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FILED: YATES COUNTY CLERK 11/24/2020 05:01 PM INDEX NO. 2020-5139
NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 11/24/2020
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF YATES
In the Matter of the Petition of
CARL J. SCHWARTZ, JR., J.D.
KERRI W. SCHWARTZ, PSY.D., AFFIRMATION OF
ASSISTANT ATTORNEY
Plaintiffs/Petitioners, GENERAL
HEATHER L. MCKAY
- against - IN SUPPORT OF
STATE RESPONDENTS’
MOTION TO CONSOLIDATE
ANDREW M. CUOMO, in his official capacity as Governor
of the State of New York, HOWARD ZUCKER, in his official Index No. E2020-005139
capacity as Commissioner of Health for the State of New
York, Hon. William K. Taylor
Defendants/Respondents.
HEATHER L. MCKAY, an attorney duly licensed to practice law in the courts of the
State of New York, affirms as follows under penalty of perjury:
1. I am an Assistant Attorney General in the office of Letitia James, Attorney
General of the State of New York, attorney for Governor Andrew M. Cuomo, in his official
capacity, and Howard Zucker, the Commissioner of Health for New York State Department of
Health, in his official capacity, (collectively, “State Respondents”) in the above captioned
proceeding (“Schwartz”) and, as such, am fully familiar with the facts and circumstances set
forth below.
2. I submit this affirmation in support of State Respondents’ motion pursuant to
CPLR 602(b) to consolidate with the Schwartz proceeding and remove to this Court the
following proceedings pending in other courts:
A. Myers v. Zucker, Index No. E2020-0105 (Sup. Ct. Schuyler Cty.), filed
September 3, 2020 (“Myers”). Attached here as Exhibit 1 are true and correct
1 of 3
FILED: YATES COUNTY CLERK 11/24/2020 05:01 PM INDEX NO. 2020-5139
NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 11/24/2020
copies of the Myers Amended Order to Show Cause and Petition, excluding
exhibits, as filed on the New York State Courts Electronic Filing system.
B. Westfall v. Cuomo, Index No. 20200238 (Sup. Ct. Seneca Cty.) (“Westfall”),
filed September 15, 2020. Attached here as Exhibit 2 are true and correct
copies of the Westfall Amended Order to Show Cause and Petition, excluding
exhibits, as filed on the New York State Courts Electronic Filing system.
C. Brown v. Zucker, Index No. E2020-008106 (Sup. Ct. Monroe Cty.)
(“Brown”), filed October 15, 2020. Attached here as Exhibit 3 are true and
correct copies of the Brown Order to Show Cause and Petition, excluding
exhibits, as filed on the New York State Courts Electronic Filing system.
D. Frank v. Cuomo, Index No. CV086319 (Sup. Ct. Wayne Cty.) (“Frank”), filed
October 27, 2020. Attached here as Exhibit 4 is a true and correct copy of the
Frank Petition, excluding exhibits, as filed on the New York State Courts
Electronic Filing system.
E. Fiorini v. Cuomo, Index No. 007083/2020 (Sup. Ct. Onondaga Cty.)
(“Fiorini”), filed October 31, 2020. Attached here as Exhibit 5 are true and
correct copies of the Fiorini Order to Show Cause and Petition, excluding
exhibits, as filed on the New York State Courts Electronic Filing system.
F. Phillips v. Cuomo, Index No. 617287/2020 (Sup. Ct. Suffolk Cty.)
(“Phillips”), filed November 10, 2020. Attached here as Exhibit 6 are true
and correct copies of the Phillips Order to Show Cause and Petition,
excluding exhibits, as filed on the New York State Courts Electronic Filing
system.
G. Jeffrey v. Cuomo, Index No. [unassigned] (Sup. Ct. Wayne Cty.) (“Jeffrey”),
-2-
2 of 3
FILED: YATES COUNTY CLERK 11/24/2020 05:01 PM INDEX NO. 2020-5139
NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 11/24/2020
filed November 22, 2020. Attached here as Exhibit 7 is a true and correct
copy of the Jeffrey Petition, excluding exhibits, as filed on the New York
State Courts Electronic Filing system.
3. Attached here as Exhibit 8 is a true and correct copy of pro se Petitioner and
counsel Carl Schwartz’s letter, dated October 24, 2020, withdrawing the petition in Schwartz v.
Cuomo, Index No. E2020-5089 (Sup. Ct. Yates Cty.), filed on August 31, 2020.
4. Of the aforementioned proceedings, only one (Brown) names as respondent any
party other than the State Respondents, specifically, Adam J. Bello, as Monroe County
Executive, and Dr. Michael Mendoza, as Monroe County Commissioner of Health. See Exhibit
3. I have spoken with Adam Clark, Esq., at the Monroe County Attorney’s Office, who has
confirmed that they consent to and join in State Respondents’ motion to consolidate.
5. As discussed in detail in the accompanying Memorandum of Law, the respective
Petitions filed in Myers, Westfall, Brown, Frank, Fiorini, Phillips, and Jeffrey involve the same
legal and factual issues present in Schwartz. Accordingly, State Respondents’ motion to
consolidate under CPLP 602(b) should be granted to conserve judicial resources, and to avoid
the possibility of conflicting findings and orders.
Dated: November 24, 2020
Rochester, New York
_s/ Hea th er L. Mc Ka y_______
HEATHER L. MCKAY
Assistant Attorney General
-3-
3 of 3
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FILED: YATES COUNTY CLERK 11/24/2020 05:01 PM INDEX NO. 2020-5139 NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 11/24/2020 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF YATES In the Matter of the Petition of CARL J. SCHWARTZ, JR., J.D. KERRI W. SCHWARTZ, PSY.D., AFFIRMATION OF ASSISTANT ATTORNEY Plaintiffs/Petitioners, GENERAL HEATHER L. MCKAY - against - IN SUPPORT OF STATE RESPONDENTS’ MOTION TO CONSOLIDATE ANDREW M. CUOMO, in his official capacity as Governor of the State of New York, HOWARD ZUCKER, in his official Index No. E2020-005139 capacity as Commissioner of Health for the State of New York, Hon. William K. Taylor Defendants/Respondents. HEATHER L. MCKAY, an attorney duly licensed to practice law in the courts of the State of New York, affirms as follows under penalty of perjury: 1. I am an Assistant Attorney General in the office of Letitia James, Attorney General of the State of New York, attorney for Governor Andrew M. Cuomo, in his official capacity, and Howard Zucker, the Commissioner of Health for New York State Department of Health, in his official capacity, (collectively, “State Respondents”) in the above captioned proceeding (“Schwartz”) and, as such, am fully familiar with the facts and circumstances set forth below. 2. I submit this affirmation in support of State Respondents’ motion pursuant to CPLR 602(b) to consolidate with the Schwartz proceeding and remove to this Court the following proceedings pending in other courts: A. Myers v. Zucker, Index No. E2020-0105 (Sup. Ct. Schuyler Cty.), filed September 3, 2020 (“Myers”). Attached here as Exhibit 1 are true and correct 1 of 3 FILED: YATES COUNTY CLERK 11/24/2020 05:01 PM INDEX NO. 2020-5139 NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 11/24/2020 copies of the Myers Amended Order to Show Cause and Petition, excluding exhibits, as filed on the New York State Courts Electronic Filing system. B. Westfall v. Cuomo, Index No. 20200238 (Sup. Ct. Seneca Cty.) (“Westfall”), filed September 15, 2020. Attached here as Exhibit 2 are true and correct copies of the Westfall Amended Order to Show Cause and Petition, excluding exhibits, as filed on the New York State Courts Electronic Filing system. C. Brown v. Zucker, Index No. E2020-008106 (Sup. Ct. Monroe Cty.) (“Brown”), filed October 15, 2020. Attached here as Exhibit 3 are true and correct copies of the Brown Order to Show Cause and Petition, excluding exhibits, as filed on the New York State Courts Electronic Filing system. D. Frank v. Cuomo, Index No. CV086319 (Sup. Ct. Wayne Cty.) (“Frank”), filed October 27, 2020. Attached here as Exhibit 4 is a true and correct copy of the Frank Petition, excluding exhibits, as filed on the New York State Courts Electronic Filing system. E. Fiorini v. Cuomo, Index No. 007083/2020 (Sup. Ct. Onondaga Cty.) (“Fiorini”), filed October 31, 2020. Attached here as Exhibit 5 are true and correct copies of the Fiorini Order to Show Cause and Petition, excluding exhibits, as filed on the New York State Courts Electronic Filing system. F. Phillips v. Cuomo, Index No. 617287/2020 (Sup. Ct. Suffolk Cty.) (“Phillips”), filed November 10, 2020. Attached here as Exhibit 6 are true and correct copies of the Phillips Order to Show Cause and Petition, excluding exhibits, as filed on the New York State Courts Electronic Filing system. G. Jeffrey v. Cuomo, Index No. [unassigned] (Sup. Ct. Wayne Cty.) (“Jeffrey”), -2- 2 of 3 FILED: YATES COUNTY CLERK 11/24/2020 05:01 PM INDEX NO. 2020-5139 NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 11/24/2020 filed November 22, 2020. Attached here as Exhibit 7 is a true and correct copy of the Jeffrey Petition, excluding exhibits, as filed on the New York State Courts Electronic Filing system. 3. Attached here as Exhibit 8 is a true and correct copy of pro se Petitioner and counsel Carl Schwartz’s letter, dated October 24, 2020, withdrawing the petition in Schwartz v. Cuomo, Index No. E2020-5089 (Sup. Ct. Yates Cty.), filed on August 31, 2020. 4. Of the aforementioned proceedings, only one (Brown) names as respondent any party other than the State Respondents, specifically, Adam J. Bello, as Monroe County Executive, and Dr. Michael Mendoza, as Monroe County Commissioner of Health. See Exhibit 3. I have spoken with Adam Clark, Esq., at the Monroe County Attorney’s Office, who has confirmed that they consent to and join in State Respondents’ motion to consolidate. 5. As discussed in detail in the accompanying Memorandum of Law, the respective Petitions filed in Myers, Westfall, Brown, Frank, Fiorini, Phillips, and Jeffrey involve the same legal and factual issues present in Schwartz. Accordingly, State Respondents’ motion to consolidate under CPLP 602(b) should be granted to conserve judicial resources, and to avoid the possibility of conflicting findings and orders. Dated: November 24, 2020 Rochester, New York _s/ Hea th er L. Mc Ka y_______ HEATHER L. MCKAY Assistant Attorney General -3- 3 of 3