FILED: SCHUYLER COUNTY CLERK 09/03/2020 06:56 PM INDEX NO.

e2020-0105
NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 09/03/2020

NEW YORK STATE, SUPREME COURT

COUNTY OF SCHUYLER

Michael Myers,

Plaintiff/Petitioner,
COMPLAINT & ARTICLE 78
VERIFIED PETITION
v.
Index No.

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.

Plaintiffs/Petitioners, 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.

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.

1 of 12
FILED: SCHUYLER COUNTY CLERK 09/03/2020 06:56 PM INDEX NO. e2020-0105
NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 09/03/2020

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 is a physical education teacher at Groton Central School

District in Tompkins County and is a resident of Schuyler County. Plaintiff/Petitioner, as

a coach and an advocate of athletics, regularly attends sports events in gymnasiums and

sports complexes. Plaintiff/Petitioner, has coached teams from youth leagues to

collegiate level and is an advocate for those venues to be open and the students to be able

to develop social, emotional, and physical skills. With the mandates being handed down

by the Defendants/Respondents, my students will be harmed greatly in their social,

physical, emotional, and other forms of development.

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

2 of 12
FILED: SCHUYLER COUNTY CLERK 09/03/2020 06:56 PM INDEX NO. e2020-0105
NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 09/03/2020

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 early months of 2020, the Center for Disease Control ("CDC") identified

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.

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 warned 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

3 of 12
FILED: SCHUYLER COUNTY CLERK 09/03/2020 06:56 PM INDEX NO. e2020-0105
NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 09/03/2020

17 March 2020. Being rational citizens, The People took this advice and took
seriously

drastic measures to reduce risks by staying home and exercising social distancing.

13. While finding it annoying and economically damaging, The People followed the

directives of governing leaders and shuttered our stores and ceased convening in public in

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.

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 it was 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.

4 of 12
FILED: SCHUYLER COUNTY CLERK 09/03/2020 06:56 PM INDEX NO. e2020-0105
NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 09/03/2020

18. According to Dr Birx, Covid19 advisor to the White House, the CDC has used a

accounting"
"liberal of Covidl9 deaths, there being no distinction of dying with Covid19

or dying from Covidl9. The Chinese medical scientists quickly realized Antigen/PCR

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, Covid19 Alert No. 2, dated March 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.

5 of 12
FILED: SCHUYLER COUNTY CLERK 09/03/2020 06:56 PM INDEX NO. e2020-0105
NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 09/03/2020

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 governing 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

refused to be muzzled the government - time has borne out that The People got it right
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.

6 of 12
FILED: SCHUYLER COUNTY CLERK 09/03/2020 06:56 PM INDEX NO. e2020-0105
NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 09/03/2020

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.

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 locally in an update to the prior letter based on what has been proven scientifically

over the last months. Exhibit J: Affidavit of Clayton Baker M D., dated August 25, 2020.

32. The fact is, the American People understand risk and it is inherent in the rights

We possess in our nation's Constitution to be able to take appropriate steps to limit risks

7 of 12
FILED: SCHUYLER COUNTY CLERK 09/03/2020 06:56 PM INDEX NO. e2020-0105
NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 09/03/2020

whether for those who are vulnerable and need protection or for those who are not likely

at risk. That amelioration of risk includes more than just a fear of of Covidl9 - it
dying

includes all of the well documented consequences of living life being socially distant,

muzzled by a mask, and economically destroyed. Exhibit K: Center for Disease Control

and Prevention, Morbidity and Mortality Weekly Report dated August 14, 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.

8 of 12
FILED: SCHUYLER COUNTY CLERK 09/03/2020 06:56 PM INDEX NO. e2020-0105
NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 09/03/2020

36. It is a violation of every student's Constitutional Right to Due Process pursuant to

14th
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,

Section 1(a). The Defendants/Respondents have continued to mandate all sorts 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. The safety protocols for college students returning to colleges and universities

across the State should be made by the leadership of colleges and universities themselves

not by governing administrators who reside in or around Albany or New York City.

40. It is a violation of every student's Constitutional Right to Due Process pursuant to

14th
the Amendment of the United States Constitution for a governor or health

commissioner to be controlling every detail of every college and university

9 of 12
FILED: SCHUYLER COUNTY CLERK 09/03/2020 06:56 PM INDEX NO. e2020-0105
NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 09/03/2020

classroom everywhere in the State of New York. Lawmakers at all levels with

time for input from constituents should be the ones making laws regarding safety

for our college and university students if any laws are, in fact, necessary.

AS AND FOR A THIRD CAUSE OF ACTION

(Declaratory Relief under Article 3001 of the CPLR)

41. Plaintiffs/Petitioners incorporate all preceding paragraphs as though set forth

fully herein.

42. It is a violation of the Freedom of Assembly clause of the First Amendment of the

United States Constitution for the Defendants/Respondents to restrict the People

from attending performances in performance halls and sports events at stadiums

and they should be enjoined from placing restrictions on same now that the threat

of Covidl9 is greatly reduced and much better understood.

43.

NO PRIOR APPLICATION

No prior application has been made for the relief requested herein.

RELIEF SOUGHT

(a) Allowing local school districts to make any rules they deem

appropriate to safeguard the return of children to schools and enjoining the

Defendants/Respondents from instituting any such rules leaving any further rule making

to the legislature.

10 of 12
FILED: SCHUYLER COUNTY CLERK 09/03/2020 06:56 PM INDEX NO. e2020-0105
NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 09/03/2020

(b) Allowing the institutions themselves to make any rules they deem

appropriate to safeguard the return of college students to colleges and universities and

enjoining the Defendants/Respondents from instituting any such rules leaving any further

rule making to the legislature.

(c) Enjoining the Defendants/Respondents from restricting access to

performance halls or athletic events or from instituting safety rules therein.

(d) Such other and further relief as to the Court seems just and proper.

WHEREFORE, based on the foregoing, this Honorable Court should enjoin the

Defendants/Respondents from making any further rules or policies and to vacate all prior

rules and policies made under the emergency powers in response to Covidl9 unless and

until the Defendants/Respondents are able to provide the actual numbers of those who

have died of Covidl9 in New York State with their ages and underlying medical

conditions, if any, such that this Court can decide whether a public health emergency still

exists and, if so, whether those at risk are able to be protected from same without

continuing to violate the Freedoms and Constitutional Rights of The People.

Respectfully submitted,

Carl J. Schwartz, Jr., Esq.

Attorney for Plaintiffs/Petitioners

P.O. Box 681
Penn Yan, New York 14527
carlschwartz@fingerlakeslawaroup.com

(315) 536-4223 phone

(315) 536-3603 fax

11 of 12
FILED: SCHUYLER COUNTY CLERK 09/03/2020 06:56 PM INDEX NO. e2020-0105
NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 09/03/2020

VERIFICATION OF COMPLAINT & ARTICLE 78 PETITION

STATE OF NEW YORK )

COUNTY OF E4ff f ) to wit:

I, Michael Myers, plaintiff/petitioner, being duly sworn, depose and say that I have read
the Complaint/Petition and reviewed the exhibits attached thereto, and know the contents

thereof; that the same is true to the knowledge of deponent, except as to the matters
therein stated to be alleged upon information and belief, and as to those matters I believe

them to be true.

Mic Myers ntiff/petitioner

me this 3 5
Sworn to before day of , 2020.

Notary Public

CARL J. SCHWARTZ JR.

NOTARY PUBLlC. STATE OF NEW YORK
Q UALIFlED IN YATES COUNTY, #5011068
COMMiSSION EXPlRES APRIL 12, 209

12 of 12