NY Mandate Lawsuits Update 5-9-23


***Make sure to come to Albany on May 16 and oppose the MINOR CONSENT BILL! Get all info here***

Excellent Interview of two amazing NY Medical Freedom Attorneys! Below is a summary of the most important points from the interview, but you should definitely watch the full interview: there are some gems in the interview not covered below.

All of the multi-plaintiff lawsuits referenced below are backed by Children’s Health Defense with the exception of the Garvey case which is represented by Chad LaVeglia and the Keil case represented by Nelson, Madden, Black.

Notably at the end of this summary is a pathway to still sue NYC on an individual basis if you so choose to do so by contacting http://www.ExemptionLawyer.com

Watch the full interview at CHD TV here


Important Court Dates people need to show up for:

  1. May 18, 2023, 10am: DiCapua v. City of New York (Teachers for Choice is a named plaintiff in this case) Richmond County Supreme Courthouse
  2. May 24, 2023, 10am: Medical Professionals for Informed Consent v. Mary T. Bassett Appellate Division – Fourth Department in Rochester, NY)


Summaries & Updates on major Multi-Plaintiff Medical Mandate Cases in NY:

Kane v. de Blasio – This case is on behalf of DOE employees denied reasonable religious accommodation. It was dismissed in late August 2022 and is on appeal in the Second Circuit (consolidated with Keil v. City of New York represented by Nelson, Madden, Black in the district court). The case was appealed to the 2nd Circuit Court and argued in conjunction with NYRFL on February 8th, 2023. It has been 3 months and the judges have yet to rule on the case. A ruling is anticipated soon but it is at the judges discretion.

New Yorkers for Religious Liberty (NYFRL) v. City of New York – This case was filed on behalf of all NYC employees denied reasonable religious accommodation. This case is still ongoing in federal district court (Eastern District of New York). The district court denied the preliminary injunction motion. That denial is currently on appeal in the Second Circuit. The Second Circuit consolidated NYFRL and the Kane/Keil cases on appeal because of overlapping legal questions. The cases are fully briefed and argued on expedited appeal but as yet no decision. It has been 3 months and the judges have yet to rule on the case. A ruling is anticipated soon but it is at the judges discretion.

DiCapua v. City of New YorkTeachers for Choice is a named plaintiff in this case. This is a proposed class action lawsuit in Richmond County Supreme Court on behalf of DOE employees denied reasonable religious accommodation. It is an offshoot of Kane v. de Blasio, in which the district court declined to exercise jurisdiction over the state law claims. So these are the state law claims.  Both sides are still briefing the issues and we have oral arguments on May 18, 2023 at 12pm at the Richmond County Supreme Courthouse. Presence is welcomed and encouraged for all who can attend.

Medical Professionals for Informed Consent v. Mary T. Bassett. Lawsuit challenging legality of the NYSDOH regulation mandating vaccination for healthcare workers. We won this case in the New York Supreme Court, Onondaga County. The state appealed. Appeal is now fully briefed, and we have oral arguments in the Appellate Division – Fourth Department (in Rochester, NY) on May 24th, 2023 at 10am. The public is welcome to attend.

Garvey v. City of New York. The attorney on this case is Chad LaVeglia. This case was brought by 16 sanitation workers attacking the legality of the mandate itself. New York State Supreme Court, Richmond County, issued a decision holding that the City lacked the authority to issue the vaccine mandate or impose conditions of employment on municipal workers. The City appealed and moved for an extension of time to answer. They must perfect their appeal by June 26, 2023, and then the legal team has 30 days to submit opposing briefs and the case will be eventually scheduled for argument in the Appellate Division – Second Department.

Doe v. Franklins Square Union Free School District. This is a case involving a medical exemption to the mask mandate. Sarah Doe is a child with severe asthma, anxiety etc who was denied an exemption to the mask mandate even though her physician determined that she needed a medical exemption. The school district adopted a dangerous policy that only paraplegics could get a mask exemption. Sarah was seriously harmed and harassed. We won an accommodation for her mid-litigation, but have appealed the district court’s dismissal of the claims as somehow “moot” now – they are not, she was harmed, and there needs to be precedent so that this doesn’t happen again. Now in the Second Circuit, briefing happening soon.


Summaries & Updates on major Single-Plaintiff Medical Mandate Cases in NY: (contact at http://www.ExemptionLawyer.com)

  1. Recent Victories. Jim Mermigis, Jimmy Wagner, Jeannette, and Christina Martinez have approximately 40 court wins for unvaccinated NYC workers. Christina has won 12 so far. Notably, she recently won two DOE cases which are much harder to win than the other agencies. We have several wins regarding mootness. It is very likely the City “lifted” the mandate because they were losing these lawsuits. Afterwards, they brought motions on dozens of cases seeking to dismiss based on mootness. There is a definite split among judges right now on whether the cases are moot. 
  2. Return to job. Out of the cases that are won, most of our clients are back to work. Even the ones they are appealing, we are getting our clients back. On some of the very recent wins, we have not negotiated reinstatement yet. Out of 12 wins for Martinez, 4 are still out of work (2 firefighters, 1 NYPD Officer is in process of reinstatement, and 1 teacher). 
  3. Most of our petitioners were never put out of work due to temporary restraining orders (TROs). That’s because in the beginning of the lawsuit, we were able to get an emergency order from the court preventing the city from terminating our guys or putting them on leave without pay (LWOP). Hundreds of workers kept their jobs that way. Out of 23 Article 78s Martinez has only 5 or 6 still out of work total.
  4.  Difference per agency. NYPD has the most wins, FDNY has the best percentage, and DOE has the most losses. These cases are very different legally depending on the agency. 
  5. Article 78s: The Statue of Limitations to file an article 78 petition is 4 months from when the determination you are challenging became final and binding. So technically this should be 4 months from the denial of the exemption request. If you are challenging the termination as opposed to the exemption denial then there is a strong legal argument that in February of 2023 when the mandate was “lifted” the termination decision was revisited by the city so it was not previously final and binding. So that would be 4 months from the lifting of the mandate in February (gives till June of 2023). After that statute of limitations wears out, there is still 3 years to bring NYCHRL discrimination complaints for failure to accommodate though. 

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