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STATE OF NEW YORK

SUPREME COURT : COUNTY OF ERIE
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CHRISTIAN CENTRAL ACADEMY,

Petitioner/Plaintiff,

For Judgment Pursuant to

Article 78 of the CPLR
And The New York Constitution Index No. _______________

v.

KATHLEEN HOCHUL, GOVERNOR OF NEW YORK;

NEW YORK STATE DEPARTMENT OF HEALTH;
NEW YORK STATE PUBLIC HEALTH AND HEALTH
PLANNING COUNCIL; HOWARD ZUCKER, NEW
YORK STATE COMMISSIONER OF HEALTH;
MARK POLONCARZ, COUNTY EXECUTIVE OF
ERIE COUNTY; GALE BURSTEIN, ERIE COUNTY
COMMISSIONER OF HEALTH; and ERIE COUNTY
DEPARTMENT OF HEALTH,

Respondents/Defendants.
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PETITIONER'S MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR

TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION

TODD J. ALDINGER, ESQ.

Attorney for Petitioner/Plaintiff
441 Potomac Avenue, Lower
Buffalo, New York 14213
716.907.4076

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PRELIMINARY STATEMENT

This Memorandum of Law is submitted in support of the accompanying Verified

Petition and Complaint (the “Petition”) brought by Order to Show Cause by

Petitioner/Plaintiff CHRISTIAN CENTRAL ACADEMY ("Petitioner"), requesting a

preliminary injunction and a temporary restraining order. Petitioner seeks relief against

two sets of Respondents/Defendants (all Respondents/Defendants, jointly, the

“Respondents”).

First, the Petition seeks to enjoin Respondents/Defendants KATHLEEN

HOCHUL, GOVERNOR OF NEW YORK (the “Governor”), NEW YORK STATE

DEPARTMENT OF HEALTH (“NYSDOH”), the NEW YORK STATE PUBLIC

HEALTH AND HEALTH PLANNING COUNCIL (the “Council”); and HOWARD

ZUCKER, NEW YORK STATE COMMISSIONER OF HEALTH (the “Commissioner”)

(the Governor, NYSDOH, the Council, and the Commissioner, jointly, the “State

Respondents”), and those acting in concert with them from applying or enforcing 10

NYCRR § 2.60 and/or the Commissioner’s Guidance1 issued thereunder against Petitioner.

Second, the Petition seeks to enjoin Respondents/Defendants MARK

POLONCARZ, COUNTY EXECUTIVE OF ERIE COUNTY (“Poloncarz”), ERIE

COUNTY DEPARTMENT OF HEALTH (“ECDOH”), and GALE BURSTEIN, ERIE

COUNTY COMMISSIONER OF HEALTH (“Burstein”) (Poloncarz, ECDOH, and

Burstein, jointly, the “Erie Respondents”), and those acting in concert with them from

applying or enforcing the Erie County Department of Health Guidance for PK-12 Schools,

1
Petition at Ex. M.

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2021-2022 (the “Erie County Guidance”)2 and the Order of the Commissioner of Health,

dated August 30, 2021 (the “Erie County Health Order”)3 against Petitioner.

For the reasons set forth below, this Court should grant Petitioner the relief it seeks.

STATEMENT OF FACTS

The pertinent facts are set forth in the Petition and in the concurrently filed

Affidavits of Nicole Opfer, Lucian Visone, and Kristen Guerin, each dated September 3,

2021, and will not be repeated herein except in connection with the argument that follows.

ARGUMENT

A temporary restraining order and/or a preliminary injunction is necessary to

prevent irreparable harm to Petitioner caused by the conduct of Respondents which (i)

exceeds the Respondents’ statutory/constitutional authority; (ii) is arbitrary and capricious;

and (iii) infringes on the rights of private schools.

Petitioner is facing this irreparable harm because—until last week—State officials

had communicated that Petitioner would be allowed to determine its own masking policies.

In reliance on these assurances, Petitioner made significant expenditures and reorganized

its operations around a “parent-choice” masking policy.4 As a result of Petitioner’s mask

policy, dozens of parents concerned about the impact masks have on the welfare, education,

and development of their children chose to enroll their children in Petitioner’s school.

Now—just days before the school year is scheduled to start—Respondents have

reversed course and have chosen to impose mandatory in-school masking, despite there

being no legislative or constitutional authority for these actions. If Respondents’ mask

2
Petition at Ex. J.
3
Petition at Ex. L.
4
Petition at Ex. A.

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mandates are not enjoined, it is expected as much as 20-25% of Petitioner’s students will

be removed from the school by their parents and homeschooled, so they do not have to

wear masks. This will deprive Petitioner of hundreds of thousands of dollars of revenue,

which is likely to cause Petitioner to go out of business.

To obtain a preliminary injunction a party must satisfy the following three

elements: (1) the likelihood of ultimate success on the merits; (2) an irreparable injury if

the injunction is not granted; and (3) a balancing of the equities in the moving party's favor.

See Tucker v. Toia, 54 A.D.2d 322, 324 (4th Dep't 1976). Indeed, in Tucker, the Fourth

Department held that where a "violation of important principles contained in the New York

Constitution" is alleged,"[t]his is precisely the situation in which a preliminary injunction

should be granted.” Id. at 326. This is “precisely the situation” here, where Respondents

are attempting to regulate a private school without the constitutionally necessary delegation

of authority from the Legislature.

If a plaintiff also asks for a temporary restraining order," the plaintiff shall show

that immediate and irreparable injury, loss or damages will result unless the defendant is

restrained before a hearing can be had, a temporary restraining order may be granted

without notice." 2339 Empire Mgmt., LLC v.2329 Nostrand Realty, LLC, 71 A.D.3d 998,

999 (2d Dep't 2010). While CPLR 6313 precludes a court from issuing a temporary

restraining order "against a public officer ... of the state to restrain the performance of

statutory duties" this provision is not applicable here because there are no statutory duties

at issue here. Instead, this motion concerns a regulation, a health order, and a guidance

document. More to the point, none of Respondents have a statutory duty to regulate a

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private school in the manner they are attempting to. Thus, Respondents are without any

statutory duties that implicate CPLR 6313.

Accordingly, as set forth below, Petitioner has met its burden for both forms of

relief.

A. PETITIONER IS LIKELY TO SUCCEED ON THE MERITS OF ITS

CLAIMS.

With respect to the first requirement for granting injunctive relief — likelihood of

success on the merits — the Fourth Department has explained that likelihood of success on

the merits "must not be equated with the showing of a certainty of success." Tucker,

54A.D.2d at 326. Instead, "it is enough if the moving party makes a prima facie showing

of his right to relief; the actual proving of his case should be left to the full hearing on the

merits." Id. (citing Swope v Melian, 35 A.D.2d 981 [2d Dep't 1970]).

As set forth below, Petitioners claims are meritorious.

I. 10 NYCRR § 2.60 Must Be Found Void And Unenforceable Because There

Is No Statutory Basis Authority For This Regulation.

It is well-settled that “[a]gencies [such as the Council, NYSDOH, and ECDOH], as

creatures of the Legislature, act pursuant to specific grants of authority conferred by their

creator.” Matter of Campagna v. Shaffer, 73 N.Y.2d 237, 242 (1989). “Thus, a legislature

may enact a general statute that reflects its policy choice and grants authority to an

executive agency to adopt and enforce regulations that expand upon the statutory text by

filling in details consistent with that enabling legislation.” LeadingAge New York, Inc. v.

Shah, 32 N.Y.3d 249, 260 (2018) (emphasis added). However, “[i]f an agency promulgates

a rule beyond the power it was granted by the legislature, it usurps the legislative role and

violates the doctrine of separation of powers.” Id.

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10 NYCRR § 2.60 purports to be authorized by Public Health Law §§ 201, 206,

and 225. However—while Public Health Law §§ 201, 206, and 225 enumerate extensive

lists of powers and duties to the NYSDOH, the Commissioner, and the Council,

respectively—none of these statutes provides any basis for the mask mandate contained in

10 NYCRR § 2.60.

Specifically, as it relates to epidemics/pandemics, these three statutes contain a

single grant of authority: “The commissioner shall … investigate the causes of …

epidemics.” Public Health Law §206(1)(d) (emphasis added). Clearly, a mask mandate is

not an investigation.

As to communicable diseases more generally, these statutes provide that “[t]he

sanitary code may ... designate the communicable diseases which are dangerous to the

public health.” Public Health Law § 225(5)(h) (emphasis added). But 10 NYCRR § 2.60

does not simply “designate” COVID-19 as a communicable disease; it purports to authorize

an in-school mask mandate on all children over 2 years old.

Other provisions of Public Health Law §§ 201, 206, and 225 are equally unavailing

in providing authority for 10 NYCRR § 2.60.

For example, Respondents are expected to argue authority for 10 NYCRR § 2.60

can be found in Public Health Law § 201(n), which directs the NYSDOH to “exercise

control over and supervise the abatement of nuisances affecting or likely to affect public

health.” Such an argument necessarily entails characterizing every child as a nuisance

since 10 NYCRR § 2.60 purports to apply to every child over the age of 2, not merely those

children diagnosed with COVID-19 or exhibiting symptoms consistent with COVID-19.

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In doing so, Respondents would be arguing the term “nuisance” should be thought

of as the equivalent of a “potential risk.” To say this conception of what constitutes a

nuisance is inconsistent with centuries of jurisprudence would be an understatement. A

situation that potentially could give rise to a risk has never been held to be a nuisance. If

it were, then there would be literally no limit to what could be defined as a nuisance: For

example, under this conception of what constitutes a nuisance, every liquor store could be

regulated as a public health nuisance because the mere sale of alcohol increases the risk of

alcoholism, alcohol poisoning, drunk driving, etc.

Instead, “[n]uisance is a French word which means nothing more than harm.”

William L. Prosser, Private Action for Public Nuisance, 52 Va. L. Rev. 997, 997 (1966)

(emphasis in original); see also NUISANCE, Black's Law Dictionary (11th ed. 2019)

(defining nuisance as “[a] condition, activity, or situation … that interferes with the use or

enjoyment of property.” (Emphasis added)). In other words, it has long been the law that

for something to constitute a nuisance it must actually be causing harm or infringing on a

legal right:

A nuisance may generally be defined as anything that works

or causes injury, damage, hurt, inconvenience, annoyance,
or discomfort to one in the enjoyment of his legitimate and
reasonable rights of person or property; or that which is
unauthorized, immoral, indecent, offensive to the senses,
noxious, unwholesome, unreasonable, tortious, or
unwarranted, and which injures, endangers, or damages one
in an essential or material degree in, or which materially
interferes with, his legitimate rights to the enjoyment of life,
health, comfort, or property, real or personal.

Joseph A. Joyce & Howard C. Joyce, Treatise on the Law Governing Nuisances 22 (1906)

(emphasis added).

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Admittedly, New York courts have infrequently exercised their powers to abate

nuisances before a harm was actually caused. However, “in such circumstances the menace

must be imminent and substantial. It must be in a real sense a menace to the public welfare.

Not every apprehension of injury will move a court.” S. Leasing Co. v. Ludwig, 217 N.Y.

100 (1916) (emphasis added). Thus, “where the harm feared is not yet extant, the burden

rests on the party seeking [to abate the nuisance] … to demonstrate a menace of imminent

and substantial import to the public welfare. If the complainant's right is doubtful, or the

thing which it is sought to restrain is not a nuisance per se and will not necessarily become

a nuisance, but may or may not become such, depending on the use, manner of operation,

or other circumstances” a court will not find a nuisance. City of Yonkers v. Dyl & Dyl Dev.

Corp., 67 Misc. 2d 704, 707 (Sup. Ct. Westchester County 1971), aff'd sub nom. Yonkers,

City Of, v. Dyl & Dyl Dev. Corp., 38 A.D.2d 691 (2d Dep’t 1971) (emphasis added).

The Respondents cannot meet this high burden of showing unmasked school

children are a “nuisance per se” that present an “imminent and substantial” “menace to the

public welfare.” Instead, unmasked children—at most—“may” become a nuisance, but

only if they contract COVID-19 and are not thereafter quarantined. In other words, for this

Court to hold that unmasked children are a nuisance, it must make the absurd finding that

every unmasked child “will necessarily” contract COVID-19 and spread the virus before

they can be quarantined.5

5
Even if school children were predestined to contract and spread COVID-19, the
Respondents still could not meet its burden. A substantial majority of New York adults
have been vaccinated (which both provides immunity from and significantly reduces the
severity of COVID-19), and children under 12 (who are not yet eligible for vaccination)
are the least vulnerable to COVID-19. Moreover, the medical and scientific evidence
clearly shows that the vast majority of individuals that experience severe symptoms of
COVID-19 are either elderly or have significant comorbidities, such as obesity. Thus, the

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This is not to say that Public Health Law § 201(n) is completely irrelevant to

COVID-19. Instead, children who have COVID-19 or symptoms consistent with COVID-

19 might properly be considered nuisances, and for this reason they may be ordered to

quarantine. A regulation to that effect could very well rely on Public Health Law § 201(n)

for authority. But 10 NYCRR § 2.60 goes well beyond this and purports to regulate every

child over the age of 2, regardless of whether there is a reason to believe any specific child

actually poses a risk to anyone’s health.

Therefore, this Court must find that 10 NYCRR § 2.60 is invalid and a legal nullity

because no provision of Public Health Law §§ 201, 206, and/or 225 provides a statutory

basis for this regulation.

II. This Court Cannot Imply Legislative Authority For 10 N.Y.C.R.R. § 2.60
From Public Health Law §§ 201, 206, Or 225 Without Violating The
Separation Of Powers Inherent In The New York State Constitution.

The State Respondents seem to realize they lack any specific legislative authority

for 10 NYCRR § 2.60. In the Regulatory Impact Statement that accompanies 10 NYCRR

§ 2.60, the State Respondents do not even attempt to specify which provisions of Public

Health Law §§ 201, 206, and/or 225 authorize this regulation. Instead, the State

Respondents purport that authority for this regulation can be found in the “legislative

objectives” of these statutes, and not in the actual text of these statutes.

This is not the first time that New York’s health authorities have attempted to

promulgate a public health regulation on the theory that the authority for such a regulation

only population subgroup that might accurately be said to face a “imminent and
substantial” “menace” from a child that actually has COVID-19 are those vulnerable adults
who have voluntarily chosen not to be vaccinated. The Public Health Law should not be
used to punish private schools, parents, and children because certain adults have freely
chosen to expose themselves to additional risk.

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could be implied from legislative objectives of the Public Health Law. See Boreali v.

Axelrod, 71 N.Y.2d 1 (1987). And just as the Court of Appeals rejected this argument in

Boreali, this argument must be rejected by this Court.

In Boreali, the Council promulgated “regulations prohibiting smoking in a wide

variety of indoor areas that are open to the public.” Id. at 7. The Council argued that

“Section 225(5)(a) of the Public Health Law[, which] authorize[d] the [the Council] to ‘deal

... with any matters affecting ... public health’” provided legislative authority for these anti-

smoking regulations, despite the fact that there was no specific grant of authority related to

indoor smoking in the Public Health Law. Id. at 9. The Court of Appeals rejected this

argument, finding that this broad grant of authority—standing alone, without any specific

grant of authority related to indoor smoking—could not be construed as to allow the

NYSDOH to ban indoor smoking without violating the constitutional limits on agency rule

making. See id. (“[E]nactments conferring authority on administrative agencies in broad

or general terms must be interpreted in light of the limitations that the [New York]

Constitution imposes.”).

The Court of Appeals described these constitutional limitations in Matter of Levine

v Whalen, 39 N.Y.2d 510, 515 (1976). In Levine, the Court of Appeals held that “[b]ecause

of the constitutional provision that '[t]he legislative power of this State shall be vested in

the Senate and the Assembly' (NY Const, art III, §1), the Legislature cannot pass on its

law-making functions to other bodies … but there is no constitutional prohibition against

the delegation of power, with reasonable safeguards and standards, to an agency or

commission to administer the law as enacted by the Legislature.” Id. (emphasis added).

10

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In Boreali, the Court of Appeals relied on Levine to find that the general grant of

authority found in Public Health Law § 225(5)(a) could not, by itself, provide the requisite

legislative authority for the Council’s indoor smoking ban because this general grant of

authority (i.e. to “deal … with any matters affecting … public health”) contained no

standards or limitations whatsoever. See 71 N.Y.2d at 10, 16. Accordingly, the Court of

Appeals “conclude[d] that the agency stretched that statute beyond its constitutionally valid

reach when it used the statute as a basis for drafting a code embodying its own assessment

of what public policy [for indoor smoking] ought to be,” without the benefit of any

legislative grant of power as to the specific issue being regulated. Id. at 9.

Similarly, here, the State Respondents have promulgated 10 NYCRR § 2.60 based

on their own assessment of what “public policy ought to be” and without the benefit of any

specific grant of legislative authority relating to an in-school mask mandate. That

Respondents do not even attempt to pinpoint where any statute authorizes such a mask

mandate can be seen as nothing less than an admission that they do not have any specific

authority for this regulation.

Instead, the sum and substance of the State Respondents claim of authority is no

different than the claim of authority rejected by the Court of Appeals in Boreali. See 71

N.Y.2d at 9, 10, 16. If it was unconstitutional for Public Health Law § 225 to be construed

as to afford the State Respondents limitless authority to act in the interest of public health

in relation to indoor smoking, the same analysis must apply equally to the State

Respondents efforts to mandate mask wearing by relying on the “legislative objectives” of

the Public Health Law. See id.

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This absence of any statutory basis for the mask mandate contained in 10 NYCRR

§ 2.60 is easy to explain. Since the earliest days of the COVID-19 crisis, the Legislature

has abdicated its law-making responsibility and allowed the Executive Branch to exert

complete control over New York State’s pandemic response. While many of State

Respondents’ actions during the pandemic may have been wise, this way of governing does

not comport with the separation of powers established in the New York Constitution.

Instead, if the Legislature wants to empower the State Respondents to promulgate a mask

mandate, it must first pass a statute to this effect. Because this has not been done, the State

Respondents’ attempt to find authority for 10 NYCRR § 2.60 in the “legislative objectives”

of the Public Health Law—and not in the text of any statute—“transgresse[s] the line that

separates administrative rule making from legislating … thereby exceed[ing] [their]

statutory powers.” See id. at 16.

III. Imposing A Mask Mandate On Children In School Is A Critical Policy

Decision That Must Be Made By The Legislature.

The New York State Constitution “requires that the legislature make the critical

policy decisions … the executive branch's responsibility is to implement those policies.”

Greater N.Y. Taxi Assn. v. New York City Taxi & Limousine Commn., 25 N.Y.3d 600, 609

(2015); see also Pataki v. New York State Assembly, 4 N.Y.3d 75, 107 (2004); Saratoga

County Chamber of Commerce v. Pataki, 100 N.Y.2d 801, 821-822 (2003). Thus, New

York courts will find that the executive branch is impermissibly exercising legislative

powers where it “has improperly assumed ... ‘[t]he open-ended discretion to choose ends,’

which characterizes the elected Legislature's role in our system of government.” Boreali,

71 N.Y.2d at 11 (quoting Tribe, American Constitutional Law at 285).

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In Boreali the Court of Appeals “set out four ‘coalescing circumstances’ that are

non-mandatory, somewhat-intertwined factors for courts to consider when determining

whether an agency has crossed the hazy ‘line between [] rule-making and legislative policy-

making.’” Greater N.Y. Taxi Assn., 25 N.Y.3d at 610 (quoting Boreali, 71 N.Y.2d at 11).

These factors are whether: (1) “the agency did more than balanc[e] costs and benefits

according to preexisting guidelines, but instead made value judgments entail[ing] difficult

and complex choices between broad policy goals to resolve social problems”; (2) “the

agency merely filled in details of a broad policy or if it wrote on a clean slate, creating its

own comprehensive set of rules without benefit of legislative guidance”; (3) “the

[L]egislature has unsuccessfully tried to reach agreement on the issue, which would

indicate that the matter is a policy consideration for the elected body to resolve”; and (4)

“the agency used special expertise or competence in the field to develop the challenged

regulations.” Id. at 610-12. The "central theme" of a Boreali analysis is that “an

administrative agency exceeds its authority when it makes difficult choices between public

policy ends, rather than find[ing] means to an end chosen by the Legislature.” Matter of

New York Statewide Coalition of Hispanic Chambers of Commerce v. New York City Dept.

of Health & Mental Hygiene, 23 N.Y.3d 681, 700 (2014) (hereinafter “Hispanic Chambers

of Commerce”).

Imposing a statewide masking requirement on school children—and abrogating the

rights of parents and private schools to decide what masking policies are in the best

interests of their children/students in the process—is clearly a critical policy decision.

There is no way to construe this as anything other than a “difficult choice[] between public

policy ends,” i.e. (i) public health on one hand, and (ii) the educational and developmental

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welfare of children, as well as the ability of parents and private schools to determine the

educational environment of their children/students, on the other hand.

Moreover, each of the Boreali factors weigh strongly against the State Respondents.

First, 10 NYCRR § 2.60 makes a value judgement in favor of mandatory in-school masking

and at the expense of concerns for how such masking will impede children’s social,

emotional, and educational development, and at the expense of parents’ and schools’ rights

to choose the educational environment for their children/students. Second, because the

Public Health Law is devoid of any provision related to such in-school masking, the State

Respondents cannot be said to have written 10 NYCRR § 2.60 on anything but a clean

slate. Third, it cannot be ignored that for more than 18 months, the Legislature has failed

to reach any agreement on in-school mask requirements whatsoever. The Legislature’s

failure to reach an agreement on in-school masking—despite having every reason to do

so—does not give the Executive Branch authority to do whatever it pleases. Instead, the

lack of legislation on this matter is evidence that the Legislature does not have sufficient

votes to overturn the status quo, which empowers each individual school to determine how

it will protect the health of the children entrusted to their care.6

6
The fact the Legislature has not passed a statute to this effect—leaving in place
preexisting law that empowers individual schools to make their own masking policies—is
democracy functioning just as it should. Often in a democracy, there is no majority in
favor of overriding the status quo. In such circumstances, it is proper for the status quo to
persist, even when the status quo is not ideal, until concurrent majorities of the State
Assembly and State Senate can agree on how to replace this status quo. The State
Respondents are doing nothing less than attempting to bypass the constitutionally
prescribed law-making procedure, the Legislature, and the millions of New Yorkers who
voted to elect the members of the Legislature to be the State’s lawmakers. No New Yorker
voted to empower the State Respondents to perform legislative policy making—nor could
they—given the New York Constitution only allows the Legislature to perform this
function.

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Finally, while the State Respondents may have relied on their public health

expertise in developing 10 NYCRR § 2.60, the State Respondents do not have educational

or child development expertise necessary to evaluate the tradeoffs this regulation

necessarily entails. Indeed, the Regulatory Impact Statement that accompanies 10 NYCRR

§ 2.60 is completely devoid of any considerations about how this regulation will impact

education and childhood development. Thus, the fourth Boreali factor must be found to

weigh against the State Respondents, given that they only have expertise in one half of the

relevant cost-benefit analysis. Indeed, it’s quite obvious how this regulation was arrived

at: If only experts as to the benefits of a regulation are consulted, and experts as to the costs

of a regulation are excluded from the decision-making process, then surely a regulation

will be adopted, even if its costs greatly outweigh its benefits.

More to the point, the mere facts that multiple bodies of expertise should be

consulted, and that multiple competing interests must be weighed against each other, in

order to determine whether mandatory in-school masking is wise policy—in and of itself—

demonstrates that this regulation is an exercise of “open-ended discretion” to make

“difficult choices between public policy ends,” which only the Legislature may perform.

See Boreali, 71 N.Y.2d at 11; Hispanic Chambers of Commerce 23 N.Y.3d at 700.

Accordingly, this Court must find that 10 NYCRR § 2.60 constitutes impermissible

legislative policy-making by the State Respondents.

IV. This Court Must Invalidate The Fine Contained in 10 N.Y.C.R.R. § 2.60
Because A Fine May Only Be Authorized By The Legislature.

It is well-settled that an agency may not impose a fine, such as 10 NYCRR § 2.60

purports to do, without a statutory basis for such a penalty. See, e.g., Nostima Foods, Inc.

v. State Liquor Auth., 71 N.Y.2d 648, 651–52 (1988) (“Being punitive in nature, a fine may

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only be authorized by the Legislature.”); Catskill Reg'l Off-Track Betting Corp. v. New

York State Racing & Wagering Bd., 276 A.D.2d 379 (1st Dept. 2000) (“The fine was

properly annulled because . . . no authority to impose a fine can be found in the statute.”).

Subpart (f)(i) of 10 NYCRR § 2.60 provides for a $1,000 fine for each violation of

10 NYCRR § 2.60. But no provision of Public Health Law §§ 201, 206, and/or 225

provides for such a $1,000 fine. Thus, at the very least, this Court must enjoin the

enforcement of any such fines against Petitioner.

V. This Court Must Invalidate The Mask Mandate Contained in The Erie
County Guidance And the Erie County Health Order Because The Erie
County Respondents Lack Any Authority to Impose Such Guidance Or
Order On School Districts.

The Erie Respondents similarly lack any authority to mandate that school districts

within Erie County require their students to wear masks, particularly a private school such

as Petitioner’s. The Erie Respondents have no jurisdiction over the operation of such

private schools. The Erie Respondents seem to realize this lack of authority, given that

Burstein characterizes the Erie County Guidance as a compellation of “recommendations”

that provide “useful guidance” in her introduction to the Erie County Guidance.

However, the actual text of the Erie County Guidance purports to establish a mask

mandate for all schools in Erie County.7 This language seems to suggest that schools that

do not mask children indoors will be subject to enforcement actions by the Erie

Respondents, despite the fact that the Erie Respondents do not have the authority to impose

a mask mandate or dictate how a private school is to operate. Accordingly, Petitioner is

entitled to a judicial declaration that the Erie County Guidance is simply non-binding

7
See Petition at ¶ 52.

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recommendations (just as Burstein herself states), so that Petitioner can operate its school

without the threat of an illegal enforcement action hanging over its head.

As to the Erie County Health Order, this Order purports to be authorized by Public

Health Law § 308, which allows Burstein to issue orders “not inconsistent with … the

sanitary code” (§ 308[d]) and orders “for the suppression of nuisances” (§ 308[e]). Because

10 NYCRR § 2.60 was improperly promulgated as part of the sanitary code, and because

unmasked children cannot be properly designated as nuisances unless they are reasonably

suspected of having COVID-19, the in-school masking requirement that appears in the Erie

County Health Order have no basis in statute, and therefore, must be found to be a legal

nullity.

VI. This Court Must Invalidate The Mask Mandates Contained in The Erie
County Guidance and 10 NYCRR § 2.60 Because Both Of These Mask
Mandates Are Arbitrary And Capricious.

The mask mandates contained in the Erie County Guidance and Health Order and

in 10 NYCRR § 2.60 and the Commissioner’s Guidance issued thereunder (jointly, the

“Mask Mandates”) are arbitrary and capricious in at least two regards.8 First, the Mask

Mandates purport to require children as young as 2 to wear a mask, despite the fact that

children are the population subgroup that is least susceptible to COVID-19. Second, the

Mask Mandates only require the wearing of ineffective cloth masks. In other words, the

Mask Mandates seek to impose an ineffective risk mitigation measure on individuals that

aren’t seriously at risk of COVID-19 in the first place. This simply does not make sense.

8
The Mask Mandates are also arbitrary and capricious because they do not provide an
exemption for vaccinated individuals or those who previously had COVID-19. However,
Petitioner does not solely rely on these irrational aspects of the Mask Mandates, given that
these aspects might not provide Petitioner with a basis for the full extent of relief it seeks.

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See Matter of Pell v. Board of Education, 34 N.Y.2d 222, 231 (1974) (“Arbitrary action is

without sound basis in reason and is generally taken without regard to the facts.”).

The spread and impact of COVID-19 amongst children and in schools has been

extensively studied during the pandemic. These studies have found that children are (i) at

a low risk of contracting COVID-19; (ii) at low risk to having severe symptoms from

COVID-19; and (iii) at low risk of spreading COVID-19 to others, including school staff.9

The Respondents’ own data confirms the validity of these studies. According to

the State Respondent’s data, only 31 New Yorkers under 19 have died of COVID-19 during

the pandemic out of roughly 4 million New Yorkers under the age of 18.10 Of New York’s

43,601 COVID-19 deaths, children under the age of 18 represent 0.07% of fatalities,

despite accounting for roughly 20% of New York State’s population.11 COVID-19 simply

isn’t that dangerous to children. 12

While the death of any child is an abject tragedy, it is far from rational for a policy

to seek to eliminate any and all risk of death during a pandemic. As one court in New York

State has stated “reasonable [COVID-19] policies cannot sprout from unreasonable levels

of risk tolerance.” Dinero v. Orchard Park Central School District, 2021 NY Slip Op

31960(U) at p.34 (Sup. Ct. Erie County May 20, 2021) (attached hereto as Exhibit A).

But the irrationality of the Mask Mandates is not limited to these policies’

unreasonable level of risk tolerance. The Mask Mandates also are irrational in how they

9
Petition at Exs. C-I.
10
Petition at ¶¶ 37-38.
11
Id.
12
Respondents cannot rely on the emergence of the Delta variant to save their Mask
Mandates. There is no evidence, whatsoever, that the Delta variant causes more sever
symptoms in children.

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seek to reduce risk. Each of the Mask Mandates expressly allow for the use of cloth masks,

which have been shown to only capture 9.8% of the exhaled aerosols which contain the

COVID-19 virus.13 Conversely, other commercially available masks have been shown to

be more than six times as effective, capturing 60% of these aerosols.14

If children were actually at high risk of dying of COVID-19, Respondents’ decision

to only require cloth masks would be a tragic dereliction of duty. It would be outrageous

for the so-called public health experts who have advanced the Mask Mandates to only

require the use of ineffective mitigation measures if the risks to children were so grave as

to require constant, and universal, masking. Fortunately, the risk to children is not grave,

or even serious.

Instead, the complete mismatch between the Respondents’ overblown claims of the

risks to children from COVID-19 and the woefully ineffective means by which the

Respondents are attempting to mitigate these risks loudly announces that these policies are

not the result of thoughtful and rational analysis, but are instead arbitrary and capricious

decisions.

Indeed, by only mandating the use of ineffective cloth masks, the Mask Mandates

betray the fact that they are little more than pandemic theater, which can only provide

parents with a false sense of security.

Some parents are living with the fear that their child will succumb to COVID-19.

This is entirely understandable; there is no kind of love like that of a parent for their child.

But instead of having honest, and difficult, discussions about the actual severity of the risk

13
Petition at Ex. B.
14
Id.

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COVID-19 poses to children and the impossibility of eliminating this risk, Respondents

have affirmatively chosen to mandate the use of ineffective mitigation measures without

any consideration of the educational or developmental impacts that this policy will have

on children, who will be deprived of normal human interaction for a third consecutive

schoolyear.

This Court should not excuse Respondents from their obligation to develop policies

that are actually supported by science and medicine, especially here, where the policies

being advanced by Respondents will negatively impact children’s education and

development, infringe on parental rights to choose the educational setting for their children,

and dictate that a private school may not operate in a manner that, until last week, it was

told would be permissible.

VII. This Court Must Find That Only The Legislature May Impose A Mask
Mandate on Petitioner’s Private School.

“This is no small or technical matter we deal with here. Private schools have a

constitutional right to exist, and parents have a constitutional right to send their children to

such schools.” Packer Collegiate Inst. v. Univ. of State of New York, 298 N.Y. 184, 191–

92 (1948) (citing Pierce v. Society of the Sisters of the Holy Name of Jesus and Mary, 268

U.S. 510 [1925]). In Packer Collegiate Inst., the Court of Appeals confirmed that the “[t]he

Legislature … has a limited right to regulate such schools in the public interest.” Id. at 192

(citing Pierce, supra, and Meyer v. Nebraska, 262 U.S. 390 [1923]). Given that this

“limited right to regulate” private schools is only possessed by “the Legislature” the Court

of Appeals held “it would be intolerable for the Legislature to hand over to any official or

group of officials, an unlimited, unrestrained, undefined power to make such regulations

[on private schools] as he or they should desire.” Id.

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Such an “intolerable” situation is precisely what is before this Court. The Mask

Mandates—at most—can only find authorization in the “legislative objectives” and general

grants of authority in the Public Health Law (i.e. to “deal ... with any matters affecting ...

public health” [§ 225(5)(a)]; and to “publish … orders … not inconsistent with … the

sanitary code” [§ 308(d)]). These general grants of authority are exactly the kind of

“unlimited, unrestrained, undefined power[s] to make … regulations” on private schools

that the Court of Appeals found would be “intolerable” for the Legislature to delegate.

Accordingly, even if the Respondents had authority to impose the Mask Mandates on

public schools—and they don’t—it would be improper for this Court to find that this

authority extends to regulating private schools in the absence of the Legislature even

attempting to exercise its “limited right to regulate” private schools and actually voting on

and passing a statute to this effect.

B. THERE IS A THREAT OF IMMINENT AND IRREPARABLE HARM TO

PLAINTIFF WITHOUT INJUNCTIVE RELIEF.

The second prong of the New York standard for the grant of preliminary injunctions

is satisfied by a showing that the absence of an injunction will result in irreparable harm to

Petitioner. See Tucker, 54 A.D.2d at 324. Such harm is imminent and ongoing. Earlier

this summer, relying on State officials’ assurances that individual schools would be

allowed to implement masking policies of their choosing for the coming schoolyear,

Petitioner developed a policy for its school that empowered parents to determine whether

their child would be masked while in Petitioner’s school. As a result of this policy, many

parents signed contracts with Petitioner and chose to enroll their children at Petitioner’s

school because they did not want their children’s education and development to be

impaired by a mask for another schoolyear.

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Since the announcement of the Erie County Guidance and 10 NYCRR § 2.60,

numerous parents have contacted Petitioner and threatened to pull their kids from

Petitioner’s school if Petitioner adheres to the Mask Mandates. Accordingly, Petitioner

faces a loss of goodwill and market share, justifying injunctive relief. See Bitsight Tech.,

Inc. v Security Scorecard, Inc., 143 A.D.3d 619, 621 (1st Dept 2016) (holding that a “loss

of current or future market share may constitute irreparable harm” justifying an injunction);

see also Waldbaum, Inc. v. Fifth Ave. of Long Is. Realty Assoc., 85 N.Y.2d 600 (1995);

Second on Second Café, Inc. v. Hing Sing Trading, Inc., 66 A.D.3d 255 (1st Dep’t 2009);

Gallivan v. Cuomo, 71 Misc. 3d 589, 604 (Sup. Ct. Erie County 2021).

Indeed, if these illegal, unconstitutional, and irrational Mask Mandates are allowed

to be enforced, Petitioner may very well go out of business entirely. Petitioner has

significant operating costs and has made significant expenditures to accommodate the

student population that chose to enroll in Petitioner’s school on the basis of Petitioner’s

parent-choice masking policy. The significant reduction of revenue that Petitioner will

experience once these parents pull their children out of its school will make it impossible

for Petitioner to pay for these operating costs and expenditures. Accordingly, this second

element necessary for a preliminary injunction is easily satisfied.

C. THE BALANCE OF EQUITIES WEIGHS IN FAVOR OF PETITIONER.

The balancing of equities requires the court to find "that the harm to the plaintiff

without the injunction will be greater than the harm to the defendant if the injunction is

granted." Vincent C. Alexander, Practice Commentary, McKinney's Cons Laws of NY,

CPLR C6301:2. Where there is "no evidence to suggest [Defendant] will be harmed in the

interim" and where the first two prongs of the injunction standard have been satisfied, an

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injunction is properly granted. Park Briar Assoc. v Park Briar Owners, Inc., 182 A.D.2d

685, 687 (2d Dep't 1992).

Here, the balance of equities clearly favors the Petitioner. Relying on assurances

that individual schools would be allowed to develop their own masking policies, Petitioner

thoughtfully and responsibly developed and implemented a parent-choice mask policy.

Since the beginning of the pandemic, public health authorities have been repeating

the mantra of “six feet of social distancing or a mask.” Accordingly, Petitioner chose to

orient its operations around providing six feet of social distancing, not mandatory masking.

Given classroom space constraints, Petitioner reduced its class size to 12-13 students per

classroom so that six feet of social distancing could be provided. This smaller class size

required petitioner to hire five additional teachers, which Petitioner would not have had to

hire if it only spaced students with three feet of social distancing (as the Mask Mandates

allow).

Moreover, because Petitioner was not going to require universal mask wearing,

Petitioner spent $27,000 to install CDC recommended air purification systems in every

classroom. All in, Petitioner is expending over $200,000 to ensure that every classroom is

equipped with a CDC recommended air purification system and to reduce its class sizes so

that every student is afforded six feet of social distancing.

Respondents cannot show that they will be harmed if Petitioner is allowed to

operate with these alternative safety measures in place instead of adhering to the Mask

Mandates, particularly when these Mask Mandates only require the use of ineffective cloth

masks. If anything, Petitioner’s COVID-19 mitigation measures meet or exceed the level

of protection afforded by ineffective cloth masks. Finally, it is important to note that

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Petitioner’s mask policy does not prohibit the wearing of masks, and it is expected that a

substantial number of parents will chose to have their children wear masks. Respondents

cannot demonstrate that universal masking with ineffective cloth masks is necessary to

prevent any harm to the public in light of the alternative mitigation measures Petitioner has

implemented.

Nor can Respondents credibly argue that COVID-19 presents such a grave crisis as

to require the wholesale suspension of constitutional, representative government,

particularly when vaccines have been widely available to most New Yorkers for many

months and when young children who not yet eligible for vaccination are at the least risk

to contract COVID-19 or have severe symptoms. Thus, the only "harm" Respondents can

even claim is that an injunction will prevent them from imposing illegal and

unconstitutional restrictions on Petitioner. Such a fanciful "harm" is insufficient to defeat

a motion for injunctive relief, and is particularly insufficient here, where this "harm" must

be weighed against unconstitutional, illegal, and irrational acts of Respondents. There is

no public interest in maintaining these Mask Mandates. See, e.g., Gordon v. Holder,

721F.3d 638, 653 (D.C. Cir. 2013) (recognizing that the "enforcement of an

unconstitutional law is always contrary to the public interest").

Instead, granting Petitioner the relief it seeks serves the common good by

reinforcing the rights of all New Yorkers to a system of government as set forth in the New

York Constitution and curtailing the Respondents’ arbitrary and capricious efforts to

regulate a private school without a statutory basis for such a regulation. Ensuring that

Respondents not violate those rights under the pretext of COVID-19 should be of

paramount concern to everyone, including the Court, as it ultimately benefits the public.

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CONCLUSION

For the foregoing reasons, Petitioner respectfully requests that this Court grant the

requested relief and issue both a temporary restraining order and preliminary injunction,

together with such other and further relief that the Court deems just and proper.

Dated: September 6, 2021

Buffalo, New York
_/s/ Todd J. Aldinger__
TODD J. ALDINGER, ESQ.
Attorney for Petitioner/Plaintiff
441 Potomac Avenue, Lower
Buffalo, New York 14213
716.907.4076
toddaldinger@gmail.com

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WORD COUNT SPECIFICATIONS STATEMENT

[Pursuant to 22 NYCRR § 202.5-b & 22 NYCRR § 202.8-b]

I, Todd J. Aldinger, the filing attorney for the above brief, having conducted a diligent
review of the number of words and length of the brief using the word-processing system
provided by Microsoft Word, and relying upon the results of that word-processing system,
do hereby certify that the foregoing brief was prepared on a computer pursuant to the
specifications set forth in 22 NYCRR §§ 202.5(a), 202.5-b, and 202.8-b], and as set forth
below:

Typeface: Times New Roman Text Font Size: 12

Footnote Font Size: 12
Line Spacing: Double

The total number of words in the foregoing brief is 6,909, inclusive of point headings and
footnotes and exclusive of signature blocks and pages including the table of contents, table
of citations, proof of service, and certificate of compliance.

Dated: September 6, 2021

Buffalo, New York
_/s/ Todd J. Aldinger__
TODD J. ALDINGER, ESQ.
Attorney for Petitioner/Plaintiff
441 Potomac Avenue, Lower
Buffalo, New York 14213
716.907.4076
toddaldinger@gmail.com

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