legitimate state interest. Employment Div., Dep’t of 
Human Resources of Oregon v. Smith, 494 U.S. 872, 881 (1990); Tr. at 50-57. Since the S. Bay decision, 
nearly every court that considered “free exercise challenges to COVID-related restrictions on 
religious gatherings” has applied a “rational basis analysis.” Diocese, 20-cv-4844 (E.D.N.Y.), ECF No. 
32 (“Diocese Op.”) at 14-16 (collecting cases) (denying free exercise challenge to EO 202.68). This 
Court did so as well because “[t]here’s nothing on the face of the order’s text that singles out 
religious rituals per se, or even religion.” Indeed, it “accord[s] more lenient restrictions” to houses of 
worship “than other venues.” Tr. at 59-60; see also Diocese Op. at 19 (applying rational basis scrutiny to 
limitations on worship services “because they are gatherings, not because they are religious”). And 
this Court and Judge Garaufis rightly held that the Order survived rational basis review because it is 
related to the State’s legitimate interest in protecting the public from a deadly and highly-contagious 
virus. Tr. at 50, 65-66; Diocese Op. at 23. Because the Order rationally mitigates the ongoing crisis, 
Plaintiffs’ challenge fails. 
The Court Should Stay Discovery 
Discovery should be stayed pending resolution of the Governor’s motion because he has 
“made a strong showing that [Plaintiffs’] claim is unmeritorious,” and Plaintiffs will not be 
prejudiced by a relatively short stay pending a potentially dispositive decision. See Int’l Bhd. of 
Teamsters Local 456 v. Quest Diagnostics Inc., 2011 WL 13377389, at *3 (E.D.N.Y. Oct. 4, 2011) (citing 
Transunion Corp. v. PepsiCo, 811 F.2d 127, 130 (2d Cir. 1987)) (setting forth “good cause” standard for 
discovery stays). Plaintiffs have no basis to burden the State with discovery in this moot case.  
 
We thank the Court for its time and consideration. 
 
     Respectfully submitted, 
     ________/S/____________ 
cc:  
All counsel of record (via ECF)                Todd A. Spiegelman 
Case 1:20-cv-04834-KAM-RML   Document 18   Filed 11/03/20   Page 3 of 3 PageID #: 643

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