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Strong v. Zucker Court papers

I have placed a link to all papers filed by me in my federal lawsuit aginst the New York State Dept. of Health on this page.

The lawsuit was originally filed on Aug. 10, 2021 against regulations adopted in July that required that Unvaccinated people to continue to wear masks, while vaccinated people were allowed to go mask free. The original complaint can be found here:

http://www.geneseegraphics.com/StrongvZuckercomplaint.pdf

On Aug. 27, th State repealed the rule I had complained of. Subsequently I filed an amended complaint on Oct. 13. This new filing went after unequal testing protocols and also took aim at the State's Excelsior Pass program:

http://www.geneseegraphics.com/AmendedcomplaintStrongvZucker.pdf

The State originally had 60 days to reply to the complaint and on Dec. 9 asked for an additional 30 days. Since it was near Christmas I agreed. The very next day, the Governor announced new "Emergency Regulations" that were even more discriminatory against the Unvaxxed than the original regulation. These regulaions allowed businesses to bar the Unvaxxed from their premises while allowing the Vaccinated in without a mask.

On Dec. 13, I filed a motion for a Temporary Restraining order and/or Preliminary Injunction against the new regulations:

http://www.geneseegraphics.com/TRO-1.pdf

In relation to that motion, I was required to file a legal memorandum in support of the motion:

http://www.geneseegraphics.com/memorandumoflaw.pdf


I was also required to file a statement of what expert witnesses I planned to call and what they would testify to. I decided that I would only need one witness, Dr. Peter McCullough, perhaps the world's foremost expert on Covid-19. Here is my statement about him:

http://www.geneseegraphics.com/expert.pdf


The Judge gave the State until Jan. 10 to reply to my motion for a TRO. They finally did on Jan. 11. Subsequently I filed a response to their answer.

http://www.twooldmeninchairs.com/ResponsetoAG.pdf


On March 28, Judge Larimer granted a dismissal of my case for "failure to state a claim." I will be publishing a video response to the decision shortly. I am studying the decision and hopefully will be appealing to the 2nd Circuit.

http://www.twooldmeninchairs.com/dismiss.pdf


Judge Denies TRO

Judge Larimer declined to issue a Preliminary Injunction in my case Strong v. Zucker. In a decision issued on Jan. 27, he stated that I had not shown irreparable harm would ensue if the Injunction was not issued nor had I shown that I was likely to prevail on the merits.

I was particularly disappointed that he choose to apply a "Rational basis" standard to judge the State's actions and that he thought Jacobson vs. Massachussetts (1905) was good precedent, despite my strenuous arguments agains both positions.

Below is a link to the text of the decision. I was not able to get a clean PDF version off the court's website so I was forced to copy and paste it. This resulted in the court's footnotes getting mixed up in the text. I tried to fix what I could but there are some incomplete sentences. In any case, I think the gist of the argument is there, Including the Judge's diss of my claim to be medically unable to tolerate a mask.

http://www.twooldmeninchairs.com/decision.pdf


On Feb. 10 the Governor decided not to renew the "Emergency Regulations" enacted on Dec. 10. This does not end my lawsuit because I am also seeking the end of other Discriminatory practices that are ongoing, including unequal testing protocols for the Unvaxxed. I am also asking the court to shut down the Excelsior Pass program.

On February 14, instead of filing an Answer to my Complaint, the State filed a Motion to Dismiss for Failure to State a Claim. Below is my Reply to that Motion filed on Feb. 26.

http://www.TwoOldMeninChairs.com/ReplyDismiss.pdf

I also filed two Appendixes to my Reply. Appendix 1 contains footnotes that I didn't have room for in my reply due to court rules liniting my reponse to 25 pages:

http://www.TwoOldMeninChairs.com/Appendix1.pdf

The second Appendix included my list of 75 businesses and venues that had been discriminating against the Unvaxxed by denyijng entry. Thanks to my friends on my Unvaxxed Facebook page for helping my compile the list and provide other examples of discrimination. I couldn't have done it without you!

http://www.TwoOldMeninChairs.com/Appendix2.pdf

The State now had 8 days to respond to my reply, after which the Court will decide whether to hold a hearing.

State Court Strikes down mask mandate

In a related matter, on Jan. 24, 2022, a Supreme Court decision in Nassau County, NY struck down the regulations that I was complaining of in my motion for a Preliminary Injunction. Some may wonder how that affects my case. Below is a memo that I filed with the court. The judges order has been stayed by higher courts until an appeal of the case can be heard probably in March.


UPDATE  TO MEMORANDUM OF LAW


1. As the court may know, a Supreme Court Judge in Nassau County, NY ruled yesterday in the case of Demetriou et. al. vs. NYS Dept of Health et. al. that the “Emergency Regulations” issued on Dec. 10 by the NYS Health Department and the underlying regulation adopted on Aug. 27, 2021 as 10 NYCRR 2.60 were both Unconstitutional, Null and Void. (The full decision can be found at https://iapps.courts.state.ny.us/nyscef/ViewDocument?docIndex=KWZlYMu6TLX3tP7Uen/3yA==)


2. Judge Thomas Rademaker found that the Health Department exceeded its authority in imposing these rules which would require an Act of the legislature. Although the case was brought against the mask mandate for school children, the Judges ruling enjoins all parts of the Dec. 10 regulations as the court found that the entire underlying 10 NYCRR 2.60 /2.60a to be void.


3. This ruling, if it stands, would presumably eliminate the authorization for businesses to discrimination against the Unvaccinated by denying them entry to any space that maintains a “Vaccinated Only” admission policy, since that was part of the Dec. 10 regulations.


4. It can be expected that the State will appeal to try to uphold their regulations and the Governor has already vowed to do so. Apparently there is another recent Supreme Court decision in Albany County that upheld the regulations in the case of Massapequa UFSD et.al. v. Hochul, et. al. although Plaintiff is unable to find that case reported.


5. It is possible that a NY Appellate Court may issue a stay against the Nassau Judge decision and that the decision may ultimately be overturned on appeal. Accordingly, this decision should have no impact on the this court’s moving forward on Plaintiff’s application for a TRO/Preliminary Injunction.


6. The discrimination against the Unvaccinated will continue to grow and the State will certainly not instruct any property owner to change their policies. The State Department of Education has already tried to instruct all school districts in the state to continue to enforce the mask mandate, despite this clear decision.


7. In addition, as noted in Plaintiff’s Motion, Legal Memorandum and Reply to the Defendant’s Legal Memorandum, Plaintiff’s motion sought more than just the removal of the Dec, 10 regulations. Plaintiff is also seeking the elimination of the state’s Excelsior Pass program and all other discriminatory rules and program against the Unvaccinated, including unequal Covid-19 testing protocols.


8. While Judge Rademaker’s decision rests on a legal technicality, this court’s decision must rest on a broad principle of Constitutional Law that Equal Protection does not allow such discrimination against the Unvaccinated, especially against those with “Natural Immunity,”


9. In that regard, a study released by the CDC on Wed, Jan 22, found that in NYS the Unvaccinated were 14.7 times less likely to be infected with the Delta variety than the vaccinated. The study was released in the CDC’s Morbidity and Mortality Weekly Report (MMWR) for the Week of Jan. 20, 2022.


      By

January 25, 2022                                          s/Michael Corrin Strong

                                                                         Plaintiff, Pro Se