Governor's letter specifying preliminary injunction terms (Feb. 4, 2021) — Agudath Israel v. Cuomo (2d Cir., 2021-02-04)

Record facts

U.S. District Court for the Eastern District of New York · No. 1:20-cv-04834-KAM-RML · Doc. 34 · 2021-02-04 · Docket on CourtListener

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STATE OF NEW YORK 
OFFICE OF THE ATTORNEY GENERAL 
  LETITIA JAMES 
                                                         DIVISION OF STATE COUNSEL           
ATTORNEY GENERAL 
                                                        LITIGATION BUREAU 
 
 
28 LIBERTY STREET, NEW YORK, NY 10005 ● PHONE (212) 416-8610 ● WWW.AG.NY.GOV 
Writer’s Direct Dial: (212) 416-8661 
 
February 4, 2021 
Via ECF 
 
 
 
 
       
The Honorable Judge Kiyo A. Matsumoto 
United States Courthouse 
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 Governor Andrew M. Cuomo, Defendant in the above-referenced 
matter. This letter concerns (1) the Court’s January 26, 2021 Order, which directs the parties to 
submit witness lists, exhibits, and briefs in anticipation of a preliminary injunction hearing on 
Executive Order 202.68’s 25% and 33% capacity limits on houses of worship, currently scheduled 
for February 8, 2021; and (2) the Court’s February 2, 2021 Order, which found Defendant’s letter to 
be “ambiguous as to the terms of defendant’s consent to a preliminary injunction or permanent 
injunction.”  
 
In light of the rulings in this case by the U.S. Supreme Court and the Second Circuit, 
specifically, the finding that “both the fixed capacity and the percentage capacity limits on houses of 
worship” in the red and orange zones “are subject to strict scrutiny,” Agudath Israel of Am. v. Cuomo, 983 
F.3d 620, 632 (2d Cir. 2020), Defendant consents to the issuance of a preliminary injunction under 
the following specific terms: 
 The Preliminary Injunction shall apply to Defendant and any New York State officer, 
agent, servant, or employee who is responsible for enforcing Executive Order (“EO”) 
202.68 (collectively, “Enjoined Parties”); 
 
 The Preliminary Injunction shall enjoin the Enjoined Parties from enforcing the 25% 
capacity limits based on maximum indoor occupancy against any house of worship in New 
York State located in an area designated as a red zone under EO 202.68; 
 
 The Preliminary Injunction shall enjoin the Enjoined Parties from enforcing the 33% 
capacity limits based on maximum indoor occupancy against any house of worship in New 
York State located in an area designated as an orange zone under EO 202.68; 
 
 The Preliminary Injunction shall convert to a Permanent Injunction after 120 days from 
the date of the Preliminary Injunction Order the Court issues in this case unless EO 202.68 
is revised, within that 120-day period, so to remove houses of worship and the restrictions 
Case 1:20-cv-04834-KAM-RML   Document 34   Filed 02/04/21   Page 1 of 2 PageID #: 841

Hon. Kiyo A. Matsumoto 
February 4, 2021 
Page 2 of 2 
 
 
 
 
 
 
 
set forth therein.  In that case, the Preliminary Injunction will expire, by its own terms, on 
the date of such revision.   
 
 Except as set forth in the above-described Preliminary Injunction and Permanent 
Injunction, the Enjoined Parties shall not be limited in their ability to issue subsequent 
Executive Orders, regulations, guidelines, rules, or any other directives concerning the 
COVID-19 emergency, houses of worship, or any other matters. 
  
In view of Defendant’s detailed specification of his consent to the scope of the Preliminary 
Injunction, Defendant respectfully submits that an evidentiary hearing is unnecessary and requests 
that the Court reconsider its decision in that regard.   
 
Plaintiffs and Defendant are presently negotiating the terms of a proposed Joint Preliminary 
Injunction Order, including specific findings justifying such an injunction, in accordance with the 
Court’s February 2, 2021 Order. To the extent that Plaintiffs and Defendant may disagree over the 
precise language of any term of an injunction, Defendant respectfully submits that such 
disagreement would be a legal issue that could be resolved through specific briefing and argument of 
counsel, not an evidentiary hearing. Defendant suggests that the Court permit Plaintiffs and 
Defendant to set forth in the Joint Preliminary Injunction Order any areas of disagreement that may 
necessitate further legal argument. Counsel for Defendant is available at the Court’s convenience if it 
determines that a conference may be helpful on any of the foregoing. 
 
Thank you for Your Honor’s consideration of this matter. 
 
Respectfully submitted, 
 
 
 
 
 
 
______/S/__________ 
 
 
 
 
 
 
Todd A. Spiegelman 
Assistant Attorney General  
Todd.Spiegelman@ag.ny.gov 
cc: All Counsel (via ECF) 
 
 
 
 
Case 1:20-cv-04834-KAM-RML   Document 34   Filed 02/04/21   Page 2 of 2 PageID #: 842

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