Appellate Court Temporarily Blocks Repeal of Vaccine Mandate For Health Workers

The lawsuit won in the Supreme Court by Attorney Sujata Gibson  has been stayed on appeal.

MEDICAL PROFESSIONALS FOR INFORMED CONSENT, individually and on behalf of its members, KRISTEN ROBILLARD, M.D., ZAR.INA HERNANDEZ-SCHIPPLICK, M.D., MARGARET FLORINI, A.S.C.P., OLESYA GIRICH, RT(R), and ELIZABETH STORELLI, RN., individually and on behalf of others similarly situated,                                                      Petitioners-Plaintiffs,

-v-

MARY T. BASSETT, in her official capacity as Commissioner of Health for the State of New York, KATHLEEN C. HOCHUL, in her official capacity as Governor of the State of New York, and the NEWYORKSTATEDEPARTMENTOF HEALTH, VERIFIED HYBRID ARTICLE 78 AND DECLARATORY JUDGMENT PETITION Index No.008575/2022,                                                                                                                                                                     Respondents-Defendants.

“When Respondents announced their intention to codify 10 NYCRR § 2.61, and several other COVID related “emergency” regulations into permanent regulations, over forty legislators wrote to them and notified them that these actions exceeded their authority under the New York Constitution. …The letter points out: “[t]he decision to unilaterally declare these emergency regulations as permanent rules circumvents the legislative process that is enshrined in state law.” Id. at 1. Citing the New York State Constitution’s separation of powers provisions, the lawmakers stressed that “the power to entrust DOH and SED to permanently impose such mandates lies with the duly elected members of the state Assembly and Senate, not appointed commissioners.” It is notable that all three of the “emergency regulations” that the letter challenged have since been struck down as ultra vires and in violation of the separation of powers doctrine by three separate Supreme Court Justices.

The Public Health Law (“PBH”) leaves no room for confusion in this case. As this Court recognized, PBH §§ 206(1)(1) and 613 each plainly state that the Commissioner is prohibited from issuing any new vaccine mandates other than those determined by the Legislature in § 2164-2165. And this issue has already been litigated and the Court of Appeals stated in no uncertain terms that the Public Health Law preempts the NYSDOH from issuing any vaccine mandates other than those determined by the Legislature. Garcia v. New York City Dep ‘t of Health & Mental Hygiene, 31 N .Y. 3d 601, 608 (2018). Commissioner Bassett could not have been confused on this point when she approved the vaccine mandate in violation of the Public Health Law. She was the Commissioner of Health of the New York City Department of Health and Mental Hygiene and was a named Respondent/Defendant in that lawsuit. Similarly, Respondent Hochul was well aware that she lacks the power to issue edicts, and that the Governor’s emergency powers had long-since been revoked when she demanded this regulation be issued. Instead of respecting the Legislature’s clear directives, the Governor attempted to pass this and multiple other hugely impactful and controversial “emergency” mandates through her executive agencies, primarily, through the NYSDOH.

This Mandate was not justified by the science or any reasonable emergency when it was codified as permanent law in June 2022 in violation of the Public Health Law (among other laws). As this Court recognized, even the NYSDOH acknowledged that the vaccines cannot stop the spread of COVID-19.”

Judge Neri’s Order:

NOW, THEREFORE, upon reading and filing the papers with respect to the Petition.
and the Motion, the arguments, and due deliberation having been had thereon, it is hereby

ORDERED, that the motion to dismiss brought by Respondents is DENIED; and it is
further
ORDERED, that the relief sought by the Petition seeking a declaration that the Mandate,
10 NYCR §2.61, as being beyond the scope of Respondents’ authority and is therefore null, void, and of no effect, so that the Respondents, their agents, officers, and employees are prohibited from implementing or enforcing the Mandate is GRANTED; and it is further
ORDERED, that the Court reserves on Petitioners’ request for attorneys’ fees, costs, and disbursements and shall make a determination on said request upon the filing of papers as set forth hereinabove.

Dated January 13, 2023

The Appellate Division, Fourth Department, put a stay on this order:

Court Blocks Repeal of New York’s COVID Vaccine Mandate for Healthcare Workers

A New York state appellate court on Monday temporarily blocked the repeal of the state’s COVID-19 vaccine mandate for healthcare workers, but the lead attorney in a lawsuit challenging the mandate said she remains “hopeful that justice will prevail when the court considers this case on the merits.”

A New York state appellate court on Monday temporarily blocked the repeal of the state’s COVID-19 vaccine mandate for healthcare workers.

The ruling came after Gov. Kathy Hochul’s administration appealed a Jan. 13 ruling by state Supreme Court Judge Gerard Neri that struck down the statewide mandate, declaring it “null, void, and of no effect” and holding that the New York State Department of Health lacked the authority to impose it.

Judge Neri’s ruling also determined the mandate was “arbitrary and capricious” on the basis that COVID-19 vaccines do not stop transmission of the virus, thereby eliminating any rational basis for such a policy.

Following nearly a month of deliberations, a state appellate court granted Hochul’s request for the stay on the condition the appeal is finalized on or before March 20, with oral arguments on the merits of the case scheduled for May 15.

“It is extremely unfortunate that the governor and the New York State Department of Health are standing firm on their irrational healthcare worker COVID-19 shot mandate in the midst of a severe healthcare worker shortage, especially as the vaccine fails to stop disease spread,” said Mary Holland, Children’s Health Defense (CHD) president and general counsel.

“The good news is that the Appellate Division will hear the case on an expedited basis, as early as May, and will resolve the issue.”

CHD is sponsoring a lawsuit challenging the mandate. Sujata Gibson, lead counsel on the case, also commented on Monday’s ruling.

“The legal issues here are clear,” Gibson said. “Plaintiffs remain hopeful that justice will prevail when the court considers this case on the merits.”

New York’s COVID-19 mandate for healthcare workers took effect in September 2021, prompting 34,000 medical workers, or 3% of the workforce at the time, to quit or be fired instead of getting the shots.

In October 2022, Medical Professionals for Informed Consent — a group of medical practitioners affected by the mandate — and additional plaintiffs, including two doctors, a nurse, a radiologic technologist and a medical laboratory specialist sued to overturn the mandate.

The lawsuit named the state’s health department, Hochul and Mary T. Bassett, the state’s health commissioner, as defendants.

The lawsuit alleged the plaintiffs had lost — or were at imminent risk of losing — their jobs, and that several of them had religious objections to receiving the vaccine, but the mandate did not recognize those exemptions.

Betsy Combier