STATE OF NEW YORK

SUPREME COURT : COUNTY OF ERIE

____________________________________________
MARIA HUNTER and WILLARD HUNTER,
on behalf of their minor children N.H. and C.H.,

Petitioners, VERIFIED PETITION

For Judgment Pursuant to Article 78 of the CPLR, Index No.

v.

LANCASTER CENTRAL SCHOOL DISTRICT,

Respondent.
____________________________________________

Petitioners, for their Verified Petition against Respondents LANCASTER

CENTRAL SCHOOL DISTRICT (“Respondent”), by and through their

undersigned counsel, hereby respectfully allege as follows:

NATURE OF ACTION

1. This is a special proceeding commenced under Article 78 of the

CPLR, wherein Petitioners are seeking to enjoin Respondent from enforcing its

arbitrary and capricious determination to require Petitioners N.H. and C.H. to wear

masks in school despite their qualification for a medical exemption under State

guidance.

PARTIES

2. At all times relevant hereto, Petitioner MARIA HUNTER (“Maria”)

was and is a resident of the County of Erie, State of New York.

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HOGANWILLIG
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 3. At all times relevant hereto, Petitioner WILLARD HUNTER

(“Willard”) was and is a resident of the County of Erie, State of New York.

4. At all times relevant hereto, Petitioner N.H. (“N.H.”) was and is a

minor child and a resident of the County of Erie, State of New York.

5. At all times relevant hereto, Petitioner C.H. (“C.H.”) was and is a

minor child and a resident of the County of Erie, State of New York.

6. Petitioners WILLARD HUNTER and MARIA HUNTER are the

parents of Petitioners N.H. and C.H.

7. At all times relevant hereto, Respondent LANCASTER CENTRAL

SCHOOL DISTRICT (“LCSD”) was and is a school district with a principal office

located at 177 Central Ave, Lancaster, New York 14086.

JURISDICTION AND VENUE

8. This Court has jurisdiction over this special proceeding under and

pursuant to CPLR § 7804, and the common law of the State of New York.

9. Erie County is a proper venue for this proceeding under CPLR §§

506(b) and 7804(b) because it is a county within the judicial district where

Respondent made the determination complained of, where the material events

otherwise took place, and where the principal office of Respondent is located.

10. Petitioners were and are not required to serve a Notice of Claim on

Respondents prior to the commencement of this special proceeding, as Petitioner

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seeks only equitable/injunctive relief at this time, and Respondent needs not

conduct any investigation of Petitioners’ claims set forth below.

BACKGROUND

11. Petitioners N.H. and C.H. are students at Lancaster Middle School,

and William Street School, respectively. Each of these schools are under the

jurisdiction of Respondent Lancaster Central School District. Both N.H. and C.H.

have been diagnosed with asthma.

12. Pursuant to the New York State Department of Health’s June 7, 2021

“Interim Guidance for In-Person Instruction at Pre-K to Grade 12 Schools During

the Covid-19 Public Health Emergency” (the “School Guidance,” annexed as

EXHIBIT A):

“Students who are unable to medically tolerate a mask, including students

where such mask would impair their physical health or mental health are not
subject to the required use of a mask.”

13. As set forth in greater detail below, N.H. and C.H. have demonstrated

that they are medically unable to tolerate wearing a mask under the conditions

imposed at their schools. They have each endured medical episodes at school as a

result of being mandated to wear a mask, and in C.H.’s case, required

hospitalization. Being forced to continue to wear a mask in school would impair

their physical and mental health.

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HOGANWILLIG
Attorneys at Law
2410 NORTH FOREST ROAD | SUITE 301 | AMHERST, NEW YORK 14068
Phone: 716.636.7600 | Toll Free: 800.636.5255 | Fax: 716.636.7606 | www.hoganwillig.com
 14. Despite N.H.’s and C.H.’s medical intolerance, the principals at their

schools have refused to permit N.H. and C.H. to invoke the medical exemption set

forth in the School Guidance absent a specific medical explanation from their

physician. Such a requirement is not present in the School Guidance, and therefore

it is within the purview of Respondent’s authority to permit the exemption.

15. N.H. and C.H. are unable to obtain these notes from their physicians,

not because they do not have legitimate medical conditions or need, but due to

their physicians’ office policies regarding notes for exemptions from COVID

regulations.

16. As a result of the foregoing, and despite the extreme and obvious risk

to their health, N.H. and C.H. are being forced to forego their education or

otherwise place themselves at risk of serious physical and mental harm, due to

their schools’ policies, that have no rational basis, whether medical, scientific, or

otherwise. Remote learning is no longer an option at their schools, and C.H., who

has an IEP, has lost the individual attention he needs for his education.

17. It is clear that the mask wearing requirement for N.H. and C.H., and

other students in general, is causing a greater risk than its benefit.

18. As many teachers have indicated, even if masks were useful for

protecting the children when used properly, it is common for children to attend

school with masks that are soiled, or become soiled throughout the day. Children

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struggle with wearing and removing masks properly over the long course of a

school day, a task that even adults struggle with over short periods of time.

Teachers are unable to focus their full attention on mask compliance and education

at the same time, and as a result children lose out both on the education they are

entitled to, or any minimal potential benefit the masks may offer.

19. Respondent’s refusal to permit N.H. and C.H. to return to school

without masks is arbitrary and capricious, and the Court should enjoin Respondent

from enforcing a mask requirement against N.H. and C.H.

STATEMENT OF FACTS

20. On June 7, 2021, N.H. and C.H. attended school. According to data

from the National Weather Service, the temperature in Buffalo reached a high of

84 degrees at 12:59pm, and the day averaged a relative humidity of 68%. A copy

of the preliminary data from the National Weather Service is annexed as

EXHIBIT B.

21. At or around 10:23 am, N.H. texted Maria from class, telling her

mother that she was feeling faint, like she was going to throw up, was having

difficulty breathing through her mask, and was having anxiety because of all the

foregoing.

22. At the time, N.H. was in a second-floor art room, where there were no

windows open, no fans running, and no air conditioning. The substitute teacher
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HOGANWILLIG
Attorneys at Law
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had his mask off, which he told the children he was permitted to do because he was

six feet away from them.

23. Maria told her daughter to go to the school nurse’s office, and that she

would come pick her up.

24. Maria thereafter called the school nurse to let her know that she was

coming to pick her daughter up. She then attempted to call the school

Superintendent to warn of the hazard the children were experiencing, but was

directed to call the school principal. Maria attempted to call the school principal,

but was then again re-directed to call the school nurse, thus obtaining no

substantive response.

25. Maria picked up N.H. from the Lancaster Middle School’s nurse’s

office, where N.H. was improving with her rescue medication.

26. Knowing that C.H. also suffers from asthma, Maria texted C.H.’s

teacher at William Street School to check on C.H. The teacher responded that

C.H. had seemed fine that morning, but was not in class at the time, and that he

would check on him after lunch.

27. At approximately 10:40 am, C.H. attended gym class, where students

were required to play football outside in the extreme heat and humidity, while still

wearing their masks. While playing football, C.H. began to feel unwell, but

continued to persevere through the class.

{H3024431.2} 6
HOGANWILLIG
Attorneys at Law
2410 NORTH FOREST ROAD | SUITE 301 | AMHERST, NEW YORK 14068
Phone: 716.636.7600 | Toll Free: 800.636.5255 | Fax: 716.636.7606 | www.hoganwillig.com
 28. After gym, C.H. went to lunch, where he continued to feel unwell but

was able to obtain some relief by removing his mask while eating and drinking.

29. After lunch, C.H. went to class, where he had to reapply his mask in

the sweltering classroom without air conditioning, open windows, or any fans other

than one for the teacher. Students were not permitted to have water in the

classroom and were only sparingly allowed to leave the classroom for a mask or

water break.

30. C.H.’s teacher asked C.H. how he was doing, realized that C.H. was

experiencing trouble breathing, and escorted him to the nurse’s office. However,

while he was being escorted, C.H. was continually instructed to put his mask back

on, despite his obvious struggle to breathe.

31. At approximately 1:15pm, Maria received a call from the nurse at

C.H.’s school, who reported that C.H. was wheezing, having difficulty breathing,

and had been treated once with his nebulizer. Maria indicated that she was on her

way to school to pick up C.H.

32. Minutes later, Maria received another call from the nurse, indicating

that C.H. was still struggling to breathe, that she was going to provide him with a

second nebulizer, but if that were unsuccessful, she would have to call 9-1-1.

Shortly thereafter, the nurse called again, indicating that she was calling 9-1-1.

{H3024431.2} 7
HOGANWILLIG
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2410 NORTH FOREST ROAD | SUITE 301 | AMHERST, NEW YORK 14068
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 33. Maria and Willard arrived at the school and C.H. was being treated

with a third nebulizer in the nurse’s office. Paramedics arrived and C.H. was

transported to Children’s Hospital, where he continued to struggle, but was treated

several more times with a nebulizer, and was provided Albuterol. He was

diagnosed with asthma exacerbation, eventually improved, and was discharged

home later that night at approximately 6:11pm.

34. On June 8, 2021, Maria and Willard kept C.H. and N.H. out of school

due to the traumatic experiences of the prior day, and the indications that nothing

had changed regarding the school’s masking policies.

35. On June 9, 2021, Maria called the principals of C.H. and N.H.’s

schools and requested that C.H. and N.H. be permitted to return to school without

masks, given their asthma, their obvious medical intolerance to wearing a mask

under the conditions in the school, and the risk that continued mask usage would

pose for their health.

36. The principal of Lancaster Middle School returned Maria’s call, and

indicated that N.H. could not return to school without a mask, unless she had a

doctor’s note specifically indicating that she needed a medical exemption from

mask usage and was able to work out a solution with the school nurse.

37. The principal of William Street School did not return Maria’s call.

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HOGANWILLIG
Attorneys at Law
2410 NORTH FOREST ROAD | SUITE 301 | AMHERST, NEW YORK 14068
Phone: 716.636.7600 | Toll Free: 800.636.5255 | Fax: 716.636.7606 | www.hoganwillig.com
 AS AND FOR A FIRST CAUSE OF ACTION
PURSUANT TO ARTICLE 78 OF THE CPLR

38. Petitioner repeats and re-alleges each and every allegation in the

preceding paragraphs of this Verified Petition, as if fully set forth herein.

39. Pursuant to the School Guidance, “Students who are unable to

medically tolerate a mask, including students where such mask would impair their

physical health or mental health are not subject to the required use of a mask.”

40. C.H. and N.H. are unable to medically tolerate a mask.

41. Being forced to continue to wear a mask in school would impair the

physical and mental health of C.H. and N.H.

42. Respondent is aware that C.H. and N.H. are unable to medically

tolerate a mask.

43. Respondent is aware that being forced to continue to wear a mask in

school would impair the physical and mental health of C.H. and N.H.

44. Respondent’s decision to not exempt C.H. and N.H. from the

requirement that they wear a mask in school was and is arbitrary and capricious.

WHEREFORE, Petitioner respectfully requests judgment from this Court

as follows:

A. On their First Cause of Action: (i) declaring Respondent’s refusal to

permit C.H. and N.H. to return to school without masks to be arbitrary and

{H3024431.2} 9
HOGANWILLIG
Attorneys at Law
2410 NORTH FOREST ROAD | SUITE 301 | AMHERST, NEW YORK 14068
Phone: 716.636.7600 | Toll Free: 800.636.5255 | Fax: 716.636.7606 | www.hoganwillig.com
capricious; and (ii) enjoining Respondent from enforcing a mask requirement upon

C.H. and N.H. while at school.

B. Awarding Petitioner its costs and disbursements in this special

proceeding; and

C. Awarding such other and further relief to Petitioner as this Court may

deem just, proper, and equitable in this hybrid special proceeding.

DATED: June 10, 2021

Amherst, New York
Respectfully Submitted,

______________________________
COREY J. HOGAN, ESQ.
HOGANWILLIG, PLLC
Attorneys for Petitioner
2410 North Forest Road, Suite 301
Amherst, New York 14068
Telephone No.: (716) 636-7600
Email: chogan@hoganwillig.com

{H3024431.2} 10
HOGANWILLIG
Attorneys at Law
2410 NORTH FOREST ROAD | SUITE 301 | AMHERST, NEW YORK 14068
Phone: 716.636.7600 | Toll Free: 800.636.5255 | Fax: 716.636.7606 | www.hoganwillig.com