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FILED: YATES COUNTY CLERK 11/24/2020 05:01 PM INDEX NO. 2020-5139
NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 11/24/2020
EXHIBIT 2
FILED: SENECACOUNTY
YATES COUNTYCLERK CLERK11/24/2020
11/06/202005:01 12:08PM PM INDEX
INDEXNO. NO.2020-5139
20200238
NYSCEF DOC. NO. 19
27 RECEIVED NYSCEF: 11/06/2020
11/24/2020
STATE OF NEW YORK, SUPREME COURT
COUNTYOFSENECA
Nicole Westfall,
Anthony Midiri,
Plaintiffs/Petitioners,
ORDER TO SHOW CAUSE
Index Number: e2020-0238
v.
Andrew Cuomo, in his official capacity
as Governor of the State of New York,
Howard Zucker, in his official capacity as
Commissioner of Health for the
State of New York,
Defendants/Respondents.
PRESENT: HONORABLE WILLIAM K. TAYLOR
On reading the duly executed Complaint and Verified Article 78 Petition, sworn to by the
2nd
Plaintiffs/Petitioners on the and 1lth day of September, 2020, and on motion of Carl J. Schwarts,
Jr.,attorney for Plaintiffs/Petitioners; itis hereby,
ORDERED, that the Defendants/Respondents herein show cause at a motion term of this
Court, to be held in and for the County of Yates, at the County Courthouse in the Village of Pen a
10 00 A.M
Yan, on the _
17th day of December , 2020, at o'clock in the noo1
of that day or as soon thereafter as counsel can be heard, why an Order of Judgment pursuant t3
n-s,c. s - c-u,, Article 78 of the Civil Practice Law and Rules granting relief as set forth in the complaint/petitior t,
THE l_. WS6 ILDfNC Should not be entered; and itis further,
Sutr s 201 -21o
131 VIAINSUREET
P.O. Sox 681
PENNYAN, NY
1452 7
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cause
to Show
ORDERED, that copies of
grater
this Order and supporting documents be served on tle
inaccordancew.IE 3o7andCPLR784
Defendants/Respondents at an Office of the Attorney General for the State of New York on or
before the16th day of November , 2020; and itis further,
ORDERED, that the NYS Office of the Attorney General accept service of the within acticn
on behalf of the defendants; and itis further,
ORDERED, that ifthe NYS Office of the Attorney General refused to accept service of t1 e
within action on behalf of the defendants that the plaintiff shall have the right to serve the
defendants by United States Postal first class mail; and itis further,
ORDERED, that opposition papers shall be received by the m day of
Ember
November, 2020,
w
and ifany, shall be received the 15th of
December and itis
reply papers, by ____ day November, 2020; further,
w
ORDERED, that this matter is consolidated for purposes of oral argument with Index No.
E2020-
5139 pending in the County of Yates.
Signed this _
fth day of
November
October, 2020.
w
Hon. William K. Taylor, Justice, Supreme Court
FingerLakesLaw Group
wrrH
ApvoCATING
lÑTEGRITY
THE LOWN'SSUtLDING
SU/TES201 -210
13 1 MAIN STREET
P.0. 6ox 6 81
PENNYAN, NY
1452 7
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NEW YORK STATE, SUPREME COURT
COUNTY OF SENECA
Nicole Westfall,
Anthony Midiri
Plaintiffs/Petitioners,
COMPLAINT & ARTICLE 78
VERIFIED PETITION
Index No.
Against
Howard Zucker, in his official capacity as
Commissioner of Health for the State of New York,
and
Andrew Cuomo, in his official capacity as
Governor of the State of New York.
Defendants/Respondents.
AS AND FOR A PROCEEDING BROUGHT PURSUANT TO
ARTICLE 78 AND 3001 OF THE CPLR.
Plaintiff/Petitioner, allege through counsel, the following:
NATURE OF THE PROCEEDING
1. This proceeding is brought pursuant to CPLR Articles 78 and 3001, seeking an
injunction and declaratory relief, challenging as unlawful and unconstitutional,
emergency measures enacted by the Defendants/Respondents in their official capacities
as Governor of the State of New York and Commissioner of Health of New York State,
in response to the Covidl9 pandemic.
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2. Plaintiffs/Petitioners allege that the emergency measures referenced above violate
the rights of assembly and free speech clauses of the First Amendment of the Constitution
of the United States.
3. Plaintiffs/Petitioners allege that the emergency measures referenced above violate
the government's taking and due process (being deprived of life, liberty or property,
without due process of law) clauses of the Fifth Amendment of the Constitution of the
United States.
4. Plaintiffs/Petitioners allege that the emergency measures referenced above violate
the right of due process clause of the Fourteenth Amendment of the Constitution of the
United States.
PARTIES
5. Plaintiff/Petitioner, Nicole Westfall, is a resident of Seneca County and the
mother of children who attend a public school that has so many restrictions
students'
negatively affecting mental and physical health that Petitioner will not
be allowing her children to attend school until the restrictions are lifted.
Petitioners's children are cub scouts who have their meetings at a local church and
due to the Respondent's arbitrary and capricious mandates the church has been
shut down and the cub scouts have nowhere to attend their meetings. The
Petitioner's children are normally involved in wrestling and cheerleading and
were planning to play football and the restrictions placed on the school has shut
down these events and had a negative effect on the students. Last of all,
Petitioner's husband works for a business that transports customers for weddings
and wine tastings and the restrictions placed on business by the Respondents have
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destroyed a major share of business and created economic harm to Petitioner's
family and the business. Plaintiff/Petitioner, Anthony Midiri, is a resident of
Seneca County and owns real estate within Seneca County and has not been able
to evict tenants who have refused to pay their rent and has been financially
harmed due to the actions of the Defendants/Respondents.
6. Defendant/Respondent, Andrew Cuomo, is the Governor of the State of New
York, and Defendant/Respondent, Howard Zucker, is the Commissioner of Health of the
State of New York.
JURISDICTION
7. This Court has jurisdiction pursuant to CPLR Article 78 to review the challenged
actions of the NYS Governor and Commissioner of Health and to strike down the
emergency measures enacted as violative of state and federal law, and this Court has the
authority pursuant to Article 3001 of the CPLR to permanently enjoin the emergency
measures, upon a showing of constitutional violations and irreparable harm to
Plaintiffs/Petitioners.
ALLEGATIONS
8. In the months of 2020, the Center for Disease Control ("CDC") identified
early
cases of a virus, Covidl9, that were a threat to the citizens of the United States.
9. Within short weeks, governing leaders started to act to protect the public and,
with input from the Center for Disease Control, took action to shut down public life in an
unprecedented way for The People of the United States.
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10. Initially,in New York State, The People were told that the reason they were being
ordered to stay home and not convene at work, restaurants, theaters, beauty salons, stores
and churches was to protect Us from the threat of Covidl9.
11. The People were warned about the threat of the Covidl9 virus and advised that
time"
the reason they were being ordered not to convene for a "short period of was to
curve"
"flatten the of those who would contract the virus and limit the populations of
those needing and seeking help from hospitals so that hospitals would not be
overwhelmed by those affected with the virus.
12. The public was wamed that failure to comply with taking drastic measures to
protect the public health would lead to the deaths of over two million Americans.
Quarantines and lock downs would reduce the number to one million dead Americans,
according to UK advisor Professor Neil Ferguson. Ferguson resigned his position as
advisor to the prime Minister Boris Johnson on May 6, 2020, having been caught
breaking his own social distancing rules. See Exhibit A: Imperial College London dated
17 March 2020. Being rational citizens, The People took this advice seriously and took
drastic measures to reduce risks by staying home and exercising social distancing.
13. While itannoying and economically damaging, The People followed the
finding
directives of leaders and shuttered our stores and ceased convening in public in
governing
a combined effort to curtail Covidl9 and beat the virus that threatened the public health
of the world.
14. In the weeks that followed, New York State became the new epicenter of the
Covidl9 crisis as residents of New York City started to contract the virus.
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15. Andrew Cuomo, the governor of New York State, shut down the operations of the
"essential"
entire State excepting certain services to include a few areas essential to
human life until such time as the crisis could be averted.
"crisis" "crisis"
16. Just short weeks into the itwas ascertained that the was not nearly
as bad as it had been feared and that hospitals, which had refused elective procedures at
the time in order to be able to handle the extreme case loads of those infected with the
virus, were in financial trouble as the vacancy rate at hospitals sky-rocketed.
17. Death rates from Covidl9 were being manipulated by hospitals which were being
encouraged by embarrassed government leaders with financial incentives to manipulate
the numbers of those dying from Covidl9 to include all deaths when in fact the
government ceased to track the number of deaths from other illnesses and viruses; likely,
the number of those dying from Covidl9 are little greater than that of any typical flu
virus. Exhibit B: Pneumonia and Influenza Mortality Surveillance from the National
Center for Health Statistics Mortality Surveillance System 2019-2020 data.
18. According to Dr. Birx, Covid19 advisor to the White House, the CDC has used a
accounting"
"liberal of Covid19 deaths, there being no distinction of dying with Covid19
or from Covid19. The Chinese medical scientists quickly realized Antigen/PCR
dying
tests were not valid. Due to this finding the CCP required a CT scan or MRI of the lungs
and two (2) positive Antigen/PCR tests before making a positive Covid19 case. Exhibit
C: Dr. Birx: Real Clear Politics dated April 8, 2020 and Exhibit D: National Vital
Statistics System, Covidl9 Alert No. 2, dated March 24, 2020.
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19. In fact, the hospitals were never overwhelmed by a population of those suffering
from Covidl9 and struggled financially until they were allowed to continue providing
elective procedures.
"curve"
20. In fact, the was flattened as those dying of Covidl9 plummeted in
number causing policy makers to stop reporting the mortality rates and instead start to
report the number of those who had contracted the virus instead.
21. In fact, of the approximately 180,000 deaths in the US, only 6% had Covidl9 as
the only cause mentioned. 94% of Covidl9 victims had an average of 2.6 comorbidities.
Rational minds would conclude that the death rate from Covidl9 has been greatly
exaggerated. Exhibit E: Center for Disease Control and Prevention Weekly Updates by
Demographic and Geographic Characteristics dated August 19, 2020.
22. Governing leaders, embarrassed by how much they had overstated the effects of
Covid19, and being too proud to simply admit they were wrong, changed the rhetoric
about the virus and increased the restrictions on business, education and public life in an
"protect"
effort to The People. Schools, colleges and universities, performance halls,
food establishments, sports stadiums, churches and even the Courts were closed.
Landlords were restricted from attempting to evict tenants, for any reason. The public
was forced to wear masks or risk being arrested. Stores were forced to operate at levels
that were not financially feasible.
23. In the meantime, while the masses obeyed the goveming leader's directive to
mask"
"maintain a distance of 6 feet apart or wear a in order to prevent the spread of
Covidl9, many of those constituting The People saw through the entire sham and simply
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refused to be muzzled the government - time has borne out that The People got itright
by
again.
24. The mortality rate for children, young adults and those up to forty-five years of
age is mathematically nearly zero (0) percent, for those forty-five to seventy years is
anywhere from .05 to .3 of a percentage point, and only for those over 70 years of age of
mathematical significance. Exhibit F: The Washington Examiner, Stanford Doctor:
Coronavirus fatality rate for people under 45 'almost O'.
25. science has discovered that the immune system has developed Sars-
Emerging
COV2 specific antibodies that are long lasting and will lead to heard immunity from the
virus. Exhibit G: The Seattle Times, article dated August 18, 2020.
26. As deaths due to Covidl9 decreased significantly and plateaued at an extremely
low level, businesses were allowed to slowly start reopening; of note, there has been no
escalation of deaths.
27. Schools and institutions of higher learning, the epicenter of public life in the
United States, having been closed during the crisis, contemplated re-opening for the Fall
semester of 2020, subject to crippling rules being arbitrarily ordered by the Respondent
with no scientific basis, in fact, for formulating said rules.
28. The doctors of the Panoramic Pediatric Group in Rochester, New York, placed a
statement on their web-site in support of re-opening schools only to remove their
statement and make an apology for same less than one day later, upon information and
belief, under political pressure being exerted against them by the Defendant/Respondent's
agents, being entirely political in nature. Exhibit H, Panoramic Pediatric Group
Statement Supporting Reopening of Schools.
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29. The fact is,experts the world over as well as right here in Upstate New York have
stated publicly to policy makers that children are at extremely low risk of Covidl9 and
that they are at greater risk for many reasons if they are not in school. Exhibit I: Open
Letter from 24 medical doctors in the Rochester, New York, region, posted July 14, 2020.
30. The fact is,children will not understand why they are being forced to be socially
distant from their classmates or wear masks even if school districts are able to transport
the kids to school given the exaggerated safety precautions being required by the
Defendant. In light of the extremely low risk Covidl9 poses to them students should not
be forced to wear masks as they sit in classrooms, get their physical activity and learning
in physical education classes and project their voices as they sing, play instruments or
present oral speeches or answer questions.
31. Dr. Clayton Baker, one of the signers of the open letter referenced herein above,
has further stated that decisions regarding the details of school re-openings should be
made in an update to the prior letter based on what has been proven scientifically
locally
over the last months. Exhibit J: Affidavit of Clayton Baker, M D., dated August 25, 2020.
32. The fact the American People understand risk and it is inherent in the rights
is,
We possess in our nation's Constitution to be able to take appropriate steps to limit risks
whether for those who are vulnerable and need protection or for those who are not likely
more than just a fear of of Covidl9 - it
at risk. That amelioration of risk includes dying
includes all of the well documented consequences of living life being socially distant,
muzzled a mask, and economically destroyed. Exhibit K: Center for Disease Control
by
and Prevention, and Mortality Weekly Report dated August 14, 2020.
Morbidity
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33. The evidence proves that the public health emergency of Covidl9 has ended and
with it whatever powers, whether legitimate or otherwise, Defendant/Respondent
possessed to enact emergency legislation. Accordingly, it is now up to our
legislators to enact any laws they deem appropriate to protect The People as our
duly elected leaders. Safeguards for our citizens, whether students in schools,
parents at work, or the elderly in nursing homes, should be overseen by local
leadership instituting reasonable and rational measures in concert with laws
generated by our elected legislators.
AS AND FOR A FIRST CAUSE OF ACTION
(Declaratory Relief under Article 3001 of the CPLR)
34. Plaintiffs/Petitioners incorporate all preceding paragraphs as though set forth fully
herein.
35. The safety protocols for children returning to school should be made at the local
school district level not by a governing leader who resides in or around Albany or New
York City. There is a vast difference between issues being faced by inner city school
districts and those in agricultural communities in Upstate New York.
36. It isa violation of every student's Constitutional Right to Due Process pursuant to
14*
the Amendment of the United States Constitution for a governor and/or health
commissioner to be controlling the details of classrooms everywhere in the State of New
York. Lawmakers at all levels with time for input from constituents should be the ones
making laws regarding our students if any laws are, in fact, necessary.
37. The New York State Constitution provides that every local government "shall
thereof"
have a legislative body elected by the people (N.Y. Constitution art. IX,
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Section 1(a). The Defendants/Respondents have continued to mandate allsorts of
rules that are an unconstitutional delegation of the "fundamental policy-making
responsibility"
of the legislature, in violation of the separation-of-powers
doctrine. See N.Y Statewide Coalition of Hispanic Chambers of Commerce, 23
N.Y. 3d at 693-695; Cf. Boreali, 71 N.Y. 2d at 9.
AS AND FOR A SECOND CAUSE OF ACTION
(Declaratory Relief under Article 3001 of the CPLR)
38. Plaintiffs/Petitioners incorporate all preceding paragraphs as though set forth fully
herein.
39. Itis a violation of the Freedom of Religion and Freedom of Assembly clauses of
the First Amendment of the United States Constitution for the Defendants/Respondents to
have restricted the People from attending houses of worship and the
Defendants/Respondents should be enjoined from any attempts to re-institute any such
restrictions in the future.
AS AND FOR A THIRD CAUSE OF ACTION
Relief under Article 3001 of the CPLR)
(Declaratory
40. Plaintiffs/Petitioners incorporate allpreceding paragraphs as though set forth fully
herein.
41. It isa violation of the Freedom of clause of the First Amendment of the
Assembly
United States Constitution for the Defendants/Respondents to restrict the People from
performances in performance halls and sports events at stadiums and they
attending
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should be enjoined from placing restrictions on same now that the threat of Covidl9 is
greatly reduced and much better understood.
AS AND FOR A FOURTH CAUSE OF ACTION
(Declaratory Relief under Article 3001 of the CPLR)
42. Plaintiffs/Petitioners incorporate allpreceding paragraphs as though set forth fully
herein.
43. It isa violation of the Taking Clause of the Fifth Amendment of the United States
Constitution for the Defendants/Respondents to restrict the number of customers
businesses are allowed to serve or to place restrictions such as the use of mask on
customers such that it makes it likely that many customers will simply not patronize
establishments thus making it not financially feasible to do business.
Plaintiff/Petitioners'
businesses have lost significant revenue due to the restrictions.
44. The Defendants/Respondents should be enjoined from placing such restrictions on
business owners given that the threat of Covidl9 is greatly reduced and much
better understood.
AS AND FOR A FIFTH CAUSE OF ACTION
(Declaratory Relief under Article 3001 of the CPLR)
45. Plaintiffs/Petitioners incorporate all preceding paragraphs as though set forth fully
herein.
46. It isa violation of the Taking Clause of the Fifth Amendment of the United States
Constitution for the Defendant/Respondent to restrain landlords from evicting tenants
from privately owned real estate whether for failure to pay rent or otherwise breaching
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the terms of a lease and otherwise the lives of other tenants in leased
imperiling
structures.
NO PRIOR APPLICATION
No prior application has been made for the relief requested herein.
RELIEF SOUGHT
(a) Allowing local school districts to make rules deem
any they
appropriate to safeguard the return of children to schools and the
enjoining
Defendants/Respondents from instituting any such rules further rule
leaving
Preview
FILED: YATES COUNTY CLERK 11/24/2020 05:01 PM INDEX NO. 2020-5139 NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 11/24/2020 EXHIBIT 2 FILED: SENECACOUNTY YATES COUNTYCLERK CLERK11/24/2020 11/06/202005:01 12:08PM PM INDEX INDEXNO. NO.2020-5139 20200238 NYSCEF DOC. NO. 19 27 RECEIVED NYSCEF: 11/06/2020 11/24/2020 STATE OF NEW YORK, SUPREME COURT COUNTYOFSENECA Nicole Westfall, Anthony Midiri, Plaintiffs/Petitioners, ORDER TO SHOW CAUSE Index Number: e2020-0238 v. Andrew Cuomo, in his official capacity as Governor of the State of New York, Howard Zucker, in his official capacity as Commissioner of Health for the State of New York, Defendants/Respondents. PRESENT: HONORABLE WILLIAM K. TAYLOR On reading the duly executed Complaint and Verified Article 78 Petition, sworn to by the 2nd Plaintiffs/Petitioners on the and 1lth day of September, 2020, and on motion of Carl J. Schwarts, Jr.,attorney for Plaintiffs/Petitioners; itis hereby, ORDERED, that the Defendants/Respondents herein show cause at a motion term of this Court, to be held in and for the County of Yates, at the County Courthouse in the Village of Pen a 10 00 A.M Yan, on the _ 17th day of December , 2020, at o'clock in the noo1 of that day or as soon thereafter as counsel can be heard, why an Order of Judgment pursuant t3 n-s,c. s - c-u,, Article 78 of the Civil Practice Law and Rules granting relief as set forth in the complaint/petitior t, THE l_. WS6 ILDfNC Should not be entered; and itis further, Sutr s 201 -21o 131 VIAINSUREET P.O. Sox 681 PENNYAN, NY 1452 7 1 of 2 FILED: SENECACOUNTY YATES COUNTYCLERK CLERK11/24/2020 11/06/202005:01 12:08PM PM INDEX INDEXNO. NO.2020-5139 20200238 NYSCEF DOC. NO. 19 27 RECEIVED NYSCEF: 11/06/2020 11/24/2020 cause to Show ORDERED, that copies of grater this Order and supporting documents be served on tle inaccordancew.IE 3o7andCPLR784 Defendants/Respondents at an Office of the Attorney General for the State of New York on or before the16th day of November , 2020; and itis further, ORDERED, that the NYS Office of the Attorney General accept service of the within acticn on behalf of the defendants; and itis further, ORDERED, that ifthe NYS Office of the Attorney General refused to accept service of t1 e within action on behalf of the defendants that the plaintiff shall have the right to serve the defendants by United States Postal first class mail; and itis further, ORDERED, that opposition papers shall be received by the m day of Ember November, 2020, w and ifany, shall be received the 15th of December and itis reply papers, by ____ day November, 2020; further, w ORDERED, that this matter is consolidated for purposes of oral argument with Index No. E2020- 5139 pending in the County of Yates. Signed this _ fth day of November October, 2020. w Hon. William K. Taylor, Justice, Supreme Court FingerLakesLaw Group wrrH ApvoCATING lÑTEGRITY THE LOWN'SSUtLDING SU/TES201 -210 13 1 MAIN STREET P.0. 6ox 6 81 PENNYAN, NY 1452 7 2 of 2 FILED: SENECACOUNTY YATES COUNTYCLERK CLERK11/24/2020 09/15/202005:01 10:38PM AM INDEX INDEXNO. NO.2020-5139 20200238 NYSCEF DOC. NO. 2 27 RECEIVED NYSCEF: 09/15/2020 11/24/2020 NEW YORK STATE, SUPREME COURT COUNTY OF SENECA Nicole Westfall, Anthony Midiri Plaintiffs/Petitioners, COMPLAINT & ARTICLE 78 VERIFIED PETITION Index No. Against Howard Zucker, in his official capacity as Commissioner of Health for the State of New York, and Andrew Cuomo, in his official capacity as Governor of the State of New York. Defendants/Respondents. AS AND FOR A PROCEEDING BROUGHT PURSUANT TO ARTICLE 78 AND 3001 OF THE CPLR. Plaintiff/Petitioner, allege through counsel, the following: NATURE OF THE PROCEEDING 1. This proceeding is brought pursuant to CPLR Articles 78 and 3001, seeking an injunction and declaratory relief, challenging as unlawful and unconstitutional, emergency measures enacted by the Defendants/Respondents in their official capacities as Governor of the State of New York and Commissioner of Health of New York State, in response to the Covidl9 pandemic. 1 of 16 FILED: SENECACOUNTY YATES COUNTYCLERK CLERK11/24/2020 09/15/202005:01 10:38PM AM INDEX INDEXNO. NO.2020-5139 20200238 NYSCEF DOC. NO. 2 27 RECEIVED NYSCEF: 09/15/2020 11/24/2020 2. Plaintiffs/Petitioners allege that the emergency measures referenced above violate the rights of assembly and free speech clauses of the First Amendment of the Constitution of the United States. 3. Plaintiffs/Petitioners allege that the emergency measures referenced above violate the government's taking and due process (being deprived of life, liberty or property, without due process of law) clauses of the Fifth Amendment of the Constitution of the United States. 4. Plaintiffs/Petitioners allege that the emergency measures referenced above violate the right of due process clause of the Fourteenth Amendment of the Constitution of the United States. PARTIES 5. Plaintiff/Petitioner, Nicole Westfall, is a resident of Seneca County and the mother of children who attend a public school that has so many restrictions students' negatively affecting mental and physical health that Petitioner will not be allowing her children to attend school until the restrictions are lifted. Petitioners's children are cub scouts who have their meetings at a local church and due to the Respondent's arbitrary and capricious mandates the church has been shut down and the cub scouts have nowhere to attend their meetings. The Petitioner's children are normally involved in wrestling and cheerleading and were planning to play football and the restrictions placed on the school has shut down these events and had a negative effect on the students. Last of all, Petitioner's husband works for a business that transports customers for weddings and wine tastings and the restrictions placed on business by the Respondents have 2 of 16 FILED: SENECACOUNTY YATES COUNTYCLERK CLERK11/24/2020 09/15/202005:01 10:38PM AM INDEX INDEXNO. NO.2020-5139 20200238 NYSCEF DOC. NO. 2 27 RECEIVED NYSCEF: 09/15/2020 11/24/2020 destroyed a major share of business and created economic harm to Petitioner's family and the business. Plaintiff/Petitioner, Anthony Midiri, is a resident of Seneca County and owns real estate within Seneca County and has not been able to evict tenants who have refused to pay their rent and has been financially harmed due to the actions of the Defendants/Respondents. 6. Defendant/Respondent, Andrew Cuomo, is the Governor of the State of New York, and Defendant/Respondent, Howard Zucker, is the Commissioner of Health of the State of New York. JURISDICTION 7. This Court has jurisdiction pursuant to CPLR Article 78 to review the challenged actions of the NYS Governor and Commissioner of Health and to strike down the emergency measures enacted as violative of state and federal law, and this Court has the authority pursuant to Article 3001 of the CPLR to permanently enjoin the emergency measures, upon a showing of constitutional violations and irreparable harm to Plaintiffs/Petitioners. ALLEGATIONS 8. In the months of 2020, the Center for Disease Control ("CDC") identified early cases of a virus, Covidl9, that were a threat to the citizens of the United States. 9. Within short weeks, governing leaders started to act to protect the public and, with input from the Center for Disease Control, took action to shut down public life in an unprecedented way for The People of the United States. 3 of 16 FILED: SENECACOUNTY YATES COUNTYCLERK CLERK11/24/2020 09/15/202005:01 10:38PM AM INDEX INDEXNO. NO.2020-5139 20200238 NYSCEF DOC. NO. 2 27 RECEIVED NYSCEF: 09/15/2020 11/24/2020 10. Initially,in New York State, The People were told that the reason they were being ordered to stay home and not convene at work, restaurants, theaters, beauty salons, stores and churches was to protect Us from the threat of Covidl9. 11. The People were warned about the threat of the Covidl9 virus and advised that time" the reason they were being ordered not to convene for a "short period of was to curve" "flatten the of those who would contract the virus and limit the populations of those needing and seeking help from hospitals so that hospitals would not be overwhelmed by those affected with the virus. 12. The public was wamed that failure to comply with taking drastic measures to protect the public health would lead to the deaths of over two million Americans. Quarantines and lock downs would reduce the number to one million dead Americans, according to UK advisor Professor Neil Ferguson. Ferguson resigned his position as advisor to the prime Minister Boris Johnson on May 6, 2020, having been caught breaking his own social distancing rules. See Exhibit A: Imperial College London dated 17 March 2020. Being rational citizens, The People took this advice seriously and took drastic measures to reduce risks by staying home and exercising social distancing. 13. While itannoying and economically damaging, The People followed the finding directives of leaders and shuttered our stores and ceased convening in public in governing a combined effort to curtail Covidl9 and beat the virus that threatened the public health of the world. 14. In the weeks that followed, New York State became the new epicenter of the Covidl9 crisis as residents of New York City started to contract the virus. 4 of 16 FILED: SENECACOUNTY YATES COUNTYCLERK CLERK11/24/2020 09/15/202005:01 10:38PM AM INDEX INDEXNO. NO.2020-5139 20200238 NYSCEF DOC. NO. 2 27 RECEIVED NYSCEF: 09/15/2020 11/24/2020 15. Andrew Cuomo, the governor of New York State, shut down the operations of the "essential" entire State excepting certain services to include a few areas essential to human life until such time as the crisis could be averted. "crisis" "crisis" 16. Just short weeks into the itwas ascertained that the was not nearly as bad as it had been feared and that hospitals, which had refused elective procedures at the time in order to be able to handle the extreme case loads of those infected with the virus, were in financial trouble as the vacancy rate at hospitals sky-rocketed. 17. Death rates from Covidl9 were being manipulated by hospitals which were being encouraged by embarrassed government leaders with financial incentives to manipulate the numbers of those dying from Covidl9 to include all deaths when in fact the government ceased to track the number of deaths from other illnesses and viruses; likely, the number of those dying from Covidl9 are little greater than that of any typical flu virus. Exhibit B: Pneumonia and Influenza Mortality Surveillance from the National Center for Health Statistics Mortality Surveillance System 2019-2020 data. 18. According to Dr. Birx, Covid19 advisor to the White House, the CDC has used a accounting" "liberal of Covid19 deaths, there being no distinction of dying with Covid19 or from Covid19. The Chinese medical scientists quickly realized Antigen/PCR dying tests were not valid. Due to this finding the CCP required a CT scan or MRI of the lungs and two (2) positive Antigen/PCR tests before making a positive Covid19 case. Exhibit C: Dr. Birx: Real Clear Politics dated April 8, 2020 and Exhibit D: National Vital Statistics System, Covidl9 Alert No. 2, dated March 24, 2020. 5 of 16 FILED: SENECACOUNTY YATES COUNTYCLERK CLERK11/24/2020 09/15/202005:01 10:38PM AM INDEX INDEXNO. NO.2020-5139 20200238 NYSCEF DOC. NO. 2 27 RECEIVED NYSCEF: 09/15/2020 11/24/2020 19. In fact, the hospitals were never overwhelmed by a population of those suffering from Covidl9 and struggled financially until they were allowed to continue providing elective procedures. "curve" 20. In fact, the was flattened as those dying of Covidl9 plummeted in number causing policy makers to stop reporting the mortality rates and instead start to report the number of those who had contracted the virus instead. 21. In fact, of the approximately 180,000 deaths in the US, only 6% had Covidl9 as the only cause mentioned. 94% of Covidl9 victims had an average of 2.6 comorbidities. Rational minds would conclude that the death rate from Covidl9 has been greatly exaggerated. Exhibit E: Center for Disease Control and Prevention Weekly Updates by Demographic and Geographic Characteristics dated August 19, 2020. 22. Governing leaders, embarrassed by how much they had overstated the effects of Covid19, and being too proud to simply admit they were wrong, changed the rhetoric about the virus and increased the restrictions on business, education and public life in an "protect" effort to The People. Schools, colleges and universities, performance halls, food establishments, sports stadiums, churches and even the Courts were closed. Landlords were restricted from attempting to evict tenants, for any reason. The public was forced to wear masks or risk being arrested. Stores were forced to operate at levels that were not financially feasible. 23. In the meantime, while the masses obeyed the goveming leader's directive to mask" "maintain a distance of 6 feet apart or wear a in order to prevent the spread of Covidl9, many of those constituting The People saw through the entire sham and simply 6 of 16 FILED: SENECACOUNTY YATES COUNTYCLERK CLERK11/24/2020 09/15/202005:01 10:38PM AM INDEX INDEXNO. NO.2020-5139 20200238 NYSCEF DOC. NO. 2 27 RECEIVED NYSCEF: 09/15/2020 11/24/2020 refused to be muzzled the government - time has borne out that The People got itright by again. 24. The mortality rate for children, young adults and those up to forty-five years of age is mathematically nearly zero (0) percent, for those forty-five to seventy years is anywhere from .05 to .3 of a percentage point, and only for those over 70 years of age of mathematical significance. Exhibit F: The Washington Examiner, Stanford Doctor: Coronavirus fatality rate for people under 45 'almost O'. 25. science has discovered that the immune system has developed Sars- Emerging COV2 specific antibodies that are long lasting and will lead to heard immunity from the virus. Exhibit G: The Seattle Times, article dated August 18, 2020. 26. As deaths due to Covidl9 decreased significantly and plateaued at an extremely low level, businesses were allowed to slowly start reopening; of note, there has been no escalation of deaths. 27. Schools and institutions of higher learning, the epicenter of public life in the United States, having been closed during the crisis, contemplated re-opening for the Fall semester of 2020, subject to crippling rules being arbitrarily ordered by the Respondent with no scientific basis, in fact, for formulating said rules. 28. The doctors of the Panoramic Pediatric Group in Rochester, New York, placed a statement on their web-site in support of re-opening schools only to remove their statement and make an apology for same less than one day later, upon information and belief, under political pressure being exerted against them by the Defendant/Respondent's agents, being entirely political in nature. Exhibit H, Panoramic Pediatric Group Statement Supporting Reopening of Schools. 7 of 16 FILED: SENECACOUNTY YATES COUNTYCLERK CLERK11/24/2020 09/15/202005:01 10:38PM AM INDEX INDEXNO. NO.2020-5139 20200238 NYSCEF DOC. NO. 2 27 RECEIVED NYSCEF: 09/15/2020 11/24/2020 29. The fact is,experts the world over as well as right here in Upstate New York have stated publicly to policy makers that children are at extremely low risk of Covidl9 and that they are at greater risk for many reasons if they are not in school. Exhibit I: Open Letter from 24 medical doctors in the Rochester, New York, region, posted July 14, 2020. 30. The fact is,children will not understand why they are being forced to be socially distant from their classmates or wear masks even if school districts are able to transport the kids to school given the exaggerated safety precautions being required by the Defendant. In light of the extremely low risk Covidl9 poses to them students should not be forced to wear masks as they sit in classrooms, get their physical activity and learning in physical education classes and project their voices as they sing, play instruments or present oral speeches or answer questions. 31. Dr. Clayton Baker, one of the signers of the open letter referenced herein above, has further stated that decisions regarding the details of school re-openings should be made in an update to the prior letter based on what has been proven scientifically locally over the last months. Exhibit J: Affidavit of Clayton Baker, M D., dated August 25, 2020. 32. The fact the American People understand risk and it is inherent in the rights is, We possess in our nation's Constitution to be able to take appropriate steps to limit risks whether for those who are vulnerable and need protection or for those who are not likely more than just a fear of of Covidl9 - it at risk. That amelioration of risk includes dying includes all of the well documented consequences of living life being socially distant, muzzled a mask, and economically destroyed. Exhibit K: Center for Disease Control by and Prevention, and Mortality Weekly Report dated August 14, 2020. Morbidity 8 of 16 FILED: SENECACOUNTY YATES COUNTYCLERK CLERK11/24/2020 09/15/202005:01 10:38PM AM INDEX INDEXNO. NO.2020-5139 20200238 NYSCEF DOC. NO. 2 27 RECEIVED NYSCEF: 09/15/2020 11/24/2020 33. The evidence proves that the public health emergency of Covidl9 has ended and with it whatever powers, whether legitimate or otherwise, Defendant/Respondent possessed to enact emergency legislation. Accordingly, it is now up to our legislators to enact any laws they deem appropriate to protect The People as our duly elected leaders. Safeguards for our citizens, whether students in schools, parents at work, or the elderly in nursing homes, should be overseen by local leadership instituting reasonable and rational measures in concert with laws generated by our elected legislators. AS AND FOR A FIRST CAUSE OF ACTION (Declaratory Relief under Article 3001 of the CPLR) 34. Plaintiffs/Petitioners incorporate all preceding paragraphs as though set forth fully herein. 35. The safety protocols for children returning to school should be made at the local school district level not by a governing leader who resides in or around Albany or New York City. There is a vast difference between issues being faced by inner city school districts and those in agricultural communities in Upstate New York. 36. It isa violation of every student's Constitutional Right to Due Process pursuant to 14* the Amendment of the United States Constitution for a governor and/or health commissioner to be controlling the details of classrooms everywhere in the State of New York. Lawmakers at all levels with time for input from constituents should be the ones making laws regarding our students if any laws are, in fact, necessary. 37. The New York State Constitution provides that every local government "shall thereof" have a legislative body elected by the people (N.Y. Constitution art. IX, 9 of 16 FILED: SENECACOUNTY YATES COUNTYCLERK CLERK11/24/2020 09/15/202005:01 10:38PM AM INDEX INDEXNO. NO.2020-5139 20200238 NYSCEF DOC. NO. 2 27 RECEIVED NYSCEF: 09/15/2020 11/24/2020 Section 1(a). The Defendants/Respondents have continued to mandate allsorts of rules that are an unconstitutional delegation of the "fundamental policy-making responsibility" of the legislature, in violation of the separation-of-powers doctrine. See N.Y Statewide Coalition of Hispanic Chambers of Commerce, 23 N.Y. 3d at 693-695; Cf. Boreali, 71 N.Y. 2d at 9. AS AND FOR A SECOND CAUSE OF ACTION (Declaratory Relief under Article 3001 of the CPLR) 38. Plaintiffs/Petitioners incorporate all preceding paragraphs as though set forth fully herein. 39. Itis a violation of the Freedom of Religion and Freedom of Assembly clauses of the First Amendment of the United States Constitution for the Defendants/Respondents to have restricted the People from attending houses of worship and the Defendants/Respondents should be enjoined from any attempts to re-institute any such restrictions in the future. AS AND FOR A THIRD CAUSE OF ACTION Relief under Article 3001 of the CPLR) (Declaratory 40. Plaintiffs/Petitioners incorporate allpreceding paragraphs as though set forth fully herein. 41. It isa violation of the Freedom of clause of the First Amendment of the Assembly United States Constitution for the Defendants/Respondents to restrict the People from performances in performance halls and sports events at stadiums and they attending 10 of 16 FILED: SENECACOUNTY YATES COUNTYCLERK CLERK11/24/2020 09/15/202005:01 10:38PM AM INDEX INDEXNO. NO.2020-5139 20200238 NYSCEF DOC. NO. 2 27 RECEIVED NYSCEF: 09/15/2020 11/24/2020 should be enjoined from placing restrictions on same now that the threat of Covidl9 is greatly reduced and much better understood. AS AND FOR A FOURTH CAUSE OF ACTION (Declaratory Relief under Article 3001 of the CPLR) 42. Plaintiffs/Petitioners incorporate allpreceding paragraphs as though set forth fully herein. 43. It isa violation of the Taking Clause of the Fifth Amendment of the United States Constitution for the Defendants/Respondents to restrict the number of customers businesses are allowed to serve or to place restrictions such as the use of mask on customers such that it makes it likely that many customers will simply not patronize establishments thus making it not financially feasible to do business. Plaintiff/Petitioners' businesses have lost significant revenue due to the restrictions. 44. The Defendants/Respondents should be enjoined from placing such restrictions on business owners given that the threat of Covidl9 is greatly reduced and much better understood. AS AND FOR A FIFTH CAUSE OF ACTION (Declaratory Relief under Article 3001 of the CPLR) 45. Plaintiffs/Petitioners incorporate all preceding paragraphs as though set forth fully herein. 46. It isa violation of the Taking Clause of the Fifth Amendment of the United States Constitution for the Defendant/Respondent to restrain landlords from evicting tenants from privately owned real estate whether for failure to pay rent or otherwise breaching 11 of 16 FILED: SENECACOUNTY YATES COUNTYCLERK CLERK11/24/2020 09/15/202005:01 10:38PM AM INDEX INDEXNO. NO.2020-5139 20200238 NYSCEF DOC. NO. 2 27 RECEIVED NYSCEF: 09/15/2020 11/24/2020 the terms of a lease and otherwise the lives of other tenants in leased imperiling structures. NO PRIOR APPLICATION No prior application has been made for the relief requested herein. RELIEF SOUGHT (a) Allowing local school districts to make rules deem any they appropriate to safeguard the return of children to schools and the enjoining Defendants/Respondents from instituting any such rules further rule leaving