“[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