1.
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NIAGARA
-X
LORAINE HUMPHREY, Individually and as Parent and
Natural Guardian of J.H.-G., and on Behalf of all
Others Similarly Situated,
Plaintiffs,
Against
SUMMONS
ANDREW M. CUOMO, in his Official Capacity as Governor
of the State of New York, ATTORNEY GENERAL OF THE Index No.:
STATE OF NEW YORK, HOWARD ZUCKER, in his Official
Capacity as Commissioner of Health of the State of New York, Date Purchased:
NEW YORK STATE DEPARTMENT OF HEALTH,
NEW YORK STATE PUBLIC HIGH SCHOOL ATHLETIC
ASSOCIATION, DR. ROBERT ZAYAS, in his Official Capacity Venue: CPLR 503a
as Executive Director of the N.Y.S.P.H.S.A.A., TODD
SANTABARBARA, in his Official Capacity as Director of
Section I, ED DOPP, in his Official Capacity as Director of
Section II, JOHH RATHBUN, in his Official Capacity as
Director of Section III, BEN NELSON, in his Official Capacity
As Director of Section IV, KATHY HOYT, in her Official
Capacity as Director of Section V, TIMM SLADE, in his
Official Capacity as Director of Section VI, MATTHEW
WALENTUK, in his Official Capacity as Director of
Section VII, PAT PIZZARELLI, in his Official Capacity as
Director of Section VIII, GREG RANSOM, in his Official
Capacity as Director of Section IX, CARL NORMANDIN,
In his Official Capacity of Section X, TOM COMBS, in his
Official Capacity as Director of Section XI, CATHOLIC
HIGH SCHOOL ATHLETIC ASSOCIATION and THE
STATE OF NEW YORK,
Defendants.
-X
TO THE ABOVE NAMED DEFENDANTS
PLEASE TAKE NOTICE THAT YOU ARE HEREBY SUMMONED to
answer the complaint in this action and to serve a copy of your answer, or, if the
complaint is not served with this summons, to serve a notice of appearance on the
Plaintiffs'
attorneys within twenty days after the service of this summons, exclusive of
the day of service, where service is made by delivery upon you personally within the
state, or, within thirty (30) days after completion of service where service is made in any
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2.
other manner. In case of your failure to appear or answer, judgment will be taken against
you by default for the relief demanded in the complaint.
YOU ARE HEREBY NOTIFIED THAT should you fail to serve a notice of
appearance or demand for a complaint, a declaratory judgment will be entered against
you by default for the relief demanded herein
Dated: Syosset, NY
September 27, 2020
The M igi Law Group, P.C.
By: a G. Mermigis, Esq.
ttorneys for Plaintiff
85 Cold Spring Road
Suite 200
Syosset, NY 11791
(516) 353-0075
TO:
Andrew M. Cuomo
Governor
Attorney General of New York
State of New York
Capitol
Albany, New York 12224
Howard A. Zucker, M.D., J.D.
New York State Department of Health
Corning Tower
Empire State Plaza
Albany, New York 12237
Dr. Robert Zayas
N.Y.S.P.H.S.A.A.
8 Airport Park Blvd.
Latham, New York 12110
CHSAA
6100 Francis Lewis Boulevard
Fresh Meadows, New York 11365
Todd Santabarbara
450 Mamaroneck Avenue
Harrison, New York 10528
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3.
Ed Dopp
433 Broadway, Suite 301
Saratoga Springs, NY 12866
John Rathbun
4983 Brittonfield Pkwy
E. Syracuse, New York 13057
Ben Nelson
43 Pearl Street, Suite 1
Sidney, New York 13838
Kathy Hoyt
131 Drumlin Court- Maple Building
Newark, New York 14513
Timm Slade
355 Harlem Road
West Seneca, New York 14224
Matthew Walentuk
PO Box 455
Plattsburgh, New York 12901
Pat Pizzarelli
71 Clinton Road
Garden City, New York 11530
Greg Ransom
53 Gibson Road
Goshen, New York 10924
Carl Normandin
40 West Main Street
Canton, New York 13617
Tom Combs
180 E. Main Street, Suite 302
Smithtown, New York 11787
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4.
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NIAGARA
X
LORAINE HUMPHREY, Individually and as Parent and
Natural Guardian of J.H.-G., and on Behalf of all
Others Similarly Situated,
Plaintiffs, Index No.:
Against
CLASS-ACTION COMPLAINT
ANDREW M. CUOMO, in his Official Capacity as Governor
of the State of New York, ATTORNEY GENERAL OF THE
STATE OF NEW YORK, HOWARD ZUCKER, in his Official
Capacity as Commissioner of Health of the State of New York,
NEW YORK STATE DEPARTMENT OF HEALTH,
NEW YORK STATE PUBLIC HIGH SCHOOL ATHLETIC
ASSOCIATION, DR. ROBERT ZAYAS, in his Official Capacity
as Executive Director of the N.Y.S.P.H.S.A.A., TODD
SANTABARBARA, in his Official Capacity as Director of
Section I, ED DOPP, in his Official Capacity as Director of
Section II, JOHH RATHBUN, in his Official Capacity as
Director of Section III, BEN NELSON, in his Official Capacity
As Director of Section IV, KATHY HOYT, in her Official
Capacity as Director of Section V, TIMM SLADE, in his
Official Capacity as Director of Section VI, MATTHEW
WALENTUK, in his Official Capacity as Director of
Section VII, PAT PIZZARELLI, in his Official Capacity as
Director of Section VIII, GREG RANSOM, in his Official
Capacity as Director of Section IX, CARL NORMANDIN,
In his Official Capacity of Section X, TOM COMBS, in his
Official Capacity as Director of Section XI, CATHOLIC
HIGH SCHOOL ATHLETIC ASSOCIATION and THE
STATE OF NEW YORK,
Defendants.
X
Plaintiffs, by their attorneys, The Mermigis Law Group, P.C., upon information and
belief, complain as follows:
1
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5.
On March 7, 2020, Governor Andrew M. Cuomo declared a state of emergency in the
State of New York. The lockdowns then imposed by the Governor in response to the Covid-19
pandemic are unprecedented and have never been used before in response to any other disease in
our history.
Broad population-wide lockdowns are such a dramatic inversion of the concept of liberty
in a free society as to be nearly presumptively unconstitutional unless the government can truly
demonstrate that they burden no more liberty than is reasonably necessary to achieve an
important government end.
What were initially billed as temporary measures necessary to "flatten the
curve"
and
protect hospital capacity have become open-ended and ongoing restrictions aimed at a very
different end-
stopping the spread of an infectious disease and preventing new cases from
arising- which requires ongoing and open-ended efforts.
New York began a careful, data-driven reopening over four months ago, and the results
have been exceptional. The state's positivity rate has held steady at 1% throughout the summer
because New Yorkers have remained vigilant while many students have played in private sports
leagues, organizations and camps throughout the summer. Thousands of high school football
players were anticipating playing football this fall.
According to Governor Cuomo, New York is the safest place on the globe.
On August 24, 2020, Governor Cuomo announced that "lower
risk"
sports like soccer and
field hockey can begin playing games on September 21, 2020, but higher risk sports like football
will not be permitted to play. This announceinent was made almost three months after Governor
Cuomo announced that they had flattened the curve.
On September 9, 2020, the New York State Public High School Athletic Association
announced that Fall High School Football would be cancelled.
The decision to cancel high school football affects over 50,000 high school football
student athletes throughout the State.
This civil action challenges the decision to cancel fall football and seeks declaratory and
injunctive relief for deprivations sustained by Plaintiff, and all other similarly situated.
2
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6.
INTRODUCTION
1. According to the CDC, the Coronavirus survival rates for young people 0-19 yrs
old is 99.997%.1 The survival rates for people 20-49 yrs old is 99.98%.
2. On June 6, 2020, Governor Cuomo tweeted the following, "We did the
impossible. We didn't just flatten the curve-we crushed
it." #NYTough.2
3. On June 25, 2020, in an interview with CNN, Governor Cuomo stated, "We did
the right thing and New Yorkers paid a terrible cost. They have been locked up. They have been
closing their businesses. We have the virus under controlfinally. We had to flatten the curve."3
4. On July 20, 2020, in a press conference in Savannah, GA., Governor Cuomo
stated, "So New York- yes we got the virus under control and we're now down to one of the
lowest infection rates on the globe."4
5. On August 24, 2020, Governor Cuomo announced that "lower
risk"
sports like
soccer and field hockey can begin playing games on September 21, 2020, but higher risk sports
like football will not be permitted to play.
6. On September 9, 2020, the New York State Public High School Athletic
Association announced that Fall High School Football would be cancelled.
7. Fall High School Football is now cancelled in New York State despite the
Governor saying:
(a) we didn't flatten the curve, we crushed it; and
(b) we have the virus under control; and
(c) New York has the lowest infection rate on the globe; and
(d) the lowest hospitalization rates since early March.
____________ _____
1 CDC.cov
2 Governor Andrew M. Cuomo, Twitter, June 6, 2020.
3
CNN.com, June 25, 2020. Interview with Governor Andrew M. Cuomo.
4
governor.ny.aov, July 20, 2020
3
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7.
8. Fall High School Football has been shuttered as well as the hopes and dreams of
many New York student athletes looking to earn a football scholarship for college. Fall High
School football is played
"intrastate"
in a state that has the lowest infection rate in the country.
9. The Division 1 signing period or letter of intent dates for college seniors are:
(a) Early signing
period- 12/16/20- 12/18/20
(b) Regular period - 2/3/20 - 4/1/21.
10. Fall High School Football is being played in the neighboring state of New Jersey,
Pennsylvania and thirty four (34) other states throughout the United States.5
11. Just recently, Michigan, Colorado, Minnesota, Delaware and Maryland reversed
their initial rulings not to play and are now playing fall high school football.
12. I can only ask the Governor the following question: "How can New Yorkers be
NY tough if 36 other states are playing high school football and New York high school students
are relegated to flag
football?"
13. Student athletes from the states that are playing high school fall football will have
a significant advantage by showcasing their talents for college football scholarships over New
York student athletes who will remain shuttered in the state that has the best infection rate in the
country according to the governor.
14. Syracuse University can play college football in Atlantic Coast Conference with
home games in a dome and many interstate games in North Carolina, South Carolina and
Kentucky. All three states are on the travel advisory list which further proves the hypocrisy in all
of this.
15. The University of Buffalo can play college football in the MAC conference.
16. The NFL including the Buffalo Bills, the New York Giants and Jets can play a full
16 game schedule this fall. The aforementioned teams will have to travel out of state to play
eight games each.
17. The high contact sport of high school soccer is allowed to proceed in the fall. One
can argue that soccer can be as physical and high risk as football.
5 maxpreps.com
4
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8.
18. There is NO basis in science to cancel fall high school football in New York State
while allowing NCAA football games, NFL football games and high school soccer games.
PARTIES
19. Plaintiff, LORAINE HUMPHREY, is a citizen of the State of New York and
resides in Niagara County. Plaintiff brings this action on behalf of her minor child, J.H.-G., who
attends Niagara Falls High School, and behalf of all others similarly situated. Plaintiff's child,
and others similarly situated, is a blue-chip high school football prospect who is being denied the
opportunity to play football in the fall by Defendants and will not have the opportunity to
showcase his talents to several colleges that have an interest in offering him a football
scholarship. As a result, he, and others similarly situated, is likely to lose the opportunity to get a
four year scholarship and will lose substantial financial relief his family relied upon for him to
attend college.
20. Defendant Andrew M. Cuomo is the Governor of the State of New York. On
August 24, 2020, Governor Cuomo announced that "lower
risk"
sports like soccer and field
hockey can begin playing games on September 21, 2020, but higher risk sports like football will
not be permitted to play. Governor Cuomo's office for the transaction of business is located at the
New York State Capitol Building, Albany, New York 12224. Governor Cuomo is sued herein in
his official capacity.
21. Defendant the Office of the Attorney General of the State of New York, pursuant
to Executive Law § 60, is the head of the New York State Department of Law and prosecutes and
5
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9.
defends all actions in which the state has an interest, and have charge and control of all the legal
business of the departments and bureaus of the state, or of any office thereof which requires the
services of attorney or counsel to protect the interest of the State.
22. Defendant Howard A. Zucker, M.D., J.D., is the Commissioner of Health of the
State of New York. Dr. Howard A. Zucker is sued herein in his official capacity.
23. Defendant New York State Department of Health is the health agency in the
State of New York. Its mission is to protect, improve and promote the health, productivity and
well-being of all New Yorkers.
24. Defendant NEW YORK STATE PUBLIC HIGH SCHOOL ATHLETIC
ASSOCIATION (N.Y.S.P.H.S.A.A.) is a non-profit, voluntary, educational service organization
composed of public, parochial, and private schools dedicated to providing equitable and safe
competition for the students of its member schools. On September 9, 2020, the New York State
Public High School Athletic Association announced that Fall High School Football would be
cancelled.
25. Defendant Dr. Robert Zayas is the executive director of the New York State
Public High School Athletic Association. Dr. Robert Zayas is being sued in his Official
Capacity as Executive Director of the New York State Public High School Athletic Association.
26. Defendant Catholic High School Athletic Association is a high school athletic
association made up of Catholic high schools based in New York City, Long Island, Westchester
And Buffalo.
27. Defendant Todd Santabarbara is the Director of Section I and is sued herein in
his Official Capacity.
6
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10.
28. Defendant Ed Dopp is the Executive Director of Section II and is being sued in
his Official Capacity.
29. Defendant John Rathbun is the Director of Section III and is being sued in his
Official Capacity.
30. Defendant Ben Nelson is the Director of Section IV and is being sued in his
Official Capacity.
31. Defendant Kathy Hoyt is the Director of Section V and is being sued in her
Official Capacity.
32. Defendant Timm Slade is the Director of Section VI and is being sued in his
Official Capacity.
33. Defendant Matthew Walentuk is the Director of Section VII and is being sued in
his Official Capacity.
34. Defendant Pat Pizzarelli is the Executive Director of Section VIII and is being
sued in his Official Capacity.
35. Defendant Greg Ransom is the Executive Director of Section IX and is being
sued in his Official Capacity.
36. Defendant Carl Normandin is the Director of Section X and is being sued in his
Official Capacity.
37. Defendant Tom Combs is the Executive Director of Section XI and is being sued
in his Official Capacity.
7
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11.
JURISDICTION AND VENUE
38. Pursuant to 42 U.S.C. § 1983, this Court has jurisdiction to enforce the provisions
of the United States Constitution.
39. Pursuant to authority vested in it by state law, this Court has jurisdiction to
enforce the New York State Constitution and its statutes and to fmd and declare any
unconstitutional either on its face or as applied.
40. Venue is proper in Niagara County pursuant to CPLR 503(a).
STATEMENT OF FACTS
41. On March 7, 2020, Governor Cuomo, signed executive order 202, which declared
a state of disaster emergency for the State of New York.
42. The lockdowns then imposed by the Governor in response to the Covid-19
pandemic are unprecedented and have never been used before in response to any other disease in
our history.
43. Broad population-wide lockdowns are such a dramatic inversion of the concept of
liberty in a free society as to be nearly presumptively unconstitutional unless the governinent can
truly demonstrate that they burden no more liberty than is reasonably necessary to achieve an
important government end.
44. What were initially billed as temporary measures necessary to "flatten the
curve"
and protect hospital capacity have become open-ended and ongoing restrictions aimed at a very
different end-
stopping the spread of an infectious disease and preventing new cases from
arising- which requires ongoing and open-ended efforts.
8
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12.
45. On June 6, 2020, Governor Cuomo tweeted the following, "We did the
impossible. We didn't just flatten the curve-we crushed
it." #NYTough.6
46. Almost four months later, Governor Cuomo still has emergency powers which
allow him to make decisions such as, "football is a high-risk
sport."
47. On June 25, 2020, in an interview with CNN, Governor Cuomo stated, "We did
the right thing and New Yorkers paid a terrible cost. They have been locked up. They have been
closing their businesses. We have the virus under control finally. We had to flatten the curve."7
Almost four months later, the Governor still has the power to decide if high school student
athletes can play football in the fall.
48. On July 20, 2020, in a press conference in Savannah, GA., Governor Cuomo
stated, "So New York- yes we got the virus under control and we 're now down to one of the
lowest infection rates on the globe."8
Thirty six other states can play fall football including New
Jersey, but not in New York State.
49. On August 24, 2020, Governor Cuomo announced that "lower
risk"
sports like
soccer and field hockey can begin playing games on September 21, 2020, but higher risk sports
like football will not be permitted to play. A clear example of an open-ended and ongoing
restriction aimed at preventing new cases from arising and which has nothing to do with a
temporary measure necessary to flatten the curve and protecting hospital capacity.
_______
6 Governor Andrew M. Cuomo, Twitter, June 6, 2020.
7
CNN.com, June 25, 2020. Interview with Governor Andrew M. Cuomo.
8
aovernor.ny.aov, July 20, 2020
9
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13.
50. On September 9, 2020, the Defendant New York State Public High School
Athletic Association announced that Fall High School Football would be cancelled.
51. Fall High School Football is now cancelled in New York State despite the
Governor saying:
(a) we didn't flatten the curve, we crushed it; and
(b) we have the virus under control; and
(c) New York has the lowest infection rate on the globe; and
(d) the lowest hospitalization rates since early March.
52. Defendants have collectively shut down high school fall football while NCAA
Football and the National Football League are allowed to play games within the State.
53. Defendants have collectively shut down high school football while Syracuse
University and the Buffalo Bills are allowed to travel interstate and play football games.
54. Defendants have collectively shut down high school fall football while allowing
similar high school students to compete in high school soccer, field hockey and swimming.
55. Defendants did not provide a pre- or post- deprivation remedy to question "high
risk"
or to determine if high school fall football can be played with the same health related
protocols as "lower risk sports or the same health related protocols as the NCAA or NFL. The
designation of high school football as "high
risk"
is random, arbitrary and capricious.
56. There was a list of sports that were allowed to open for fall sports and that the
classification was not reasonable or rational and was arbitrary and random without any data, and
therefore a denial of due process.
10
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14.
57. Fall High School Football has been shuttered as well as the hopes and dreams of
many New York student athletes looking to earn a football scholarship for college. Fall High
School football is played
"intrastate"
in a state that has the lowest infection rate in the country.
58. On June 4, 2020, during his press conference, Governor Cuomo said that, "this is
a public health issue and you don't want people sick and
dead."
During the same press briefing,
Governor Cuomo stated that he wanted to thank the protesters for protesting in thousands
throughout New York City. The only conclusion you draw from that is that thousands of people
can march together throughout New York City or riot and there is no public health issue for these
marches or riots, but high school student athletes who want to play fall football are "high
risk."
There is either a public health emergency or there's not. It cannot be both.
59. The State continues to govern impartially and arbitrarily by allowing other fall
sports to be played but shutters football even though New York State has met and exceeded the
re-opening metrics put in place by Governor Cuomo.
60. On September 14, 2020, Governor Cuomo announced that New York's infection
rate had been under 1% for 38 days in the row.9
61. These statistics show that the curve flattened a long time ago and there is no
longer a state of emergency in the State of New York.
62. Plaintiff's son is a blue chip senior quarterback who will most likely lose a chance
at a college scholarship with
Defendants'
cancelling of fall football.
9
QOVernor.ny.aov, September 14, 2020.
11
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15.
63. Plaintiff and all others similarly situated are ready to conform to all safety
guidelines and protocols followed by all high school football student athletes in the thirty six
states that have fall football, as well as the NCAA and NFL.
64. The
Defendants'
decision will have a significant detrimental impact on Plaintiff
and all other similarly situated who stand to lose hundreds of thousands of dollars in potential
football scholarships.
65. The
Defendants'
flawed, arbitrary, random and capricious decision-making
process has caused and will continue to cause irreparable harm to Plaintiff and all those similarly
situated, for which they have no adequate remedy at law.
66. While other student athletes will be able to continue growth and development and
showcase their talents through their fall seasons, Plaintiff and those similarly situated will be
unable to participate in games, showcase their talents to college recruiters or professional scouts.
CLASS ACTION ALLEGATIONS
67. This action meets all the requirements of a class action under C.P.L.R. § 901.
68. The putative Class consists of Parents of high school student athletes who wish to
play fall football, who have been shutdown for fall football by Defendants. The putative Class
continues to be shut down for fall football on September 27, 2020, with no opening date in sight.
69. Excluded from the Class are Defendants.
70. While Plaintiff does not know the exact number of the members of the Class,
Plaintiff believes there are several thousand members.
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16.
71. The legal constitutionality or uncoñstitutionality of the enforcement of the
shutdown orders and in the continued enforcement of the shutdown orders constitute questions
common to the Class, and predominates over any question affecting only individual members.
72. The claim for a declaration of unconstitutionality and the claim for a Tortious
Interference with prospective economic advantage, as the Class representative, are typical of the
claims of the members of the Class. Plaintiff and all members of the Class are similarly affected
by Defendant's unconstitutional shutdown orders and their enforcement thereof.
73. Plaintiff, as a class representative, will fairly and adequately protect the interests
of the Class. Plaintiff's claims arise out of the same common course of conduct giving rise to the
claims of other members of the Class. Plaintiff's interests are coincident with, and not
antagonistic to those of the other members of the Class. Plaintiff is represented by counsel who
are competent and experienced in the prosecution of Equal Protection, Due Process, New York
Constitution and Tortious Interference claims.
74. A class action is superior to any other method for the resolution of this dispute, in
that, among other things, such treatment will permit a large number of similarly situated persons
to prosecute their common claims in a single forum simultaneously, efficiently, and without the
unnecessary duplication of evidence, effort, and expense that numerous individual actions would
engender. The benefits of proceeding through the class mechanism, including providing injured
restaurant and bar owners with a method of obtaining redress for claims that might not be
practicable to pursue individually, substantially outweigh any difficulties that may arise in the
management of this class action.
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17.
75. The prosecution of separate actions by individual members of the Class would
create a risk of inconsistent and varying adjudications, establishing incompatible standards of
conduct for Defendants.
COUNT I - PROCEDURAL DUE PROCESS
76. Plaintiff incorporates paragraphs 1-75 as if fully set forth herein.
77. "Every person who, under color of any statute, ordinance, regulation, custom, or
usage, of any State ... subjects, or causes to be subjected, any citizen of the United States or other
person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit
in equity, or other proper proceeding for
redress."
42 U.S.C. § 1983.
78. The Due Process Clause of the Fourteenth Amendment to the U.S. Constitution
provides that no State can "deprive any person of life, liberty, or property, without due process of
law."
U.S. Const. amend. XIV, § 1, cl. 3.
79. The procedural component of the Due Process Clause prohibits governmeñt from
depriving Plaintiff and members of the putative Class of liberty and property interests without
providing any process before or after the deprivations occurred.
80. To establish a procedural due process claim under 42 U.S.C. § 1983, Plaintiff and
Class member must show that (1) they had a life, liberty, or property interest protected by the
Due Process Clause; (2) they were deprived of this protected interest; and (3) the state did not
14
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18.
afford them adequate procedural rights. See Daily Servs., LLC v. Valentino, 756 F.3d 893, 904
(6th Circ. 2014).
81. Plaintiff and the putative Class members have a protected liberty interest in the
right to live without arbitrary governmental interference with their liberty and property interests.
County of Sacramento v. Lewis, 523 U.S. 833, 845 (1988).
82. Liberty "denotes not merely freedom from bodily restraint but also the right of the
individual to contract, to engage in any of the common occupations of life, to acquire useful
knowledge, to marry, establish a home and bring up children, to worship God according to the
dictates of his own conscience, and generally to enjoy those privileges long recognized . . . as
essential to the orderly pursuit of happiness by free
men."
Board of Regents of State Colleges v.
Roth, 408 U.S. 564, 572 (1972) (emphases added).
83. Plaintiff and members of the putative Class have protected liberty and property
interests, which Defendants infringed through the shutdown Orders:
a. members have been, and are being, denied the right to intrastate travel.
b. Plaintiff and members of the putative Class have been, and is being, denied the
right to intrastate travel.
84. Defendants did not provide any procedural due process before declaring high
school football as "high
risk,"
and cancelling fall high school football. Nor does the cancellation
provide any mechanism for post-deprivation review.
85. Defendants acted under color of State law in an official capacity and within
the scope of their official duties when declaring high school football as "high
risk"
and
cancelling the fall season.
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19.
86. As a direct and proximate cause of the failure to provide any
pre- or post-
deprivation process, Plaintiff and members of the putative class suffered prejudice under threat
losing college scholarships.
87. By allowing NCAA football and NFL football, the Defendants acknowledge that
football can be safely played within the State of New York and can adhere to "social
distancing"
rules.
88. By allowing contact sports like high school soccer to be played within the State of
New York, the Defendants acknowledge that contact sports can be safely played within the State
of New York and contact sports can adhere to "social
distancing"
rules.
89. Plaintiff and members of the putative class can operate in full compliance with all
of these rules.
90. By failing to provide any
pre- or post-deprivation review of the designation of
football as "high
risk"
and the cancellation of fall football, Plaintiff and members of the putative
Class are suffering substantial losses of liberty and property:
a. Plaintiff and members of the putative class can lose significant revenue over the
next several months if not allowed to showcase their talents to college recruiters.
91. The prejudice that Plaintiff and members of the putative Class have suffered
would not have occurred but for
Defeñdañts'
deprivations of their liberty and property interests.
92. Plaintiff and members of the putative Class seek a declaration that the
cancellation of fall football violates the procedural component of the Due Process Clause, and an
injunction against further infringements of their rights under this Clause as described in the
Prayer for Relief.
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20.
COUNT II- EQUAL PROTECTION
93. Plaintiff incorporates paragraphs 1-92 as if fully set forth herein.
94. "Every person who, under color of any statute, ordinance, regulation, custom, or
usage, of any State ... subjects, or causes to be subjected, any citizen of the United States
or other person within the jurisdiction thereof to the deprivation of any rights, privileges,
or immunities secured by the Constitution and laws, shall be liable to the party injured in
an action at law, suit in equity, or other proper proceeding for
redress."
42 U.S.C. § 1983.
95. The Equal Protection Clause of the Fourteenth Amendment to the U.S.
Constitution provides that no State can "deny to any person within its jurisdiction
the equal protection of the
laws."
U.S. Const. amend. XIV, § 1, cl. 4.
96. The cancellation of football deprives Plaintiff and members of the putative Class
of the equal protection of the law because they allow college-aged athletes to play football and
professional athletes to play football throughout the State but do not allow Plaintiff's and
members of the putative Class's to play high school fall football, even though they are simibrly
situated. In fact, Plaintiff's games would be intrastate in a state that has the lowest infection rates.
97. The cancellation of football deprives Plaintiff and members of the putative Class
of the equal protection of the law because they allow high school athletes to play soccer and field
hockey throughout the State but do not allow Plaintiff's and members of the putative Class's to
play high school fall football, even though they are similarly situated and even though they are
all contact sports played outdoors.
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21.
98. Under
Defendants'
orders, Plaintiff's and those similarly situated cannot play high
school football outdoors but Syracuse University can play football against teams that are on the
New York travel advisory list indoors. This designation is completely arbitrary, random and
ridiculous, considering that Plaintiff can maintain equivalent strict social distancing but is not
allowed to and in fact can be penalized for doing so.
99. Plaintiff and members of the putative Class could and can play high school
football in full compliance with all of the rules imposed on the NFL and NCAA football or high
school soccer which are allowed to operate under the shutdown Orders, or reasonably equivalent
and equally safe measures tailored to fall high school football. Thus, the shutdown Order is not
narrowly tailored to achieve a compelling governmental interest.
100. Nor is there any rational basis any longer since Governor Cuomo announced that
the virus is contained to deprive Plaintiff and members of the putative Class of their liberty and
property interests in playing high school football when they can do so safely and in the same (or
reasonably, safe equivalent) mañüer as other contact sports allowed to operate.
101. In the alternative, the cancellation of high school football is not reasonably related
to a legitimate governmental interest.
102. Defendants acted under color of State law in an official capacity and within
the scope of their official duties when cancelling high school football.
103. Plaintiff and members of the putative Class seek a declaration that the shutdown
Orders violate the Equal Protection Clause, and an injunction against further infringements of
their rights under this Clause as described in the Prayer for Relief.
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22.
COUNT III- EOUAL PROTECTION UNDER STATE LAW
104. Plaintiff incorporates paragraphs 1-103 as if fully set forth herein.
105. Article 1 § 11 of the New York Constitution states that "No person shall be denied
the equal protection of the laws of this state or any subdivision
thereof."
106. By classifying sports into low risk v. High risk, the State is treating like high
school sports differently. In addition, by allowing the NFL and NCAA football to play games
within the state is treating like persons differently. Allowing the Buffalo Bills to play football,
but not Niagara Falls High School is treating like persons differently.
107. According to the maxpreps.com, thirty six states are allowing high school student
athletes to play high school football while Plaintiff and members of the putative Class have been
ordered to shut down even though Plaintiff's and members of the putative Class's health
protocols are sufficiently similar to those states that were allowed to play high school football.
108.
Defendants'
orders did not provide as pre- or post- deprivation remedy to question
"high-risk"
or to question whether or not fall high school football can operate safely like soccer
or field hockey. There has never been a health analysis of high school football, and no analysis
of Plaintiff's and members of the putative Class's health related protocols to see if they meet the
same health standards as allowed for other contact sports.
109. The unequal, random, arbitrary and unfair treatment has continued in the re-
opening guidance. High School soccer, field hockey, swimming, the NFL and NCAA football are
allowed to operate, but fall high school football remains locked down.
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23.
110. As a result of the unequal treatment of like sports, the shutdown orders violate
Article 1, § 11 of the New York Constitution.
COUNT IV- VIOLATION OF ARTICLE XI, SECTION I of
THE NEW YORK CONSTITUTION
111. Plaintiff incorporates paragraphs 1-110 as if fully set forth herein.
112. Article XI § I of the New York Constitution provides that "The Legislature shall
provide for the maintenance and support of a system of free common schools, wherein all the
children of this state may be
educated."
113. The education of high school children is not only in the classroom, but also on the
high school athletic fields.
114. Many high school student athletes rely on sports scholarships as a gateway to
college.
115.
Defendants'
cancelling of fall football violates Article XI, § I of the New York
State Constitution.
116. Plaintiff and those similarly situated consider football an important part of their
high school education.
117. As a result of the cancellation of high school football, Defendants violate Article
XI, § I of the New York State Constitution.
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24.
COUNT V- Tortious Interference with Economic Advantage
118. Plaintiff incorporates paragraphs 1-117 as if fully set forth herein.
119. Plaintiff and those similarly situated have legitimate economic expectancies,
including but not limited to the opportunities to play NCAA football with scholarship.
120. There is a limited oppo1tunity for high school football players to develop and
showcase their talents, and the loss of an opportunity to compete in the fall along with other
states, with state, national and individual awards no longer available, will damage Plaintiff and
those similarly situated opportunities for college football scholarships.
121. This may also eliminate Plaintiff's and those similarly situated's primary, if not
sole manner in which they may attend college.
122. The Defendants are aware of the existence of Plaintiff's and those similarly
situated legitimate economic expectancies.
123. Defendants have interfered with these legitimate economic expectancies and such
interference is unjustified.
124.
Defendants'
interference was also unjustified because the decisions were arbitrary
and capricious and there is no science to support the decision to cancel fall football.
125.
Defendants'
interference have caused irreparable harm to Plaintiff and those
similarly situated.
126. Plaintiff and those similarly situated have no adequate remedy at law.
127. Plaintiff and those similarly situated are entitled to temporary and permanent
injunctive relief as more fully set forth herein.
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25.
PRELIMINARY INJUNCTION
128. Plaintiff incorporates paragraphs 1-127 as if set forth herein.
129. All of the acts of Defendants, their officers, agents, employees, and servants were
executed and are continuing to be executed by Defendants under the color and pretense of the
shutdown orders.
130. Plaintiff and members of the putative Class are suffering irreparable harm from
the conduct of Defendants. An estimated fifty thousand student athletes have been shut down for
fall football. Plaintiffs and members of the putative Class will lose many scholarship
opportunities to student athletes from other states who have the opportunity to showcase their
skills by playing fall football.
131. Plaintiff and members of the putative Class have no adequate remedy at law to
correct or redress the deprivation of its rights by Defendants.
132. Unless the enforcement of the executive orders is enjoined, Plaintiff and members
of the putative Class will continue to suffer grave irreparable harm.
PRAYER FOR RELIEF
WHEREFORE, Plaintiff, on behalf of itself and the Class, respectfully asks the Court to
grant Plaintiff the following relief:
A. Designation of this action as a class action;
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26.
B. Designation of Plaintiff as a representative Plaintiff of all high school athletes
whose fall football season has been shuttered, due to
Defendants'
shutdown
orders;
C. A declaratory judgment that the shutdown Orders violate Plaintiff's and
Members of the Putative Class's constitutional rights as set forth in this
Complaint;
D. Granting temporary and permanent injunctive relief for
Defendants'
Tortious
Interference with Prospective Economic Advantage; and/or
E. Enjoin Defendants from enforcing the shutdown Orders and
from issuing any future orders or rules similar to the invalid ones described in this
action; and
F. Grant a preliminary injunction enjoining the enforcement and further
enforcement of the shutdown orders; and
H. Award Plaintiffs their reasonable
attorneys'
fees, costs, and expenses under
applicable state law; and
I. Any other such further relief to which Plaintiff and members of the putative
Class may be entitled as a matter of law or equity, or which the Court determines
to be just and proper.
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27.
Dated: Syosset, New York
September 27, 2020
THE MERMIGIS LAW GROUP, P.C.
Atto eys fo Plaintiffs
: ames G. Mermigis, Esq.
85 Cold Spring Road, Suite 200
Syosset, NY 11791
(516) 353-0075
(516) 682-0011 Facsimile
James@MermigisLaw.com
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28.
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NIAGARA
X
LORAINE HUMPHREY, Individually and as Parent and
Natural Guardian of J.H.-G., and on Behalf of all
Others Similarly Situated,
Plaintiffs,
Against
ANDREW M. CUOMO, in his Official Capacity as Governor
of the State of New York, ATTORNEY GENERAL OF THE
STATE OF NEW YORK, HOWARD ZUCKER, in his Official
Capacity as Commissioner of Health of the State of New York,
NEW YORK STATE DEPARTMENT OF HEALTH,
NEW YORK STATE PUBLIC HIGH SCHOOL ATHLETIC
ASSOCIATION, DR. ROBERT ZAYAS, in his Official Capacity
as Executive Director of the N.Y.S.P.H.S.A.A., TODD
SANTABARBARA, in his Official Capacity as Director of
Section I, ED DOPP, in his Official Capacity as Director of
Section II, JOHH RATHBUN, in his Official Capacity as
Director of Section III, BEN NELSON, in his Official Capacity
As Director of Section IV, KATHY HOYT, in her Official
Capacity as Director of Section V, TIMM SLADE, in his
Official Capacity as Director of Section VI, MATTHEW
WALENTUK, in his Official Capacity as Director of
Section VII, PAT PIZZARELLI, in his Official Capacity as
Director of Section VIII, GREG RANSOM, in his Official
Capacity as Director of Section IX, CARL NORMANDIN,
In his Official Capacity of Section X, TOM COMBS, in his
Official Capacity as Director of Section XI, CATHOLIC
HIGH SCHOOL ATHLETIC ASSOCIATION and THE
STATE OF NEW YORK,
Defendants.
X
---------------------___--------------------------- -----------------------
CLASS ACTION COMPLAINT
THE MERMIGIS LAW GROUP, P.C.
85 Cold Spring Road
Suite 200
Syosset, New York 11791
516.353.0075
Mermigislaw@GMail.com
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29.
_________________________
Pursuant to 22 NYCRR Sec. 130-1.1-a(a), the undersigned, an attorney admitted to practice in the
Courts of New York State, certifies that, upon information and b d reasonable inquiry, the
contention contained in the annexed document are not frivol s.
Dated: September 27, 2020
ame G. Mermigis, Esq.
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