Governor's letter seeking to exclude witnesses (Feb. 5, 2021) — Agudath Israel v. Cuomo (2d Cir.)

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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 5, 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. I write in response to Plaintiffs’ request to call Howard A. Zucker, M.D., J.D. and Bryon 
Backenson, as witnesses at the preliminary injunction hearing currently scheduled for February 8, 
2021. The testimony of Dr. Zucker, Commissioner of the New York State Department of Health 
(“DOH”), and Mr. Backenson, Deputy Director of DOH’s Bureau of Communicable Disease 
Control, should be excluded because it is irrelevant to the remaining issues in dispute in this case.   
 
Plaintiffs propose that Commissioner Zucker and Mr. Backenson testify regarding the 
“justification for the 25% and 33% capacity limits imposed on houses of worship set forth in 
Executive Order No. 202.68,” in an effort to show that those limits are not narrowly tailored to 
serve a compelling government interest. ECF No. 36. However, the Defendant has made clear that 
he does not dispute the issue of whether the 25% and 33% capacity limits as developed for EO 
202.68 are narrowly tailored. In fact, Defendant has agreed  to the entry of an injunction against 
enforcement of those limits. 
 
Under Federal Rules of Evidence 401 and 402, evidence that is not “of consequence in 
determining the action” is irrelevant and inadmissible. The Court has directed the parties to inform 
it “of the status of their good faith negotiations” over the proposed preliminary injunction order. 
Minute Entry, February 4, 2021. The only remaining issue in dispute concerns the circumstances 
regarding when the agreed upon preliminary injunction should expire—purely a legal matter. The 
testimony of Commissioner Zucker and Mr. Backenson on the public health rationale for the 25% 
and 33% capacity limits is not relevant to this issue or the preliminary injunction. Their testimony 
should be excluded under Fed. R. Evid. 401 and 402 as a matter of law, and as a matter of judicial 
economy.  
 
Defendant respectfully requests that the Court not require Commissioner Zucker and Mr. 
Backenson to testify at the upcoming preliminary injunction hearing. 
 
 

Hon. Kiyo A. Matsumoto 
February 5, 2021 
Page 2 of 2 
 
 
 
 
 
 
 
 
 
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)

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