Chrysafis v. James

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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PANTELIS CHRYSAFIS, BETTY COHEN,

BRANDIE LACASSE, MUSAN SHI and

FENG ZHOU,

Plaintiffs,

OPINION AND ORDER

-against- 21-cv-998 (JS)(ARL)

LETITIA JAMES, in her official capacity as

Attorney General of the State of New York,

Defendant.

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SEYBERT, United States District Judge:

On February 24, 2021, plaintiffs Pantelis Chrysafis (“Chrysafis”), Betty Cohen

(“Cohen”), Brandie LaCasse (“LaCasse”), Musan Shi (“Shi”) and Feng Zhou (“Zhou”)

(collectively, “Plaintiffs”) commenced this action against Letitia James (the “Attorney General”

or “Defendant”), in her official capacity as Attorney General of the State of New York, inter

alia, challenging the constitutionality of Part A of the New York COVID-19 Emergency

Eviction and Foreclosure Prevention Act of 2020 (“CEEFPA”), which was signed into law on

December 28, 2020. Pending before the Court are: (i) Plaintiffs’ motion, inter alia, for a

preliminary injunction pursuant to Rule 65 of the Federal Rules of Civil Procedure, enjoining the

Attorney General, her representatives and agents, “and all persons acting in concert or in

participation with them, or having notice, from implementing or enforcing Part A of [CEEFPA],

until such time as the Court resolves Plaintiffs’ application for permanent relief in this case,”

(Docket Entry [“DE”] 5); and (ii) the Attorney General’s motion to dismiss this action pursuant

to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure for lack of subject matter

jurisdiction and failure to state a claim for relief. For the reasons set forth below, the Attorney

General’s motion is granted and Plaintiffs’ motion is denied.

I. BACKGROUND

A. Factual Background

CEEFPA was signed into law on December 28, 2020. The following is the express

legislative intent of the statute:

“On March 7, 2020, Governor Andrew Cuomo proclaimed a state of emergency in

response to the Coronavirus disease (COVID-19) pandemic. Measures necessary

to contain the spread of COVID-19 have brought about wide-spread economic and

societal disruption, placing the state of New York in unprecedented circumstances.

COVID-19 presents a historic threat to public health. Hundreds of thousands of

residents are facing eviction or foreclosure due to necessary disease control

measures that closed businesses and schools, and triggered mass-unemployment

across the state. The pandemic has further interrupted court operations, the

availability of counsel, the ability for parties to pay for counsel, and the ability to

safely commute and enter a courtroom, settlement conference and the like.

Stabilizing the housing situation for tenants, landlords, and homeowners is to the

mutual benefit of all New Yorkers and will help the state address the pandemic,

protect public health, and set the stage for recovery. It is, therefore, the intent of

this legislation to avoid as many evictions and foreclosures as possible for people

experiencing a financial hardship during the COVID-19 pandemic or who cannot

move due to an increased risk of severe illness or death from COVID-19.

As such, it is necessary to temporarily allow people impacted by COVID-19 to

remain in their homes. A limited, temporary stay is necessary to protect the public

health, safety and morals of the people the Legislature represents from the dangers

of the COVID-19 emergency pandemic.”

(Complaint [“Compl.”], Ex. A at 2).

Section 2 of Part A of CEEFPA pertains to pending eviction proceedings and provides,

“Any eviction proceeding pending on the effective date of this act, including

eviction proceedings filed on or before March 7, 2020, or commenced within thirty

days of the effective date of this act shall be stayed for at least sixty days, or to such

later date that the chief administrative judge shall determine is necessary to ensure

that courts are prepared to conduct proceedings in compliance with this act and to

give tenants an opportunity to submit the hardship declaration pursuant to this

act[1]. The court in each case shall promptly issue an order directing such stay and

promptly mail the respondent a copy of the hardship declaration in English, and, to

the extent practicable, the tenant’s primary language, if other than English.”

(Compl., Ex. A at 4). “Eviction proceeding” is defined to mean “a summary proceeding to

recover possession of real property under article seven of the real property actions and

proceedings law relating to a residential dwelling unit or any other judicial or administrative

proceeding to recover possession of real property relating to a residential dwelling unit.” (Id. at

2, § 1(1)). A “tenant” is defined as including “a residential tenant, lawful occupant of a dwelling

unit, or any other person responsible for paying rent, use and occupancy, or any other financial

obligation under a residential lease or tenancy agreement, but does not include a residential

tenant or lawful occupant with a seasonal use lease where such tenant has a primary residence to

which to return to.” (Id. at 2, § 1(3)).

A “hardship declaration” is defined to mean “the following statement, or a substantially

equivalent statement in the tenant’s primary language, in 14-point type, published by the office

of court administration, whether in physical or electronic written form:

‘NOTICE TO TENANT: If you have lost income or had increased costs during the

COVID-19 pandemic, or moving would pose a significant health risk for you or a

member of your household due to an increased risk for severe illness or death from

COVID-19 due to an underlying medical condition, and you sign and deliver this

hardship declaration form to your landlord, you cannot be evicted until at least May

1, 2021 for nonpayment of rent or for holding over after the expiration of your lease.

You may still be evicted for violating your lease by persistently and unreasonably

engaging in behavior that substantially infringes on the use and enjoyment of other

tenants or occupants or causes a substantial safety hazard to others.

If your landlord has provided you with this form, your landlord must also provide

you with a mailing address and e-mail address to which you can return this form.

If your landlord has already started an eviction proceeding against you, you can

return this form to either your landlord, the court, or both at any time. You should

1 The initial stay of eviction proceedings was not extended by the chief administrative judge and expired on February

26, 2021, i.e., two (2) days after this action was commenced.

keep a copy or picture of the signed form for your records. You will still owe any

unpaid rent to your landlord. You should also keep careful track of what you have

paid and any amount you still owe.

For more information about legal resources that may be available to you, go to

www.nycourts.gov/evictions/nyc/ or call 718-557-1379 if you live in New York

City or go to www.nycourts.gov/evictions/outside-nyc/ or call a local bar

association or legal services provider if you live outside of New York City. Rent

relief may be available to you, and you should contact your local housing assistance

office.

TENANT'S DECLARATION OF HARDSHIP DURING THE COVID-19

PANDEMIC

I am a tenant, lawful occupant, or other person responsible for paying rent, use and

occupancy, or any other financial obligation under a lease or tenancy agreement at

(address of dwelling unit). YOU MUST INDICATE BELOW YOUR

QUALIFICATION FOR EVICTION PROTECTION BY SELECTING OPTION

“A” OR “B”, OR BOTH.

A. ( ) I am experiencing financial hardship, and I am unable to pay my rent or

other financial obligations under the lease in full or obtain alternative suitable

permanent housing because of one or more of the following:

1. Significant loss of household income during the COVID-19 pandemic.

2. Increase in necessary out-of-pocket expenses related to performing

essential work or related to health impacts during the COVID-19 pandemic.

3. Childcare responsibilities or responsibilities to care for an elderly,

disabled, or sick family member during the COVID-19 pandemic have negatively

affected my ability or the ability of someone in my household to obtain meaningful

employment or earn income or increased my necessary out-of-pocket expenses.

4. Moving expenses and difficulty I have securing alternative housing make

it a hardship for me to relocate to another residence during the COVID-19

pandemic.

5. Other circumstances related to the COVID-19 pandemic have negatively

affected my ability to obtain meaningful employment or earn income or have

significantly reduced my household income or significantly increased my expenses.

To the extent that I have lost household income or had increased expenses, any

public assistance, including unemployment insurance, pandemic unemployment

assistance, disability insurance, or paid family leave, that I have received since the

start of the COVID-19 pandemic does not fully make up for my loss of household

income or increased expenses.

B. ( ) Vacating the premises and moving into new permanent housing would

pose a significant health risk because I or one or more members of my household

have an increased risk for severe illness or death from COVID-19 due to being over

the age of sixty-five, having a disability or having an underlying medical condition,

which may include but is not limited to being immunocompromised.

I understand that I must comply with all other lawful terms under my tenancy, lease

agreement or similar contract. I further understand that lawful fees, penalties or

interest for not having paid rent in full or met other financial obligations as required

by my tenancy, lease agreement or similar contract may still be charged or collected

and may result in a monetary judgment against me. I further understand that my

landlord may be able to seek eviction after May 1, 2021, and that the law may

provide certain protections at that time that are separate from those available

through this declaration.

Signed:

Printed name:

Date signed:

NOTICE: You are signing and submitting this form under penalty of law. That

means it is against the law to make a statement on this form that you know is false.’”

(Compl., Ex. A at 2-4, § 1(4)). Section 10 of CEEFPA Part A requires the office of court

administration to translate the hardship declaration “into Spanish and the six (6) most common

languages in the city of New York, after Spanish,” and to “post and maintain such translations

and an English language copy of the hardship declaration on the website of such office beginning

within fifteen days of the effective date of this act.” (Id. at 7). In addition, that section provides

that “[t]o the extent practicable, the office of court administration shall post and maintain on its

website translations into such additional languages as the chief administrative judge shall deem

appropriate to ensure that tenants have an opportunity to understand and submit hardship

declarations pursuant to this act.”2 (Id.)

Section 3 of CEEFPA Part A pertains to pre-eviction notices and provides:

2 The hardship declaration is available on the Office of Court Administration website in approximately twenty (20)

languages. See https://www.nycourts.gov/eefpa/ (last visited 4/6/2021).

“A landlord shall include a ‘Hardship Declaration’ in 14-point type, with every

written demand for rent made pursuant to subdivision 2 of section 711 of the real

property actions and proceedings law[3], with any other written notice required by

the lease or tenancy agreement, law or rule to be provided prior to the

commencement of an eviction proceeding, and with every notice of petition served

on a tenant. If the translation of the hardship declaration in the tenant’s primary

language is not available on the office of court administration’s public website, as

provided by section ten of this act, it shall be the landlord’s responsibility to obtain

a suitable translation of the hardship declaration in the tenant’s primary language.

Such notice shall also include:

1. a mailing address, telephone number and active email address the tenant can use

to contact the landlord and return the hardship declaration; and

2. a list of all not-for-profit legal service providers actively handling housing

matters in the county where the subject premises are located. Such lists shall be

prepared and regularly updated, to the extent practicable, for such purpose and

published on the website of the office of court administration.”

(Compl., Ex. A at 4). “Landlord” is defined in CEEFPA Part A as including “a landlord, owner

of a residential property and any other person with a legal right to pursue eviction, possessory

action or a money judgment for rent, including arrears, owed or that becomes due during the

COVID-19 covered period, as defined in section 1 of chapter 127 of the laws of 2020.” (Id. at 2,

§ 1(2)).

Section 4 of CEEFPA Part A pertains to the initiation of eviction proceedings and

provides, “If there is no pending eviction proceeding and a tenant provides a hardship declaration

to the landlord or an agent of the landlord, there shall be no initiation of an eviction proceeding

3 N.Y. Real Prop. Acts. Law § 711(2) provides, in pertinent part: “No tenant or lawful occupant of a dwelling or

housing accommodation shall be removed from possession except in a special proceeding. A special proceeding may

be maintained under this article upon the following grounds: . . . 2. The tenant has defaulted in the payment of rent,

pursuant to the agreement under which the premises are held, and a written demand of the rent has been made with at

least fourteen days’ notice requiring, in the alternative, the payment of the rent, or the possession of the premises, has

been served upon him as prescribed in section seven hundred thirty-five of this article.” Contrary to Plaintiffs’

contention, (see Plaintiffs’ Memorandum of Law in Opposition to Defendant’s Motion To Dismiss Based on Eleventh

Amendment Immunity [“Plf. Opp.”] at 15-16), it is clear from the reference to N.Y. Real Prop. Acts Law § 711(2) in

Section 3 of CEEFPA Part A, and from Section 5 of CEEFPA Part A, set forth below, that Section 3 of CEEFPA Part

A is enforced by the state court refusing to allow a landlord who fails to comply therewith to initiate an eviction

proceeding or staying a proceeding if the petition has already been accepted.

against the tenant until at least May 1, 2021, and in such event any specific time limit for the

commencement of an eviction proceeding shall be tolled until May 1, 2021.” (Compl., Ex. A at

4-5). Thus, Section 4 of CEEFPA Part A temporarily prohibits, until May 1, 2021, initiation of

new eviction proceedings against tenants who provide a completed hardship declaration to their

landlord.

Section 5 of CEEFPA Part A also pertains to the commencement of an eviction

proceeding and provides, in pertinent part:

“1. No court shall accept for filing any petition or other filing to commence an

eviction proceeding unless the petitioner or an agent of the petitioner files an

affidavit of service, under penalty of perjury, demonstrating the manner in which

the petitioner or the petitioner’s agent served a copy of the hardship declaration in

English and the tenant’s primary language, if other than English, with any rent

demand and with any other written notice required by the lease or tenancy

agreement, law or rule to be provided prior to the commencement of an eviction

proceeding, and an affidavit under penalty of perjury:

a. attesting that at the time of filing, neither the petitioner nor any agent of

the petitioner has received a hardship declaration from the respondent or any other

tenant or occupant of the dwelling unit that is the subject of the proceeding, or

b. attesting that the respondent or another tenant or occupant of the dwelling

unit that is the subject of the proceeding has returned a hardship declaration, but

the respondent is persistently and unreasonably engaging in behavior that

substantially infringes on the use and enjoyment of other tenants or occupants or

causes a substantial safety hazard to others, with a specific description of the

behavior alleged.

2. Upon accepting a petition pursuant to article 7 of the real property actions and

proceedings law, the attorney, judge or clerk of the court, as the case may be, shall

determine whether a copy of the hardship declaration in English and the tenant’s

primary language, if other than English, is annexed to the served notice of petition

and, if not, shall ensure that the hardship declaration is attached to such notice.

Service of the notice of petition with the attached hardship declaration shall be

made by personal delivery to the respondent, unless such service cannot be made

with due diligence, in which case service may be made under section 735 of the

real property actions and proceedings law. At the earliest possible opportunity, the

court shall seek confirmation on the record or in writing from the respondent that

the respondent has received the hardship declaration and that the respondent has

not submitted a hardship declaration to the petitioner, an agent of the petitioner, or

the court. If the court determines a respondent has not received a hardship

declaration, then the court shall stay the proceeding for a reasonable period of time,

which shall be no less than ten business days or any longer period provided by law,

and provide the respondent with a copy of the hardship declaration in English and

the respondent’s primary language, if other than English, to ensure the respondent

received and fully considered whether to submit the hardship declaration.”

(Compl., Ex. A at 5). Thus, a landlord may commence an eviction proceeding at any time if he or

she files with the court, together with a petition to commence proceedings, an affidavit stating

either: (i) that he or she provided a form hardship declaration to a tenant and had not received the

completed form back; or (ii) that the tenant is engaging in ongoing nuisance activity, regardless

of whether that tenant has provided a hardship declaration. If neither affidavit is annexed to the

petition, the court may not accept the petition for filing or, if the petition has already been

accepted, must stay the proceeding.

Section 6 of CEEFPA Part A pertains to pending eviction proceedings and provides: “In

any eviction proceeding in which an eviction warrant has not been issued, including eviction

proceedings filed on or before March 7, 2020, if the tenant provides a hardship declaration to the

petitioner, the court, or an agent of the petitioner or the court, the eviction proceeding shall be

stayed until at least May 1, 2021. If such hardship declaration is provided to the petitioner or

agent, such petitioner or agent shall promptly file it with the court, advising the court in writing

the index number of all relevant cases.” (Compl., Ex. A at 5). Thus, where no warrant of eviction

has been issued in a pending proceeding, a tenant’s submission of a completed hardship

declaration requires the court to stay the matter until May 1, 2021.

Section 7 of CEEFPA Part A pertains to default judgments and provides:

“No court shall issue a judgment in any proceeding authorizing a warrant of

eviction against a respondent who has defaulted, or authorize the enforcement of

an eviction pursuant to a default judgment, prior to May 1, 2021, without first

holding a hearing after the effective date of this act upon motion of the petitioner.

The petitioner or an agent of the petitioner shall file an affidavit attesting that the

petitioner or the petitioner’s agent has served notice of the date, time, and place of

such hearing on the respondent, including a copy of such notice. If a default

judgment has been awarded prior to the effective date of this act, the default

judgment shall be removed and the matter restored to the court calendar upon the

respondent’s written or oral request to the court either before or during such hearing

and an order to show cause to vacate the default judgment shall not be required.”

(Compl., Ex. A at 5-6).

Section 8 of CEEFPA Part A pertains to eviction proceedings in which an eviction

warrant was issued prior to the effective date of the Act and provides:

“a. (i) In any eviction proceeding in which an eviction warrant has been issued prior

to the effective date of this act, but has not yet been executed as of the effective

date of this act, including eviction proceedings filed on or before March 7, 2020,

the court shall stay the execution of the warrant at least until the court has held a

status conference with the parties. (ii) In any eviction proceeding, if the tenant

provides a hardship declaration to the petitioner, the court, or an agent of the

petitioner or the court, prior to the execution of the warrant, the execution shall be

stayed until at least May 1, 2021. If such hardship declaration is provided to the

petitioner or agent of the petitioner, such petitioner or agent shall promptly file it

with the court, advising the court in writing the index number of all relevant cases.

b. In any eviction proceeding in which a warrant has been issued, including eviction

proceedings filed on or before March 7, 2020, any warrant issued shall not be

effective as against the occupants, unless, in addition to the requirements under

section 749 of the real property actions and proceedings law for warrants, such

warrant states: (i) The tenant has not submitted the hardship declaration and the

tenant was properly served with a copy of the hardship declaration pursuant to this

section, listing dates the tenant was served with the hardship declaration by the

petitioner and the court; or (ii) The tenant is ineligible for a stay under this act

because the court has found that the tenant is persistently and unreasonably

engaging in behavior that substantially infringes on the use and enjoyment of other

tenants or occupants or causes a substantial safety hazard to others, with a specific

description of the behavior.

c. No court shall issue a warrant directed to the sheriff of the county or to any

constable or marshal of the city in which the property, or a portion thereof, is

situated, or, if it is not situated in a city, to any constable of any town in the county,

that does not comply with the requirements of this section.

d. No officer to whom the warrant is directed shall execute a warrant for eviction

issued that does not comply with the requirements of this section.

e. Unless the warrant contains the information contained in paragraph (ii) of

subdivision b of this section, if any tenant delivers the hardship declaration to the

officer to whom the warrant is directed, the officer shall not execute the warrant

and shall return the hardship form to the court indicating the appropriate index/case

number the form is associated with.”

(Compl., Ex. A at 6).

Section 9 of CEEFPA Part A provides:

“Sections two, four, six and paragraph (ii) of subdivision a of section eight of this

act shall not apply if the tenant is persistently and unreasonably engaging in

behavior that substantially infringes on the use and enjoyment of other tenants or

occupants or causes a substantial safety hazard to others, provided:

1. If an eviction proceeding is pending on the effective date of this act, but the

petitioner has not previously alleged that the tenant persistently and unreasonably

engaged in such behavior, the petitioner shall be required to submit a new petition

with such allegations and comply with all notice and service requirements under

article 7 of the real property actions and proceedings law and this act.

2. If the court has awarded a judgment against a respondent prior to the effective

date of this act on the basis of objectionable or nuisance behavior, the court shall

hold a hearing to determine whether the tenant is continuing to persist in engaging

in unreasonable behavior that substantially infringes on the use and enjoyment of

other tenants or occupants or causes a substantial safety hazard to others.

3. For the purposes of this act, a mere allegation of the behavior by the petitioner

or an agent of the petitioner alleging such behavior shall not be sufficient evidence

to establish that the tenant has engaged in such behavior.

4. If the petitioner fails to establish that the tenant persistently and unreasonably

engaged in such behavior and the tenant provides or has provided a hardship

declaration to the petitioner, petitioner’s agent or the court, the court shall stay or

continue to stay any further proceedings until at least May 1, 2021.

5. If the petitioner establishes that the tenant persistently and unreasonably engaged

in such behavior or the tenant fails to provide a hardship declaration to the

petitioner, petitioner’s agent or the court, the proceeding may continue pursuant to

article 7 of the real property actions and proceedings law and this act.”

(Compl., Ex. A at 6-7). Thus, none of the stay provisions of CEEFPA Part A applies where a

tenant creates a nuisance or safety hazard.

Section 11 of CEEFPA Part A provides: “A hardship declaration in which the tenant has

selected the option indicating a financial hardship shall create a rebuttable presumption that the

tenant is experiencing financial hardship, in any judicial or administrative proceeding that may

be brought, for the purposes of establishing a defense under chapter 127 of the laws of 2020, an

executive order of the governor or any other local or state law, order or regulation restricting the

eviction of a tenant suffering from a financial hardship during or due to COVID-19 provided that

the absence of a hardship declaration shall not create a presumption that a financial hardship is

not present.” (Compl., Ex. A at 7). The court determines whether the landlord has rebutted the

presumption by applying statutory factors that preexisted CEEFPA, Ch. 127, L. 2020; and the

defense of financial hardship will no longer be available once the COVID-19-related economic

restrictions are lifted in the county of the tenant’s residence. Ch. 127, L. 2020.

Section 12 of CEEFPA Part A is a severance provision which provides: “If any clause,

sentence, paragraph, section or part of this act shall be adjudged by any court of competent

jurisdiction to be invalid and after exhaustion of all further judicial review, the judgment shall

not affect, impair or invalidate the remainder thereof, but shall be confined in its operation to the

clause, sentence, paragraph, section or part of this act directly involved in the controversy in

which the judgment shall have been rendered.” (Compl., Ex. A at 7).

Finally, Section 13 of CEEFPA Part A provides, “This act shall take effect immediately

and sections three, four, five, six, seven, eight, nine, ten and twelve of this act shall expire May

1, 2021.” (Compl., Ex. A at 8).

CEEFPA Part B, subparts A and B, contain similar provisions with respect to mortgage

foreclosure and tax foreclosure actions, respectively. No part of CEEFPA expressly sets forth

any penalty, either civil or criminal, for noncompliance; and no part of CEEFPA references the

Attorney General.

The day after CEEFPA went into effect, the Attorney General’s office provided a

memorandum to New York State Sheriffs “to provide an overview of the new legislation and

impacts for Sheriffs and other law enforcement offices throughout New York State charged with

carrying out evictions.” (Supplemental Declaration of Akiva Shapiro in Further Support of

Plaintiffs’ Application for a Temporary Restraining Order and Preliminary Injunction [“Shapiro

Supp.”], Ex. 7; Declaration of Akiva Shapiro in Support of Plaintiffs’ Opposition to Defendant’s

Motion To Dismiss [“Shapiro MTD Decl.”], Ex. 2). The memorandum provides, in pertinent

part:

“The [C]EEFPA applies to any court or administrative eviction proceeding,

including all Article 7 summary proceedings under the NYS Real Property Actions

and Proceedings Law.

The [C]EEFPA stays the execution of most evictions as well as the

commencement of new eviction cases, with some narrow exceptions, until May

1, 2021. Tenants and occupants are given the opportunity to submit hardship

declaration forms to their landlords, to the courts and even at the point of execution

of a warrant, to a Sheriff, Constable or Marshal to immediately stop their eviction

or prevent an eviction case from being filed against them.

Sheriffs, constables and marshals are specifically stayed from executing any

outstanding warrants of eviction obtained by default judgment until and unless the

court holds a hearing to review the default.

Officers charged with carrying out evictions will need to pay careful attention to

whether warrants of eviction from the courts contain the necessary language to

ensure that the eviction can be legally conducted.

The Office of the New York State Attorney General is available to assist local

Sheriffs and Constable departments as they familiarize themselves with the

applicable provisions of the new law which they are charged with enforcing. . . .”

(Shapiro Supp. Ex. 7; Shapiro MTD Decl., Ex. 2) (emphasis in original). The memorandum then

summarizes the major provisions of the CEEFPA.

A press release issued approximately one week later, on January 7, 20214, provides, in

pertinent part:

“New York Attorney General Letitia James today issued guidance to the New York

State Sheriffs’ Association that provides key reminders regarding law

enforcement’s role in the eviction process during the coronavirus disease 2019

(COVID-19) public health crisis.

On December 28, 2020, the COVID-19 Emergency Evictions and Foreclosure

Prevention Act of 2020 was signed into law, providing protections for tenants at

risk of eviction, including clarification for law enforcement officials carrying out

evictions. The law allows tenants to get an automatic stay of eviction in all cases

through May 1, 2021 by completing and sending a hardship declaration to their

landlord, the court, a sheriff, marshal, or city constable. The law also makes all

eviction warrants - those currently issued and those that will be issued - defective

unless they contain specific language referencing the hardship declaration.

‘As the financial instability spurred by the coronavirus continues, it is imperative

for the state to enforce laws that protect New Yorkers from unlawfully losing their

homes,’ said Attorney General James. ‘My office remains willing and able to assist

local sheriffs and law enforcement departments as they familiarize themselves with

the new law, which they are charged with enforcing.’

* * *

Upon receipt of a declaration, law enforcement officials are prohibited from

evicting the tenant and occupants, and instead, must notify the court that a

declaration has been received. The Office of the Attorney General (OAG)

encourages sheriffs and other law enforcement officers who execute eviction

warrants to provide declarations to all occupants when engaged in an eviction. The

OAG continues to actively monitor housing practices throughout the state to ensure

that unlawful evictions do not occur. The OAG has already sent cease and desist

letters to landlords throughout the state who have unlawfully threatened tenants

with eviction amidst the COVID-19 pandemic.[5] Additionally, Attorney General

4 https://ag.ny.gov/press-release/2021/attorney-general-james-provides-guidance-law-enforcement-group-evictions-

during (last visited 4/6/2021).

5 There is no indication that the Attorney General sent any cease and desist letters in connection with Part A of

CEEFPA, or at any time after that statute was enacted. Plaintiffs submit a news article dated July 8, 2020, i.e., more

than four (4) months prior to the enactment of CEEFPA Part A, indicating that the Attorney General investigated a

law firm for sending “deceptive” eviction notices to tenants between March 25 and May 11, 2020, i.e., after New York

implemented a total ban on evictions. (Shapiro Supp., Ex. 10; Shapiro MTD Decl., Ex. 5). Similarly, the Attorney

General’s tweet providing “Guidance on Coronavirus Resources and Warnings about Consumer Scams” is dated May

8, 2020, more than seven (7) months prior to the enactment of CEEFPA. (Shapiro Supp., Ex. 11; Shapiro MTD Decl.,

Ex. 6). Moreover, as set forth below, the “unlawful eviction guidance” contained in the January 7, 2021 press release

link, inter alia, to earlier press releases issued on April 16, 2020 and May 11, 2020. Indeed, Plaintiffs seemingly

recognize the lack of connection between the cease and desist letters and earlier investigation and CEEFPA Part A by

James issued unlawful eviction guidance to law enforcement departments, and to

New Yorkers highlighting how to navigate tenant issues related to COVID-19.

Threats of eviction are not only illegal, but also damaging to the well-being of New

Yorkers.

All COVID-19 guidance on tenant protections, among other important updates for

the public and businesses, can be found on the OAG website.”

(Shapiro Supp., Ex. 8; Shapiro MTD Decl., Ex. 3). The press release contained links to the

“unlawful eviction guidance” referred to therein for both law enforcement departments and New

Yorkers, i.e., to a press release issued May 11, 2020, entitled “Attorney General James Provides

Directions for Law Enforcement on Unlawful Evictions During COVID-19 Pandemic” under

New York’s Housing Stability and Tenant Protection Act of 2019, and a press release issued

April 16, 2020 entitled “Attorney General James Issues Tenant Guidance for New Yorkers

During Coronavirus Pandemic” under the New York Housing Stability and Tenant Protection

Act of 2019; as well as to “[a]ll COVID-19 guidance on tenant protections” and “other important

updates for the public and business.” (Id.)

Plaintiffs allege that they are residential property owners who rent their properties to

tenants, and that all of their tenants have stopped paying rent. (Compl. ¶ 8). Chrysafis alleges,

inter alia, that he wants to sell his property; that in February 2020, he obtained a judgment

against his tenants as well as a warrant of eviction ordering the tenants to vacate by April 1,

2020; that his tenants have not paid rent in over a year, but nevertheless remain in the home

contending, inter alia: (i) that “in connection with the State’s pandemic eviction moratoria, [the Attorney General’s]

office has even sent out ‘cease and desist’ letters to landlords,” (Plf. Opp. at 1) (emphasis added); (ii) that “[t]he AG

has sent cease and desist letters to landlords and initiated investigations into ‘deceptive and false’ eviction notices in

enforcing New York eviction moratoria throughout the pandemic.” (Id. at 2) (emphasis added); and (iii) that “[t]he

AG’s actions with respect to New York’s previous eviction moratoria also support her authority and intent to enforce

CEEFPA. Her office ‘has already sent cease and desist letters to landlords throughout the state who have unlawfully

threatened tenants with eviction amidst the COVID-19 pandemic[;]’ . . . [a]nd, under a prior eviction moratorium, the

AG initiated an investigation into a law firm for serving ‘deceptive and false’ eviction notices to tenants.” (Id. at 15).

Furthermore, with respect to the investigation, enforcement actions against deceptive practices are under a different

statute, see Gen. Bus. Law § 349, which is not applicable in this case.

because of the eviction moratoria; that forcing him to provide the hardship declaration to his

tenants “will in essence invite his tenants to continue to refuse to pay rent;” and that his tenants

“will certainly avail themselves of the vagueness of the hardship declaration form to assert

financial hardship.” (Id.)

Cohen, who is retired, is the owner of a single co-op unit in Brooklyn, New York, which

she currently rents out to a tenant. (Compl., ¶ 8). Cohen alleges, inter alia, that the rental income

is her primary source of financial support, together with Social Security payments; that the tenant

stopped paying rent starting in March 2020; that she sent a notice of late payment to her tenant

and initiated an eviction proceeding in September 2020, “[b]ut CEEFPA has now barred [her]

from taking any meaningful action to evict the tenant, reclaim her property, or recoup unpaid

rent,” (id.); that the tenant’s annual lease expired in December 2020; that on February 4, 2021,

“the tenant submitted what purports to be a hardship declaration form, checking the box for

financial hardship,” (id.); that “Cohen has no opportunity to contest his submission or receive

clarification as to which category of financial hardship he claims applies,” (id.); and that “[i]f the

form is valid, she will not be able to evict her tenant, despite his nonpayment and the expiration

of his lease, because the tenant’s submission of a declaration form stays her case until May 1,

2021.” (Id.).

LaCasse alleges, inter alia, that she owns and manages six (6) properties in New York,

one (1) of which, i.e., a single family house in Rhinebeck, she decided to sell in November 2020;

that after she served the tenants of such property with a notice of nonrenewal pursuant to the

terms of the lease, the tenants stopped paying rent in response and have refused to vacate the

property despite the fact that the lease’s term has concluded; that she filed a holdover proceeding

against the tenants in December 2020, which was immediately dismissed as a result of CEEFPA;

that immediately thereafter, her tenants completed a hardship declaration form, claiming

hardship in connection with their need for childcare, which “has barred her from taking any

action to re-file suit to evict the tenants until May 2021;” and that “the tenants have violated

numerous terms of the lease, causing significant damage to the property and resulting in multiple

police calls in response to their conduct.” (Compl., ¶ 8).

Shi and Zhou are spouses who own a single-family home in Staten Island, which they

currently rent out to tenants. They allege, inter alia, that the rental income from the house they

own helps cover their rent obligations for their leased family home; that their tenants stopped

paying rent starting in the spring of 2019; and that they commenced a nonpayment action on

October 31, 2019 and obtained a judgment, but before it could be enforced the proceeding was

stayed due to the eviction moratoria. According to Shi and Zhou, “[f]orcing them to provide the

hardship declaration form to their tenants effectively invites the tenants to continue to live in the

property without paying rent. And their tenants will certainly avail themselves of the vague

hardship categories of the declaration form to assert hardship.” (Compl., ¶ 8).

In sum, all Plaintiffs wish to evict their tenants, either so that they may occupy their

property themselves (Shi and Zhou), sell their property (LaCasse and Chrysafis) or, presumably,

rent the property to a paying tenant (Cohen). Although LaCasse and Cohen allege that they have

received hardship declarations from their tenants; Chrysafis, Shi and Zhou do not allege either

that they received a hardship declaration from their tenants or that they served their tenants with

the form. No Plaintiff alleges that he or she has attempted to move forward with an eviction

proceeding since CEEFPA has been in effect, either by attesting that they provided a form

hardship declaration and did not receive the completed form, or by attesting that any of their

tenants is creating a nuisance; nor does any Plaintiff allege that he or she plans to attempt to

move forward with an eviction in violation of CEEFPA Part A or any other law.

The only allegation referencing the Attorney General in the complaint is:

“Defendant Letitia James is the Attorney General of the State of New York and is

responsible for defending the constitutionality of CEEFPA in this action as part of

her duty under Executive Law § 63(1) to defend all actions and proceedings in

which New York State is interested. She is also responsible for enforcement of any

violations of the statute.”

(Compl. ¶ 19).

B. Procedural History

Although CEEFPA became effective on December 28, 2020 and is in effect for a total of

four (4) months, i.e., until May 1, 2021, Plaintiffs did not commence this action challenging the

constitutionality of Part A of CEEFPA until February 24, 2021, (DE 1), approximately two (2)

months after the effective date and halfway through the duration of the statute. They filed their

motion for a temporary restraining order and preliminary injunction the following day. (DE 5).

Plaintiffs contend that Part A of CEEFPA deprives them of their federal and state

constitutional rights in the following (five) ways: (1) CEEFPA compels property owners to

disseminate government messages with which they disagree in violation of their rights under the

First Amendment and the New York State Constitution by requiring them (a) to distribute to

their tenants with every written demand for rent (i) hardship declaration forms drafted by the

government, which invite tenants to avail themselves of the government’s eviction moratorium;

and (ii) a government-curated list of not-for profit legal service providers who are available to

assist the tenants in seeking to avoid eviction, (b) to pay for the printing and mailing of those

documents, and (c) to arrange and pay for the translation of the documents into certain languages

spoken by their tenants; (2) Part A of CEEFPA is void for vagueness under the federal and state

Due Process clauses because it enables tenants to avoid eviction and forsake their rental

obligations by declaring hardship based on vague and undefined categories, such as, inter alia,

“[s]ignificant loss of household income,” “[i]ncrease in necessary out-of-pocket expenses” and

“other circumstances” purportedly related to the COVID-19 pandemic, inviting abuse and

arbitrary enforcement; (3) Part A of CEEFPA violates property owners’ procedural due process

rights under the federal and state Due Process clauses by providing them with no way to

challenge or verify tenants’ declarations of hardship; (4) Part A of CEEFPA violates Plaintiffs’

rights under the petition clauses of the First Amendment and New York State Constitution

because it prohibits landlords from exercising their rights to file eviction petitions against tenants

who have submitted a hardship declaration until at least May 1, 2021; and (v) that CEEFPA

violates the New York State Constitution’s delegation of powers by granting the chief

administrative judge the unchecked power to unilaterally extend the eviction moratorium

statewide6.

Plaintiffs now move, inter alia, for a preliminary injunction pursuant to Rule 65 of the

Federal Rules of Civil Procedure, enjoining the Attorney General, her representatives and agents,

“and all persons acting in concert or in participation with them, or having notice, from

implementing or enforcing Part A of [CEEFPA], until such time as the Court resolves Plaintiffs’

application for permanent relief in this case.” (DE 5). The Attorney General moves pursuant to

6 In Plaintiffs’ Reply Memorandum of Law in Further Support of Plaintiffs’ Motion for a Temporary Restraining

Order and Preliminary Injunction (“Plf. Reply”), Plaintiffs state that “[f]or the purposes of this motion for preliminary

relief, Plaintiffs do not contest the AG’s position that the statutory deadline has passed, but reserve the right to

challenge the judicial delegation provision should the AG attempt to disavow this position or the chief administrative

judge seek to extend CEEFPA’s automatic eviction stay.” (Plf. Reply at 8-9, n. 4).

Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure to dismiss the complaint for

lack of subject matter jurisdiction and failure to state a claim for relief.

II. DISCUSSION7

A. Sovereign Immunity8

The Attorney General contends, inter alia, that this action is, in effect, one against the

State of New York that is barred by the Eleventh Amendment.

“The ultimate guarantee of the Eleventh Amendment is that nonconsenting States may

not be sued by private individuals in federal court.” Bd. of Trs. of Univ. of Ala. v. Garrett, 531

U.S. 356, 363, 121 S. Ct. 955, 148 L. Ed. 2d 866 (2001). “State immunity extends to state

agencies and to state officers who act on behalf of the state. . . . Thus, when the state is the real

party in interest, the Eleventh Amendment generally bars federal court jurisdiction over an action

against a state official acting in his or her official capacity.” Burnette v. Carothers, 192 F.3d 52,

57 (2d Cir. 1999); see also Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 101-02,

104 S. Ct. 900, 79 L. Ed. 2d 67 (1984) (“The Eleventh Amendment bars a suit against state

officials when the state is the real, substantial party in interest. . . . And, as when the State itself

7 Unless otherwise noted, case quotations omit all internal quotation marks, citations, footnotes, and alterations.

8 Although the question of whether sovereign immunity “constitutes a true issue of subject matter jurisdiction or is

more appropriately viewed as an affirmative defense is an open question in the Supreme Court and the Second Circuit,”

Carver v. Nassau Cnty. Interim Fin. Auth., 730 F.3d 150, 156 (2d Cir. 2013), recent cases from the Second Circuit

treat sovereign immunity as jurisdictional. See, e.g. Williams v. Marinelli, 987 F.3d 188, 196 (2d Cir. 2021) (finding

that although insufficient briefing of an issue and “conclusory utterances might not suffice to preserve other issues for

appellate review, we nonetheless must consider the Eleventh Amendment issue here because, if the relief sought by

[the plaintiff] would violate the Amendment, we would lack the power to grant it.”); Vega v. Semple, 963 F.3d 259,

284 (2d Cir. 2020) (“The Eleventh Amendment presents a jurisdictional bar that deprives federal courts of the power

to hear certain claims. A federal court must examine each claim in a case to see if the court’s jurisdiction over that

claim is barred by the Eleventh Amendment.”).

is named as the defendant, a suit against state officials that is in fact a suit against a State is

barred regardless of whether it seeks damages or injunctive relief.”)

However, in Ex parte Young, the Supreme Court carved out the following “limited

exception,” CSX Transp., Inc. v. N.Y.S. Off. of Real Prop. Servs., 306 F.3d 87, 98 (2d Cir. 2002),

to Eleventh Amendment state immunity: “[I]ndividuals who, as officers of the state, are clothed

with some duty in regard to the enforcement of the laws of the state, and who threaten and are

about to commence proceedings, either of a civil or criminal nature, to enforce against parties

affected an unconstitutional act, violating the Federal Constitution, may be enjoined by a Federal

court of equity from such action.” Ex parte Young, 209 U.S. 123, 155-56, 28 S. Ct. 441, 52 L.

Ed. 714 (1908); see also Pennhurst, 465 U.S. at 102, 104 S. Ct. 900 (“[A] suit challenging the

constitutionality of a state official’s action is not one against the State.”); Nat’l Ass’n for

Advancement of Colored People v. Merrill, 939 F.3d 470, 475 (2d Cir. 2019) (“The Eleventh

Amendment bars suits against states and their officials unless the state consents to suit, Congress

abrogates the state’s immunity, or the case falls within the Ex parte Young exception.”); In re

Dairy Mart Convenience Stores, Inc., 411 F.3d 367, 371 (2d Cir. 2005) (“Ex parte Young . . .

held that sovereign immunity did not bar actions seeking only prospective injunctive relief

against state officials to prevent a continuing violation of federal law because a state does not

have the power to shield its officials by granting them immunity from responsibility to the

supreme authority of the United States.”) As explained by the Supreme Court:

“The act to be enforced is alleged to be unconstitutional; and if it be so, the use of

the name of the state to enforce an unconstitutional act to the injury of complainants

is a proceeding without the authority of, and one which does not affect, the state in

its sovereign or governmental capacity. It is simply an illegal act upon the part of a

state official in attempting, by the use of the name of the state, to enforce a

legislative enactment which is void because unconstitutional. If the act which the

state attorney general seeks to enforce be a violation of the Federal Constitution,

the officer, in proceeding under such enactment, comes into conflict with the

superior authority of that Constitution, and he is in that case stripped of his official

or representative character and is subjected in his person to the consequences of his

individual conduct. The state has no power to impart to him any immunity from

responsibility to the supreme authority of the United States.”

Ex parte Young, 209 U.S. at 159-160, 28 S. Ct. 441 (emphasis added); see also Papasan v.

Allain, 478 U.S. 265, 276, 106 S. Ct. 2932, 92 L. Ed. 2d 209 (1986) (Ex parte Young’s “holding

was based on a determination that an unconstitutional state enactment is void and that any action

by a state official that is purportedly authorized by that enactment cannot be taken in an official

capacity since the state authorization for such action is a nullity.”)

Thus, “through the doctrine of Ex Parte Young, a party may bring a suit for injunctive or

declaratory relief challenging the constitutionality of a state official’s actions in enforcing state

law.” Riley v. Cuomo, No. 2:17-cv-01631, 2018 WL 1832929, at *4 (E.D.N.Y. Apr. 16, 2018).

“The purpose of this exception is to ensure that the doctrine of sovereign immunity remains

meaningful, while also giving recognition to the need to prevent violations of federal law.” Dairy

Mart, 411 F.3d at 372; accord CSX Transp., 306 F.3d at 98.

“In determining whether the doctrine of Ex parte Young avoids an Eleventh Amendment

bar to suit, a court need only conduct a straightforward inquiry into whether the complaint

alleges an ongoing violation of federal law and seeks relief properly characterized as

prospective.” Verizon Md., Inc. v. Pub. Serv. Comm'n of Md., 535 U.S. 635, 645, 122 S. Ct.

1753, 152 L. Ed. 2d 871 (2002); accord Merrill, 939 F.3d at 475; Dairy Mart, 411 F.3d at 372.

Although Plaintiffs both allege ongoing violations of federal law, i.e., that Part A of CEEFPA

deprives them of their rights under the First and Fourteenth Amendments to the United States

Constitution, and seek prospective injunctive relief to prevent a continuing violation of federal

law, they do not allege that the Attorney General, the only defendant named herein, is herself

committing any ongoing violation of federal law, i.e., that the Attorney General is enforcing or

threatening to enforce the allegedly unconstitutional provisions of Part A of CEEFPA to the

injury of Plaintiffs, that could be remedied by granting prospective injunctive relief against the

Attorney General. See Nassau & Suffolk Cnty. Taxi Owners Ass’n, Inc. v. State, 336 F. Supp. 3d

50, 67-68 (E.D.N.Y. 2018) (finding that although the plaintiffs “alleged an ongoing violation of

federal law and are seeking prospective relief[,] . . . there is an additional factor which must be

satisfied in order for Plaintiffs’ claim against the Individual Defendants to circumvent Eleventh

Amendment immunity: the exception under Ex parte Young only applies where the official sued

has some connection with the enforcement of the allegedly unconstitutional act.”); e.g. Doe v.

Holcomb, 883 F.3d 971, 977 (7th Cir. 2018) (holding that the Eleventh Amendment barred the

plaintiff’s suit in federal court against the Attorney General because the Attorney General had

“not threatened to do anything, and cannot do anything, to prosecute a violation of” the

challenged statute); Russell v. Lundergan-Grimes, 784 F.3d 1037, 1047 (6th Cir. 2015) (“Young

does not apply when a defendant state official has neither enforced nor threatened to enforce the

allegedly unconstitutional state statute.”); Pennington Seed, Inc. v. Produce Exch. No. 299, 457

F.3d 1334, 1342 (Fed. Cir. 2006) (“When a violation of federal law is alleged, as here, the state

official whose actions violate that law is the rightful party to the suit and prospective injunctive

relief can only be had against him.”); cf. In re Deposit Ins. Agency, 482 F.3d 612, 618 (2d Cir.

2007) (“[A]pplication of the straightforward inquiry suggests that the Eleventh Amendment does

not prevent suit against the Superintendent [of Banks of the State of New York, who had seized

assets and other property from two failed foreign banks.] The gravamen of the Agency’s petition

is that the Superintendent is committing an ongoing violation of federal law by taking possession

of and retaining assets that—under 11 U.S.C. § 304(b) & (c) (empowering a bankruptcy court to

enjoin such proceedings and order turnover of the assets, and outlining the legal standards

pursuant to which this relief may be granted)—must be released to the Agency. . . .” (emphasis

added)); Dairy Mart, 411 F.3d at 372 (“Inasmuch as we accept that the state is incapable of

authorizing an unconstitutional act, the Ex parte Young exception is not a legal fiction, but rather

involves the infliction of real damage by an officer, without authority by the state, upon the

plaintiff. . . . [A]lthough the people in their sovereign capacity may be immune from suit, it does

not follow that officers of the state should share this aspect of sovereignty when they violate the

laws of the people.” (emphasis added)); CSX Transp., 306 F.3d at 98 (“The doctrine of Ex Parte

Young is a limited exception to the general principle of sovereign immunity and allows a suit for

injunctive relief challenging the constitutionality of a state official’s actions in enforcing state

law under the theory that such a suit is not one against the State, and therefore not barred by the

Eleventh Amendment.” (emphasis added)).

“In making an officer of the state a party defendant in a suit to enjoin the enforcement of

an act alleged to be unconstitutional, it is plain that such officer must have some connection with

the enforcement of the act, or else it is merely making him a party as a representative of the state,

and thereby attempting to make the state a party.” Ex parte Young, 209 U.S. at 157, 28 S. Ct.

441; accord Dairy Mart, 411 F.3d at 372-73; see also Nassau & Suffolk Cnty. Taxi Owners, 336

F. Supp. 3d at 68 (“That a government official must have a connection to the allegedly

unconstitutional government act makes sense, for an injunction may issue only in circumstances

where the state official has the authority to perform the required act.”) “It has not, however, been

held that it was necessary that such duty should be declared in the same act which is to be

enforced.” Ex parte Young, 209 U.S. at 157, 28 S. Ct. 441; see also Dairy Mart, 411 F.3d at 373

(“So long as there is such a connection, it is not necessary that the officer’s enforcement duties

be noted in the act.”) “The fact that the state officer, by virtue of his office, has some connection

with the enforcement of the act, is the important and material fact, and whether it arises out of

the general law, or is specially created by the act itself, is not material so long as it exists.” Ex

parte Young, 209 U.S. at 157, 28 S. Ct. 441. Thus, the question is whether the Attorney General

has, “by the law of the state, so far as concerns [Part A of CEEFPA], any duty with regard to the

enforcement of the same.” Id. at 160, 28 S. Ct. 441.

In Ex parte Young, the Supreme Court reviewed the Minnesota Attorney General’s

commitment for contempt for violating a temporary injunction issued by a federal court, which

enjoined him from enforcing and imposing what stockholders of a railroad believed were

onerous rates on railroads imposed in that state pursuant to two allegedly unconstitutional acts of

the state legislature, by commencing mandamus proceedings for the purpose of enforcing the law

of that state. 209 U.S. at 126-134, 28 S. Ct. 441. The Supreme Court found that the attorney

general, “as a state officer attempting to enforce an unconstitutional state statute,” Dairy Mart,

411 F.3d at 372, i.e., by commencing the mandamus proceedings, was a proper party because:

“under his power existing at common law, and by virtue of . . . various [Minnesota]

statutes, had a general duty imposed upon him, which includes the right and the

power to enforce the statutes of the state, including, of course, the act in question,

if it were constitutional. His power by virtue of his office sufficiently connected

him with the duty of enforcement to make him a proper party to a suit of the nature

of the one now before the United States circuit court [seeking injunctive relief

preventing the enforcement of state statutes alleged to be unconstitutional].”9

9 Specifically, the Supreme Court found that that under Minnesota common law, “the attorney general might institute,

conduct, and maintain all suits and proceedings he might deem necessary for the enforcement of the laws of the state,

the preservation of order, and the protection of public rights, and that there were no statutory restrictions in that state

limiting the duties of the attorney general in such case[;]” that “Section 3 of chapter 227 of the General Laws of

Minnesota, 1905 (same law, § 58, Revised Laws of Minnesota, 1905), imposes the duty upon the attorney general to

cause proceedings to be instituted against any corporation whenever it shall have offended against the laws of the

state[;]” and that “[b]y § 1960 of the Revised Laws of 1905 it is also provided that the attorney general shall be ex

officio attorney for the railroad commission, and it is made his duty to institute and prosecute all actions which the

commission shall order brought, and shall render the commissioners all counsel and advice necessary for the proper

performance of their duties.” Ex parte Young, 209 U.S. at 160-61, 28 S. Ct. 441. Thus, Ex parte Young did not rely

solely on the attorney general’s general enforcement powers. Rather there were two (2) additional factors that

demonstrated a particular duty to enforce the statute in question and a willingness to do so: (i) Minnesota had enacted

a separate statute expressly making the attorney general the ex officio attorney for the railroad commission, with a

corresponding “duty to institute and prosecute all actions which the commission shall order brought, and [to] render

the commissioners all counsel and advice necessary for the proper performance of their duties;” and (ii) the Attorney

Ex parte Young, 209 U.S. at 161, 28 S. Ct. 441.

Even before Ex parte Young, the Supreme Court held:

“There is a wide difference between a suit against individuals, holding official

positions under a state, to prevent them, under the sanction of an unconstitutional

statute, from committing by some positive act a wrong or trespass, and a suit against

officers of a state merely to test the constitutionality of a state statute, in the

enforcement of which those officers will act only by formal judicial proceedings in

the courts of the state. . . . If, because they were law officers of the state, a case

could be made for the purpose of testing the constitutionality of the statute, by an

injunction suit brought against them, then the constitutionality of every act passed

by the legislature could be tested by a suit against the governor and the attorney

general, based upon the theory that the former, as the executive of the state, was, in

a general sense, charged with the execution of all its laws, and the latter, as attorney

general, might represent the state in litigation involving the enforcement of its

statutes. That would be a very convenient way for obtaining a speedy judicial

determination of questions of constitutional law which may be raised by

individuals, but it is a mode which cannot be applied to the states of the Union

consistently with the fundamental principle that they cannot, without their assent,

be brought into any court at the suit of private persons.”

Fitts v. McGhee, 529-30, 19 S. Ct. 269, 43 L. Ed. 535 (1899). Ex parte Young cited most of that

language in Fitts in holding that “[i]n making an officer of the state a party defendant in a suit to

enjoin the enforcement of an act alleged to be unconstitutional, it is plain that such officer must

have some connection with the enforcement of the act, or else it is merely making him a party as

a representative of the state, and thereby attempting to make the state a party.” Ex parte Young,

209 U.S. at 157, 28 S. Ct. 441.

The Ex parte Young exception to Eleventh Amendment immunity does not apply in this

case because the Attorney General does not have any connection with the enforcement of the

provisions of CEEFPA Part A that are alleged to be in continued violation of federal law.

General had already commenced the mandamus proceedings and, thus, “[b]y his official conduct it seems that he

regarded it as a duty connected with his office to compel the company to obey the commodity act, for he commenced

proceedings to enforce such obedience immediately after the injunction issued, at the risk of being found guilty of

contempt by so doing.” Id. at 160.

Nothing in Part A of CEEFPA or the general laws of New York charges the Attorney General

with a particular duty to enforce the parts of the statute challenged herein. Rather, CEEFPA is

administered by the New York court system, which is prohibited by the statute, until May 1,

2021, (i) from accepting for filing any non-complying petition to commence an eviction

proceeding; and (ii) from moving forward with pending proceedings, including issuance of

eviction warrants, absent satisfaction of all statutory prerequisites. Part A of CEEFPA primarily

sets forth procedural requirements with which landlords must comply in order to commence and

continue eviction proceedings in New York, including: (1) the Pre-eviction notice requirements,

i.e., the requirement to include a form hardship declaration (with landlord’s contact information)

and list of legal services providers with any pre-eviction notice to a tenant, id. § 3; (2) the

requirement that any landlord seeking to commence an eviction proceeding attach, with any

notice of petition sought to be filed in housing court, an affidavit demonstrating that the form

hardship declaration was served as required by the statute and attesting that either the form was

not returned or that the tenant was creating a nuisance as defined in the statute, id. § 5; and (3)

the requirement that any landlord in a pending eviction proceeding file a new petition if the

landlord wishes to allege that a tenant is engaging in nuisance behavior but had not so alleged

previously, id. § 9(1). These litigation-related procedural prerequisites, as well as the

“Prohibition on initiation of eviction proceedings,” id., § 4, are enforced by court employees,

who have responsibility for ensuring parties’ compliance with filing requirements before

accepting an eviction petition or allowing a preexisting proceeding to move forward.

Similarly, the remainder of CEEFPA Part A’s mandates apply primarily to courts and law

enforcement officers who execute eviction warrants, e.g., courts are required to stay the initiation

of new proceedings and stay current proceedings, except for those involving nuisance tenants or

tenants who do not provide a completed hardship declaration after having been provided one as

required by the statute, id. §§ 4, 5; no warrant may be issued until the court has held a hearing,

and no warrant may be issued until at least May 1, 2021 if the tenant has provided a hardship

declaration to the landlord or to the court, id. § 8(a); and no warrant may be executed unless it

expressly states either that the tenant did not provide a hardship declaration after having been

served with the form as required by the statute (including the dates of service by the landlord and

by the court), or that the tenant is creating a nuisance, id. § 8(b).

Plaintiffs assert, inter alia, that the Attorney General has the requisite connection to

CEEFPA Part A based on three (3) general state laws, i.e., N.Y. Exec. Law §§ 63(1), 63(12) and

71. (See Compl. ¶ 19; Plf. Opp. at 2, 13-17 and 13, n. 3). However, none of those provisions

imbues the Attorney General with a particular duty to enforce CEEFPA Part A or administer or

oversee the filing of eviction proceedings sufficient to overcome Eleventh Amendment

immunity. Plaintiffs’ allegations that the Attorney General is responsible for “defending the

constitutionality of CEEFPA [Part A] in this action as part of her duty under Executive Law §

63(1),” (Compl., ¶ 19); and that, pursuant to N.Y. Exec. Law § 71, “the AG is further

empowered to appear in defense of state statutes whenever their constitutionality is called into

question,” does not demonstrate the requisite connection with enforcement of the statute. Mendez

v. Heller, 530 F.2d 457 (2d Cir. 1976); see also Burke v. Verizon Commc’ns, Inc., No. 18 Civ.

4496, 2020 WL 4741043, at *3 (S.D.N.Y. Aug. 17, 2020) (finding that the Attorney General was

not a necessary party to the action because the single reference to the Attorney General in the

amended complaint alleged, “the NYS Attorney General was added as a required party in order

to challenge New York State Labor Law 190 . . . as unconstitutional . . . [and] that statute

provides that enforcement authority is not even with the NY AG but rather is with the

Commissioner of Labor”), report and recommendation adopted, 2020 WL 6538748 (S.D.N.Y.

Nov. 6, 2020); Sabin v. Nelson, No. 7:12-cv-1373, 2014 WL 2945770, at *2 (N.D.N.Y. June 30,

2014) (“[D]efendants have asserted that enforcement of the New York Human Rights Law rests

with the Division of Human Rights, … and there are no allegations to the contrary in [the]

complaint. [The plaintiff] has also failed to allege in his complaint how [the New York State

Attorney General] . . . ha[s] enforced the particular laws he alleges to be unconstitutional . . .

[and,] therefore, offered no basis on which the court could find that [the Attorney General] ha[s]

some connection with the enforcement of the statutes in question or any acts taken pursuant

thereto.”); Ulrich v. Mane, 383 F. Supp. 2d 405, 410 (E.D.N.Y. 2005) (finding that the Attorney

General had no connection with the enforcement of N.Y. Elec. Law § 6-136(2)(a), and, thus, was

not a proper party to the suit, where “[t]he plaintiffs’ complaint states that the Attorney General

is sued herein solely because this action challenges the constitutionality of provisions of the New

York State Election Law.”); Johnson v. Rockefeller, 58 F.R.D. 42, 46 (S.D.N.Y. 1973)

(“Plaintiffs contend that Attorney General Lefkowitz is a proper defendant since all of the named

plaintiffs wish to sue the state and the Attorney General is obligated by law to ‘defend all actions

and proceedings in which the state is interested.’ New York Executive Law § 63(1) (McKinney,

1972). . . . The question is not whether the Attorney General would be obligated, if the plaintiffs

at a future time institute suit against the state, to defend that suit, but rather whether he is

obligated to enforce the statute here attacked. No such obligation exists and, accordingly, the

motion to dismiss as to the Attorney General is granted.”).

In Mendez, the Second Circuit held that since the Attorney General of the State of New

York had no connection with the enforcement of the statute the plaintiff challenged as

unconstitutional, i.e., the durational residency requirement of N.Y. Dom. Rel. Law § 230(5), he

could not be a party to the suit. Mendez, 530 F.2d at 460. The Court held that although the

Attorney General “has a duty to support the constitutionality of challenged state statutes, N.Y.

Exec. Law § 71 (McKinney 1972), and to defend actions in which the state is ‘interested’, N.Y.

Exec. Law § 63(1) (McKinney 1972), the Attorney General does so, not as an adverse party, but

as a representative of the State’s interest in asserting the validity of its statutes.” Id.

Moreover, contrary to Plaintiffs’ contention, the Attorney General’s discretionary

authority to seek enforcement against “illegal acts” under Executive Law § 63(12) does not

bestow a particular duty upon her to enforce Part A of CEEFPA sufficient to invoke the Ex parte

Young exception to sovereign immunity. The Attorney General is authorized under Executive

Law § 63(12) to seek, inter alia, an injunction “[w]henever any person shall engage in repeated

fraudulent or illegal acts or otherwise demonstrate persistent fraud or illegality in the carrying

on, conducting or transaction of business.” N.Y. Exec. Law § 63(12). Although this statute

would allow the Attorney General to pursue claims against those who engage in repeated or

persistent violations of CEEFPA, it does not create a particular duty to enforce Part A of

CEEFPA itself that would make the Attorney General the appropriate state defendant for a pre-

enforcement lawsuit like this one seeking prospective relief. See HealthNow New York, Inc. v.

New York, 739 F. Supp. 2d 286, 295 (W.D.N.Y. 2010) (“[T]he Attorney General’s general

authority to investigate and enforce the laws of New York State pursuant to Executive Law §

63(12) is not a sufficient connection to support an exception to sovereign immunity under Ex

parte Young for the Attorney General to be a proper party in the instant case”), aff’d on other

grounds, 448 F. App’x 79 (2d Cir. Sept. 12, 2011) (summary order). Indeed, because Executive

Law § 63(12) gives the Attorney General broad authority to investigate and pursue claims for

injunctive relief whenever a person engages in any repeated or persistent illegality in the conduct

of business, relying solely on § 63(12) to find a particular duty to enforce a specific state law

would impermissibly allow lawsuits against the Attorney General to try to invalidate nearly any

statute that regulates “the carrying on, conducting or transaction of business.” HealthNow, 739 F.

Supp. 2d at 297 (“If a federal case could be made for the purpose of testing the constitutionality

of a state statute merely by naming any state official in an injunction suit, the limited exception

of Ex parte Young would be stretched far beyond its intended purpose.”); see also Children’s

Healthcare is a Legal Duty, Inc. v. Deters, 92 F.3d 1412, 1416 (6th Cir. 1996) (“Holding that a

state official’s obligation to execute the laws is a sufficient connection to the enforcement of a

challenged statute would extend Young beyond what the Supreme Court has intended and held.”

(citing, inter alia, Mendez, 530 F.2d at 460)); Shell Oil Co. v. Noel, 608 F.2d 208, 211 (1st Cir.

1979) (“[T]he mere fact that an attorney general has a duty to prosecute all actions in which the

state is interested [is not] enough to make him a proper defendant in every such action.”).

HealthNow challenged the constitutionality of New York’s Anti–Subrogation Law,

codified at N.Y. Gen. Oblig. Law § 5-335. The district court held, inter alia, that “[t]he general

authority to enforce the laws of the state is not sufficient to name a state officer as a defendant in

an action challenging a law,” HealthNow, 739 F. Supp. 2d at 294, and that “[f]or a state officer to

be a proper party, both a ‘particular duty to enforce the statute in question’ and a ‘demonstrated

willingness to exercise that duty’ are needed.”10 Id.; accord Kelly v. New York State Civ. Serv.

Comm’n, No. 14 CV 716(VB), 2015 WL 861744, at *3 (S.D.N.Y. Jan. 26, 2015), aff’d, 632 F.

10 Plaintiffs challenge HealthNow’s holding “that ‘a “particular duty to enforce the statute in question” and a

“demonstrated willingness to do so” are needed’ to name a state official as a defendant,” (Plf. Opp. at 11-12 (quoting

739 F. Supp. 2d at 294 (quoting Ex parte Young, 209 U.S. at 161)), on the basis that “no such language appears in Ex

Parte Young.” (Plf. Opp. at 11-12). While the quote by HealthNow may be erroneous, Ex parte Young does, in fact,

hold that “individuals who, as officers of the state, are clothed with some duty in regard to the enforcement of the laws

of the state, and who threaten and are about to commence proceedings, either of a civil or criminal nature, to enforce

against parties affected an unconstitutional act, violating the Federal Constitution, may be enjoined by a Federal court

of equity from such action.” 209 U.S. at 155-56, 28 S. Ct. 441 (emphasis added).

App’x 17 (2d Cir. Jan. 25, 2016) (“[T]o avoid the Eleventh Amendment bar, the state officer

against whom prospective relief is sought must have some connection with the enforcement of

the act that is in continued violation of federal law.”); see also Citizens Union of City of N.Y. v.

Att’y Gen. of N.Y., No. 16 Civ. 9592, 2017 WL 2984167, at *4 (S.D.N.Y. June 23, 2017) (“[T]o

avoid the Eleventh Amendment bar, the state officer against whom prospective relief is sought

must have some connection with the enforcement of the act that includes both a particular duty to

enforce the statute in question and a demonstrated willingness to exercise that duty.”);

Hendrickson v. AFSCME Council 18, --- F.3d ---, 2021 WL 1152656, at *11 (10th Cir. Mar. 26,

2021) (“Ex parte Young does not require that the state official have a ‘special connection’ to the

unconstitutional act or conduct. . . . But it does require that the state official have a particular

duty to ‘enforce’ the statute in question and a demonstrated willingness to exercise that duty.”);

281 Care Comm. v. Arneson, 766 F.3d 774, 797 (8th Cir. 2014) (“The Ex parte Young exception

only applies against officials who threaten and are about to commence proceedings, either of a

civil or criminal nature, to enforce against parties affected an unconstitutional act, violating the

Federal Constitution.”).

“A plaintiff properly invokes the Ex parte Young exception only when state officials are

actively violating federal law or imminently threatening acts that the plaintiff challenges as

unconstitutional.” HealthNow, 739 F. Supp. 2d at 294. The district court found, inter alia, that

since the Attorney General of the State of New York was “nowhere tasked with the enforcement

of the Anti–Subrogation Law—neither by the Anti–Subrogation Law itself, nor by a special

charge within the state’s Executive Law § 63(12), . . . the Attorney General lacks the required

enforcement ‘connection.’” Id. at 295. The court further held that “the Attorney General’s

general authority to investigate and enforce the laws of New York State pursuant to Executive

Law § 63(12) is not a sufficient connection to support an exception to sovereign immunity under

Ex parte Young for the Attorney General to be a proper party in the instant case.” Id.

The cases Plaintiffs cite which found that the Attorney General was a proper party are

distinguishable. In Federal National Mortgage Association v. Lefkowitz, 383 F. Supp. 1294

(S.D.N.Y. 1974), the plaintiff challenged the constitutionality of Chapter 119 of the Laws of

1974, requiring mortgage investing institutions, such as the plaintiff, “to pay interest of at least

two percent on ‘escrow accounts’.” Id. at 1295. The district court found that N.Y. Exec. Law §

63(12) sufficiently established the attorney general’s status as a party in that case because

pursuant to that statute:

“the Attorney General can affirmatively seek an injunction whenever a person

engages in repeated illegal acts or otherwise demonstrates persistent illegality in

the carrying on, conducting or transaction of business. If FNMA fails to comply

with the provisions of Chapter 119, it would be engaging in such repeated and

persistent violations of a statute. Chapter 119 places on plaintiff a continuing

obligation to pay interest on its ‘escrow accounts’. It should be noted that FNMA

estimates that it holds about $5.6 million in ‘escrow accounts’ established under

13,990 FHA-insured or VA guaranteed pre-August 10, 1970 mortgages, all secured

by property in New York State. Since these mortgages have an average life of about

twelve years, FNMA’s liability— if the rate set by the banking board were only

two percent— would be $112,000 per year, or over $1.3 million during the twelve

year period. Failure to make such annual payments would clearly amount to the

type of persistent, illegality which the State Attorney General could attempt to

enjoin under § 63(12). Thus, the requirement of Ex Parte Young, supra, 209 U.S.

123, 28 S. Ct. 441, 52 L. Ed. 714— that there exist some connection with the

enforcement of Chapter 119 by virtue of the office held by the party defendant—

is met.”

Id. at 1296-97. Unlike CEEFPA Part A, which merely imposes litigation-related procedural

requirements with which Plaintiffs must comply in order to commence and prosecute eviction

proceedings in New York state courts, the law at issue in that case imposed upon the plaintiff a

continuing obligation, i.e., to pay interest to mortgage investing institutions. The district court

found that the plaintiff, by bringing the action seeking an injunction enjoining the allegedly

unconstitutional law, “ha[d] announced its intention to defy the statute in its entirety and utterly

to ignore its mandate [to pay interest to mortgage investing institutions];” and held, “[s]urely

such defiance, if carried out, would constitute persistent conduct sufficient to trigger the

Attorney General’s § 63(12) obligation to enforce the law.” Id. at 1297; cf. HealthNow, 739 F.

Supp. 2d at 296 (distinguishing Lefkowitz on the basis, inter alia, that the challenged statute

assigned an affirmative obligation to the plaintiffs with which they failed or refused to comply);

cf. Morales v. Trans World Airlines, Inc., 504 U.S. 374, 381, 112 S. Ct. 2031, 119 L. Ed. 2d 157

(1992) (“In Ex parte Young, . . . we held that this doctrine [that courts of equity should not act

when the moving party has an adequate remedy at law] does not prevent federal courts from

enjoining state officers who threaten and are about to commence proceedings, either of a civil or

criminal nature, to enforce against parties affected an unconstitutional act, violating the Federal

Constitution. When enforcement actions are imminent--and at least when repetitive penalties

attach to continuing or repeated violations and the moving party lacks the realistic option of

violating the law once and raising its federal defenses--there is no adequate remedy at law.”). To

the contrary, Plaintiffs have not alleged or indicated in any way that they intend to participate in

any repeated or persistent violations of Part A of CEEFPA sufficient to trigger a duty on the part

of the Attorney General to act under N.Y. Exec. Law § 63(12).

The case Schoenefeld v. New York, No. 1:09–CV–0504, 2010 WL 502758 (N.D.N.Y.

Feb. 8, 2010), is also distinguishable because that case challenged that constitutionality of the

alleged requirement of § 470 of the New York State Judiciary Law that a nonresident New York

attorney “may not practice law in the State of New York unless she maintains an office located

in the state.” 2010 WL 502758, at *1. The district court found that the Attorney General had

“some connection to the alleged violation” and was a proper party to the action because the

Attorney General “is tasked with enforcing laws prohibiting the unlawful practice of law” under

N.Y. Jud. Law § 476-a. Schoenefeld, 2010 WL 502758, at *4. Unlike Schoenfeld, the Attorney

General is not statutorily tasked with enforcing any of the challenged provisions of Part A of

CEEFPA.

In Association of American Medical Colleges v. Carey, 482 F. Supp. 1358 (N.D.N.Y.

1980), the district court found that N.Y. Exec. Law §§ 63 (1) and (12) were sufficient to name

the Attorney General as a defendant in the action11, holding, in pertinent part:

“While the Court is not prepared to state that the foregoing provisions would in

every case provide a sufficient basis for making the Attorney General a defendant,

they suffice in this instance. Although it is true that the Commissioner of Education

has the duty to enforce the Education Law pursuant to § 305(1), in his initial impact

statement on the Testing Law, dated October 16, 1979, Commissioner Ambach,

while admitting an obligation to monitor compliance with the law, stated that

violations would be brought to the attention of the Attorney General. Furthermore,

the Court is aware that plaintiff does not look favorably upon the testing legislation

and could conceivably choose to violate its provisions, in which case the Attorney

General would be empowered to act under the Executive Law s 63(12) to enjoin

the violations. See Federal National Mortgage Ass'n. v. Lefkowitz, supra.”

Id. at 1364. However, this Court is not persuaded by the district court’s holding in that case,

particularly in light of Mendez, to which the decision makes no reference.12 Discretionary

authority to seek relief for any source of illegality under N.Y. Exec. Law § 63(12) is not the

same as a particular duty to enforce a specific statute sufficient to invoke the Ex parte Young

exception to Eleventh Amendment immunity.

11 The district court’s reliance upon N.Y. Exec. Law § 63(1) directly contravenes the Second Circuit’s holding in

Mendez, 530 F.2d at 460.

12 Indeed, “subsequent decisions from courts in this Circuit have declined to follow Carey, some going as far to say

it ‘has been soundly rejected.’” Citizens Union, 2017 WL 2984167, at *4 (quoting United States v. New York, No.

5:04-CV-00428, 2007 WL 951576, at *2 (N.D.N.Y. Mar. 27, 2007)); see, e.g. Warden v. Pataki, 35 F. Supp. 2d 354,

359 (S.D.N.Y. 1999) (rejecting Carey and dismissing claims against the State Defendants on the basis that “the vast

majority of courts to consider the issue have held . . . that a state official’s duty to execute the laws is not enough by

itself to make that official a proper party in a suit challenging a state statute.” (citing cases including Mendez)), aff’d

sub nom Chan v. Pataki, 201 F.3d 430, 1999 WL 1012404 (Table) (2d Cir. Oct. 20, 1999) (unpublished opinion).

The case Arkansas United v. Thurston, No. 5:20-CV-5193, 2021 WL 411141 (W.D. Ark.

Feb. 5, 2021), cited by Plaintiffs as support for their contention that the Attorney General cannot

“credibly claim that she has no willingness” to enforce Part A of CEEFPA “[i]n light of the AG’s

public guidance regarding the implementation of CEEFPA and its Hardship Declaration

requirements, as well as her demonstrated willingness to enforce New York’s eviction

moratoria,” (Plf. Opp. at 15), is inapposite. The plaintiffs in that case sought an injunction: (i)

prohibiting enforcement of state statutes challenged as violating the Supremacy Clause of the

Constitution and being preempted by Section 208 of the Voting Rights Act (“VRA”), 52 U.S.C.

§ 10508; and (ii) directing Defendants to implement a remedial plan to ensure that voters with

limited English proficiency are permitted to receive assistance from an individual of their choice

when voting in future elections.”13 Thurston, 2012 WL 411141 at *2. In finding that the State

Defendants, including the Secretary of State of Arkansas and the members of the Arkansas State

Board of Election Commission, were proper defendants, the district court relied upon the

plaintiffs’ allegations “that the state Board of Election Commissioners ‘is responsible for, among

other duties, providing statewide guidance and training to election officers and county election

commissioners’ and that the Board ‘issues a manual of procedures for county election

commissions as well as additional training materials for election officials[;]’ . . . [and that]

Secretary Thurston is the chairperson of the Board and oversees the state Election Division.” Id.

13 “Under Arkansas Code § 7-1-103(a)(19)(C) and (b)(1), a person who assists a voter ‘in marking and casting the

voter’s ballot except as provided in § 7-5-310’ is potentially subject to criminal misdemeanor penalties. While Section

7-5-310(4)(A)(i) provides that the voter may be assisted by a person of his or her choice, Section 7-5-310(b)(4)(B)

adds the restriction that ‘[n]o person other than [poll workers] shall assist more than six (6) voters in marking and

casting a ballot at an election[.]’ Section 7-5-310(b)(5) further provides that ‘[i]t shall be the duty of the poll workers

at the polling site to make and maintain a list of the names and addresses of all persons assisting voters.’ Plaintiffs

argue[d] that this six-voter limit on assistance under Arkansas law, enforceable by criminal misdemeanor penalties,

violates Section 208 of the VRA, which provides that ‘[a]ny voter who requires assistance to vote by reason of

blindness, disability, or inability to read or write may be given assistance by a person of the voter's choice, other than

the voter’s employer or agent of that employer or officer or agent of the voter’s union.’ 52 U.S.C. § 10508.” Thurston,

2021 WL 411141, at * 2.

at *8. The district court held that, “[i]n pleading that State Defendants are responsible for

training the county election commissioners on their legal duties, Plaintiffs have shown a

sufficient connection with the enforcement of the six-voter limit to allow them to seek relief

against those officials under Ex parte Young.” Id. (emphasis added). Unlike that case, which

involved distinct issues of election law and the State Defendants’ complete oversight of and

responsibility for county election commissioners’ training and compliance with all election laws,

the Attorney General is not charged under New York state law with complete oversight and

responsibility for sheriffs’ and law enforcement officers’ training and compliance with any law.

Recently, the United States Court of Appeals for the Fifth Circuit held:

“Although the precise scope of the requirement for a connection has not been

defined, the plaintiff at least must show the defendant has the particular duty to

enforce the statute in question and a demonstrated willingness to exercise that duty.

. . . That means the official must be statutorily tasked with enforcing the challenged

law. . . . Enforcement typically means compulsion or constraint. . . . A scintilla of

‘enforcement’ by the relevant state official with respect to the challenged law will

do. . . .

Determining whether Ex parte Young applies to a state official requires a provision-

by-provision analysis, i.e., the official must have the requisite connection to the

enforcement of the particular statutory provision that is the subject of the litigation.”

Texas Democratic Party v. Abbott, 978 F.3d 168, 179 (5th Cir. 2020), cert. denied, 141 S. Ct.

1124 (2021). The Court further held that “the required connection is not merely the general duty

to see that the laws of the state are implemented, but the particular duty to enforce the statute in

question and a demonstrated willingness to exercise that duty,” id. at 181; and that the Attorney

General’s “general duty to enforce the law is insufficient for Ex parte Young.” Id. In finding that

the Attorney General lacked the requisite connection to the challenged law at issue in that case

for Ex parte Young to apply, the Court held:

“The plaintiffs also focus us on the letter sent by the Attorney General. True, we

applied the Ex parte Young exception to this Attorney General after his office sent

to a manufacturer numerous ‘threatening letters’ that ‘intimat[ed] that formal

enforcement’ of the Texas Deceptive Trade Practices Act ‘was on the horizon.’

NiGen Biotech, L.L.C. v. Paxton, 804 F.3d 389, 392, 397 (5th Cir. 2015).

Conversely, we have declined to apply Ex parte Young where the Attorney General

issued a press release warning that anyone who violated the Governor’s recent

emergency order would be ‘met with the full force of the law.’ In re Abbott, 956

F.3d [696,] 709 [5th Cir. 2020]14. We explained that ‘our cases do not support the

proposition that an official’s public statement alone establishes authority to enforce

a law, or the likelihood of his doing so, for Young purposes.’ Id.

Unlike NiGen, the Attorney General’s letter in this case was sent to judges and

election officials, not to the plaintiffs. The letter did not make a specific threat or

indicate that enforcement was forthcoming. Nor did it state that the Texas

Democratic Party or the other plaintiffs had violated any specific law, as the letter

did in NiGen, 804 F.3d at 392. Instead, the letter explained that advising voters to

pursue disability-based mail-in voting without a qualifying condition constituted a

felony under Sections 84.0041 and 276.013 of the Texas Election Code. As a result,

we conclude that the letter here did not ‘intimat[e] that formal enforcement was on

the horizon.’ Id. Instead, it closely reflected the Attorney General’s letter in In re

Abbott, 956 F.3d at 709. Accordingly, the Attorney General lacks a requisite

connection to the challenged law, and Ex parte Young does not apply to him.”

Abbott, 978 F.3d at 181 (emphasis added).

Plaintiffs cite no authority, nor did the Court find any, for the proposition that an

official’s public statements and guidance to other state officials are sufficient to establish either

the official’s authority to enforce a law or her willingness to do so. To the contrary, as set forth

above, the Fifth Circuit expressly rejected that proposition, and Ex parte Young suggests that the

official’s connection with the enforcement of the act must arise out of the state’s law, whether it

be by the challenged act itself or the general law. See Ex parte Young, 209 U.S. at 157, 28 S. Ct.

441; see also HealthNow, 739 F. Supp.2d at 295 (“The actual enforcement connection may be

found either in the challenged statute itself or the general laws of the state. . . . While it is not

necessary that the officer’s enforcement duties be noted in the act, . . . the connection can be

14 The Supreme Court of the United States subsequently granted certiorari, vacated the judgment entered in In re

Abbott, 956 F.3d 696, and remanded the case to the Fifth Circuit with instructions to dismiss the case as moot. Planned

Parenthood Ctr. for Choice v. Abbott, 141 S. Ct. 1261 (2021) (citing United States v. Munsingwear, Inc., 340 U.S. 36,

71 S. Ct. 104, 95 L. Ed. 2d 36 (1950)).

found implicitly elsewhere in the laws of the state [] so long as those duties have the same effect

as a special charge in the challenged statute.”); Kelly, 2015 WL 861744, at *3 (accord). Indeed,

Ex parte Young phrased the relevant question as being “whether the attorney general had, by the

law of the state, so far as concerns the[] . . . acts [at issue], any duty with regard to the

enforcement of the same.” Id. at 160 (emphasis added).

The Attorney General’s provision of general guidance about the plain terms of Part A of

CEEFPA to those charged with enforcing its provisions does not demonstrate either that the

Attorney General has a particular duty to enforce Part A of CEEFPA or the requisite willingness

to do so against Plaintiffs. Indeed, the fact that the Attorney General provided general

information to the local law enforcement officers who are directly responsible for complying

with the restrictions on the execution of eviction warrants in Part A of CEEFPA underscores that

it is other state and local officials, rather than the Attorney General, who have the particular duty

to administer or enforce the provisions of CEEFPA Part A. To hold that general guidance to

local officials about their responsibilities in administering a state statute equates to a particular

duty to enforce the statute would impermissibly extend the limited exception of Ex parte Young

far beyond its intended purpose. Since neither CEEFPA itself nor the Attorney General’s general

authority under N.Y. Executive Law §§ 63(1), 63(12) or 71 charges her with a particular duty to

enforce Part A of CEEFPA, the Ex parte Young exception to Eleventh Amendment immunity

does not apply in this case. Without the required enforcement connection to Part A of CEEFPA,

the Attorney General is not a proper party to this action. Accordingly, Defendant’s motion to

dismiss is granted and this case is dismissed in its entirety for lack of subject matter

jurisdiction.15

15 In light of this determination, Plaintiffs’ motion for a preliminary injunction is denied.

III. CONCLUSION

For the reasons set forth herein, the Attorney General’s motion to dismiss is granted, this

case is dismissed in its entirety for lack of subject matter jurisdiction, and Plaintiffs’ motion for a

preliminary injunction is denied.

SO ORDERED.

_/s/ JOANNA SEYBERT____

Joanna Seybert

United States District Judge

Dated: April 14, 2021

Central Islip, New York