Opinion

Women of Color for Equal Justice v. The City of New York

Court
District Court, E.D. New York
Filed
Nov 15, 2022
Cited by
0 cases
Authority
More cited than 26.7%

“[T]he movant cannot prevail by showing a mere possibility of success . . . .”

How later courts described this case

  • “[T]he movant cannot prevail by showing a mere possibility of success . . . .”

Written by the judges who cited it.

The opinion

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

------------------------------------x

WOMEN OF COLOR FOR EQUAL JUSTICE et

al.,

MEMORANDUM & ORDER

Plaintiffs, 22-CV-2234(EK)(LB)

-against-

THE CITY OF NEW YORK et al.,

Defendants.

------------------------------------x

ERIC KOMITEE, United States District Judge:

The second application for a temporary restraining

order, ECF No. 33, is denied, as Plaintiffs again have not

established a sufficient likelihood of success on the merits.

Plaintiffs have not shown that a private right of

action exists to sue under the Occupational Health and Safety

Act of 1970, 29 U.S.C. §§ 651–678, on which they rely. Mem. of

Law in Supp. of Pls.’ Renewed Appl. for TRO 7, ECF No. 33-2; see

Donovan v. Occupational Safety & Health Rev. Comm’n, 713 F.2d

918, 926 (2d Cir. 1983) (“Under OSHA, employees do not have a

private right of action.”); see also Quirk v. DiFiore, 582 F.

Supp. 3d 109, 115 (S.D.N.Y. 2022) (“The last of Quirk’s federal

law claims are for violations of OSHA regulations; these claims

all fail because Quirk cannot bring a lawsuit under OSHA.”).1

1 Unless otherwise noted, when quoting judicial decisions this order

accepts all alterations and omits all citations and internal quotation marks.

Nor have Plaintiffs shown that any of the City’s

vaccine orders were premised on New York Public Health Law

§ 206(1)(l), such that the withholding of authorization to

conduct mandatory immunization would apply. See Pls.’ Renewed

Mot. for TRO 2, ECF No. 33. The limitation contained in the

final sentence of that provision, by its terms, limits only the

powers granted by Section 206(1)(l) itself. See Marciano v. de

Blasio, 589 F. Supp. 3d 423, 434 (S.D.N.Y. 2022) (“[A]s the [New

York] Court of Appeals explained in Garcia [v. N.Y.C. Dep’t of

Health & Mental Hygiene, 106 N.E.3d 1187 (N.Y. 2018)], [Section

206(1)(l)] [is] directed to the powers and duties of the

Commissioner of the New York State Department of Health and in

no way limit[s] the New York City Department or its Commissioner

from issuing separate and independent vaccine requirements.”);

see also C.F. v. N.Y.C. Dep’t of Health & Mental Hygiene, 139

N.Y.S.3d 273, 284 (App. Div. 2d Dep’t 2020) (“[Section

206(1)(l)] [is] directed to the powers and duties of the

Commissioner of the State Department of Health, not of the New

York City Board, and the legislative history reveals no intent

to restrict the Board’s authority to regulate

vaccinations.”). Plaintiffs have not shown that any of the

orders they challenge were promulgated under that section.

Plaintiffs’ motion for a stay of this order pending

appeal is denied, as they have not shown the requisite

likelihood of success. See Sutherland v. Ernst & Young LLP, 856

F. Supp. 2d 638, 641 (S.D.N.Y. 2012) (“[T]he movant cannot

prevail by showing a mere possibility of success . . . .”).

SO ORDERED.

/s/ Eric Komitee__________

ERIC KOMITEE

United States District Judge

Dated: November 15, 2022

Brooklyn, New York

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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