Plaintiffs' letter responding to Governor's concession (Feb. 2, 2021) — Agudath Israel v. Cuomo (2d Cir.)

Record facts

U.S. District Court for the Eastern District of New York · No. 1:20-cv-04834-KAM-RML · Doc. 32 · 2021-02-02 · Docket on CourtListener

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Troutman Pepper Hamilton Sanders LLP 
875 Third Avenue 
New York, New York  10022 
troutman.com 
Avi Schick 
avi.schick@troutman.com 
February 2, 2021 
VIA ECF 
The Honorable Kiyo A. Matsumoto 
United States District Court for the Eastern District of New York  
225 Cadman Plaza East 
Brooklyn, NY  11201 
Re: 
Agudath Israel of America, et al. v. Andrew M. Cuomo, No. 1:20-cv-4834 (E.D.N.Y.)
Dear Judge Matsumoto: 
We have reviewed a copy of the letter filed by Defendant earlier today.  Dkt. 31.  At bottom, 
Defendant concedes that the restrictions on houses of worship cannot satisfy strict scrutiny, which 
is what Plaintiffs have contended all along.  It is unfortunate that Plaintiffs had to endure four 
months of hardship until Defendant was willing to concede this point.   
Plaintiffs welcome the entry of an Order enjoining Executive Order 202.68’s 25% and 33% 
capacity limitations on houses of worship.  And upon the entry of such an Order, Plaintiffs do not 
oppose the cancellation of the February 8, 2021 preliminary injunction hearing.  Plaintiffs do not 
understand Defendant’s suggestion that “[t]he injunction would remain in force for as long as 
Executive Order 202.68, as extended, remains in effect.”  Dkt. 31 at 1.  The better path would be 
for the preliminary injunctions in place to convert to permanent injunctions after 90 or 120 days.     
Indeed, just last week, on Thursday, January 27, 2021, Defendant once again renewed and 
extended Executive Order 202.68, including all of its restrictions on houses of worship, without 
any modification.  See N.Y. Exec. Order 202.92.  That includes the 10- and 25-person restrictions 
already enjoined by this Court (and others) and the 25% and 33% limitations on houses of worship 
that Defendant now admits should be enjoined. 
Defendant’s acceptance of the preliminary injunction against the percentage capacity 
limitations that he had fought so vigorously (in this Court and before the Second Circuit) came on 
the heels of Plaintiffs’ request for the testimony of Health Department witnesses at the February 8 
hearing.  That comes as no surprise.     
Earlier this week, the New York Times reported Defendant’s admission that “When I say 
‘experts’ in air quotes, it sounds like I’m saying I don’t really trust the experts.  Because I don’t.  
Because I don’t.”  9 Top N.Y. Health Officials Have Quit as Cuomo Scorns Expertise (Defendant 
Case 1:20-cv-04834-KAM-RML   Document 32   Filed 02/02/21   Page 1 of 2 PageID #: 835

Hon. Kiyo A. Matsumoto 
February 2, 2021 
Page 2
“referring to scientific expertise at all levels of government during the pandemic”).  According to 
that report, “state health officials said they often found out about major changes in pandemic policy 
only after Mr. Cuomo announced them at news conferences — and then asked them to match their 
health guidance to the announcements.”   As it relates to this case, the report added that “officials 
said the State Health Department was not deeply involved in final decisions that have included 
allowing public events and mandating business closures based on color-coded ‘microclusters.’”   
For these reasons, the Court should enter the unopposed preliminary injunction enjoining 
Executive Order 202.68’s 25% and 33% capacity limits on houses of worship, and the preliminary 
injunctions should convert to permanent injunctions after 90 or 120 days.      
Respectfully, 
Avi Schick 
Cc: Counsel for Defendant (via ECF) 
Case 1:20-cv-04834-KAM-RML   Document 32   Filed 02/02/21   Page 2 of 2 PageID #: 836

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