Lebovits v. Cuomo

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

________________________________

YITZCHOK LEBOVITS et al.,

1:20-cv-1284

Plaintiffs, (GLS/DJS)

v.

ANDREW M. CUOMO1 et al.,

Defendants.

________________________________

APPEARANCES: OF COUNSEL:

FOR THE PLAINTIFF:

The Becket Fund for Religious Liberty ERIC C. RASSBACH, ESQ.

1919 Pennsylvania Ave. NW MARK RIENZI, ESQ.

Ste 400 DANIEL CHEN, ESQ.

Washington, DC 20006 JOSEPH DAVIS, ESQ.

WILLIAM HAUN, ESQ.

Josh Blackman LLC JOSHUA BLACKMAN, ESQ.

1303 San Jacinto Street

Houston, TX 77002

FOR THE DEFENDANTS:

Andrew M. Cuomo, Letitia James,

Howard A. Zucker, Kathy Hochul &

Mary T. Bassett

New York State Attorney General CHRISTOPHER LIBERATI-

1 Since commencement of this action, Kathy Hochul succeeded Andrew M. Cuomo as

Governor of the State of New York, Eric L. Adams succeeded Bill de Blasio as Mayor of the

City of New York, and Mary T. Bassett succeed Howard A. Zucker as Commissioner of the

New York State Department of Health. Accordingly, Hochul, Adams, and Bassett are

automatically substituted insofar as Cuomo, de Blasio, and Zucker were sued in their official

capacities. See Fed. R. Civ. P. 25(d). Where appropriate, references throughout to the

originally named defendants are to be read to encompass the substituted parties.

The Capitol CONANT, ESQ.

Albany, NY 12224

Bill de Blasio, New York City

Department of Health and Mental

Hygiene, City of New York &

Eric L. Adams

New York City Law Department MELANIE SADOK, ESQ.

100 Church Street HILARY M. MELZER, ESQ.

New York, NY 10007

Gary L. Sharpe

Senior District Judge

MEMORANDUM-DECISION AND ORDER

I. Introduction

Plaintiffs Yitzchok Lebovits and Chana Shapiro-Lebovits, individually

and on behalf of their daughters E.L. and A.L., and Bais Yaakov Ateres

Miriam (BYAM) bring this action against defendants Andrew M. Cuomo,

individually and in his official capacity as Governor of the State of New

York, Letitia James, in her official capacity as Attorney General of the State

of New York, Howard A. Zucker, in his official capacity as Commissioner of

the New York State Department of Health (hereinafter, collectively referred

to as “State Defendants”), Bill de Blasio, individually and in his official

capacity as Mayor of the City of New York, the New York City Department

of Health and Mental Hygiene (DHMH), and the City of New York

2

(hereinafter, collectively referred to as “City Defendants”). (Compl., Dkt.

No. 1.) Plaintiffs allege claims pursuant to 42 U.S.C. § 1983, seeking

declaratory relief, damages, and attorney’s fees. (Id.) Pending are City

Defendants’ motion to dismiss the complaint, (Dkt. No. 51), and State

Defendants’ motion to dismiss the complaint, (Dkt. No. 52).

For the reasons that follow, City Defendants’ motion is granted, and

State Defendants’ motion is granted in part and denied in part, as

described below.

II. Background2

Lebovits and Shapiro-Lebovits are Orthodox Jews, residents of

Inwood, New York, and parents to E.L. and A.L. (Compl. ¶ 11.) BYAM is a

New York religious corporation that operates a religious school for

Orthodox Jewish girls located in Far Rockaway, New York, which is

attended by E.L. and A.L. (Id. ¶¶ 11-12.)

On October 4, 2020, while BYAM was closed during the holiday of

Sukkot, de Blasio announced a plan which would prevent the reopening of

BYAM after the holiday on October 13, 2020 (hereinafter “the ZIP Code

2 The facts are drawn from plaintiffs’ complaint, (Dkt. No. 1), presented in the light

most favorable to them, and from facts of which the court may properly take judicial notice.

See Fed. R. Evid. 201.

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Plan”), because BYAM was located in a ZIP code identified as a COVID-19

“hotspot”. (Id. ¶¶ 95-97.) The ZIP Code Plan would also close

“nonessential” businesses, and require restaurants to serve takeout only in

these “hotspot” ZIP codes. (Id.)

However, Cuomo refused to approve the ZIP Code Plan, “fault[ing]

[it] for relying on ZIP codes, stating that ‘targeting by [ZIP] codes is

imperfect’ because ‘neighborhoods and communities aren’t organized by

[ZIP] codes.’” (Id. ¶¶ 100-01.) Instead, on October 6, 2020, Cuomo

announced the “Cluster Action Initiative,” which “supersed[ed] Mayor de

Blasio’s [ZIP Code plan].” (Id. ¶ 110.) The Cluster Action Initiative

identified at-risk areas by “cluster,” rather than by ZIP code, and divided

those areas into “red,” “orange,” and “yellow” zones, with each zone being

subjected to different levels of COVID-19-related restrictions. (Id. ¶¶ 111-

12.) Of note, the Cluster Action Initiative “close[d] altogether any schools

falling within red or orange zones.” (Id. ¶ 112.)

Cuomo formalized the Cluster Action Initiative by issuing Executive

Order 202.68 (hereinafter “the Order”), which made the Cluster Action

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Initiative restrictions “effective immediately.”3 (Id. ¶ 132.) On October 7,

2020, de Blasio announced that the Order would be enforced in New York

City beginning on October 8, 2020. (Compl. ¶ 133.) BYAM was located in

a red zone and was, thus, “shuttered entirely.” (Id. ¶ 142.)

In the complaint, plaintiffs sought, among other things, declaratory

relief allowing BYAM to reopen on October 27, 2020. (Id. ¶ 144.) Since

the filing of the complaint, there have been a multitude of developments

regarding New York State’s approach to the COVID-19 pandemic, which

have allowed BYAM to open.4 On December 4, 2020, schools within red

and yellow zones were permitted to open, subject to COVID-19 testing

requirements, (Executive Order [A. Cuomo] No. 202.79 [9 NYCRR

8.202.79]), and, on May 6, 2021, Cuomo terminated the Cluster Action

Initiative, (Executive Order [A. Cuomo] No. 202.106 [9 NYCRR 8.202.106]

(“[T]he following directive[] shall no longer be in effect: The [Cluster Action

3 “The . . . [Cluster Action Initiative] shall be effective immediately, and at such time as

notice is provided to such affected areas, may be enforced and shall be enforced no later than

Friday, October 9, 2020, as determined by the county in which the red zones, orange zones,

and yellow zones are located.” (Executive Order [A. Cuomo] No. 202.68 [9 NYCRR

8.202.68]).

4 Although not pertinent to the determination of these motions, based on other filings

in this case, it appears that BYAM was given permission to reopen on October 26, 2020, (Dkt.

No. 20), and, on November 16, 2020, plaintiffs withdrew their application for a temporary

restraining order given that “[d]efendants agreed to allow [BYAM] to reopen,” (Dkt. No. 45).

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Initiative].”)).

Further, Cuomo’s emergency executive powers have been

terminated, (2021 NY Senate Bill 5357, A5967), and, on June 25, 2021,

the COVID-19 state of emergency ended, (Executive Order [A. Cuomo] No.

210 [9 NYCRR 8.210]). Finally, on August 10, 2021, following an

independent investigation conducted by the New York State Attorney

General’s Office, and in the face of a multitude of sexual assault and

sexual harassment allegations, Cuomo announced his resignation as

Governor, effective August 24, 2021.

III. Standard of Review

The standard of review under Fed. R. Civ. P. 12(b)(6) is well settled

and will not be repeated here. For a full discussion of the governing

standard, the court refers the parties to its prior decision in Ellis v. Cohen &

Slamowitz, LLP, 701 F. Supp. 2d 215, 218 (N.D.N.Y. 2010). The standard

of review under Fed. R. Civ. P. 12(b)(1) is similar, except that the court

“may refer to evidence outside the pleadings,” and “[a] plaintiff asserting

subject matter jurisdiction has the burden of proving by a preponderance of

the evidence that it exists.” Makarova v. United States, 201 F.3d 110, 113

(2d Cir. 2000) (citations omitted).

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IV. Discussion

In their motions to dismiss, both City Defendants and State

Defendants seek dismissal of plaintiffs’ requests for declaratory relief on

mootness grounds. (Dkt. No. 51, Attach. 1 at 6-13; Dkt. No. 52, Attach. 1

at 11-14.) Further, City Defendants seek dismissal of plaintiffs’ claims for

damages, because de Blasio is entitled to qualified immunity, (Dkt. No. 51,

Attach. 1 at 15-18), suing de Blasio, in his official capacity, and the DHMH

is duplicative of suing the City of New York, (Dkt. No. 51, Attach. 1 at 13),

and City Defendants were not responsible for plaintiffs’ alleged harm, (Dkt.

No. 51, Attach. 1 at 14-15, 18-19). State Defendants claim that any

damages against Cuomo, James, and Zucker, in their official capacities,

are barred by the Eleventh Amendment, (Dkt. No. 52, Attach. 1 at 14), and

that any claims against Cuomo individually must be dismissed because he

is entitled to legislative immunity, (Dkt. No. 52, Attach. 1 at 14-16).

A. Mootness

Plaintiffs seek a declaration “that [d]efendants must . . . cease

discriminating against [p]laintiffs on the basis of their Orthodox Jewish faith

and . . . permit [p]laintiffs to conduct in-person religious instruction.”

(Compl. at 32.) Defendants argue that the complaint must be dismissed on

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mootness grounds, to the extent that it seeks the above relief, given

subsequent developments related to New York’s handling of the COVID-19

pandemic, including the revocation of the Order, and termination of

Cuomo’s emergency powers and the COVID-19 state of emergency. (Dkt.

No. 51, Attach. 1 at 6-13; Dkt. No. 52, Attach. 1 at 11-14; Dkt. No. 67 at 3-

5; Dkt. No. 69 at 2-5.)

Plaintiffs dispute this, claiming that, while BYAM is now open, a

forced re-closure could reasonably be expected to occur, noting that

“Governor [Hochul] has focused specifically on tightening COVID

restrictions on schools and children,” citing to her imposition of a mask

mandate in schools; and because “the rise of . . . [a new] variant makes the

risk that [d]efendants will swiftly revise the relevant restrictions and

reimpose school closures all the more tangible.” (Dkt. No. 70 at 2-3

(internal quotation marks omitted); Dkt. No. 68 at 2.)

“The voluntary cessation of allegedly illegal conduct usually will

render a case moot if the defendant can demonstrate that (1) there is no

reasonable expectation that the alleged violation will recur and (2) interim

relief or events have completely and irrevocably eradicated the effects of

the alleged violation.” Lamar Adver. of Penn, LLC v. Town of Orchard

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Park, 356 F.3d 365, 375 (2d Cir. 2004) (internal quotation marks and

citation omitted). “Generally, when a lawmaker withdraws an allegedly

unconstitutional law, any plaintiff's request for an injunction against its

application becomes moot.” Lewis v. Cuomo, No. 20-CV-6316, 2021 WL

3163238, at *7 (W.D.N.Y. July 27, 2021) (citing Campbell v. Greisberger,

80 F.3d 703, 706 (2d Cir. 1996)). “[C]laims will not be found moot where

the defendant’s amendments [to the law] are merely superficial or the law,

after amendment, suffers from similar infirmities as it did at the outset.”

Lamar, 356 F.3d at 378.

Given that, on December 4, 2020, schools within red and yellow

zones were permitted to open, subject to COVID-19 testing requirements,

(Executive Order [A. Cuomo] No. 202.79 [9 NYCRR 8.202.79]), and, on

May 6, 2021, Cuomo terminated the entire Cluster Action Initiative by

revoking the Order, (Executive Order [A. Cuomo] No. 202.106 [9 NYCRR

8.202.106] (“[T]he following directive[] shall no longer be in effect: The

[Cluster Action Initiative].”)), “interim relief or events have completely and

irrevocably eradicated the effects of the alleged violation,” Lamar, 356 F.3d

at 375. Put plainly, BYAM is now open.

Further, “there is no reasonable expectation that the alleged violation

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will recur.” Lamar, 356 F.3d at 375. Given the revocation or termination of

the Governor’s emergency powers and the COVID-19-related state of

emergency, Governor Hochul is without the same unilateral authority that

Cuomo had at the time he imposed the Cluster Action Initiative.

Considering this, along with the current state of the COVID-19 pandemic, it

is unlikely that BYAM will face a state-mandated school shut down again.

See Dark Storm Industries LLC v. Hochul, No. 20-2725-cv, 2021 WL

4538640, at *1 (2d Cir. Oct. 5, 2021) (holding, where plaintiffs were

disputing the mootness of their claims by arguing that COVID-19 “is a sui

generis worldwide situation that has created a state of extreme flux and

almost certainly will require varying responses by state executive

branches,” that “[p]laintiffs do not remain under a constant threat of . . .

restrictions. Nor do recent developments suggest that they may recur . . .

in fact, quite the opposite, as a recent increase in COVID-19 cases has

prompted neither a renewed disaster emergency declaration nor an order

closing businesses.” (internal quotation marks and citations omitted)); see

also Conn. Citizens Defense League, Inc. v. Lamont, 6 F.4th 439, 446 (2d

Cir. 2021) (“Particularly in view of the mitigation measures that have

become available to combat the spread of COVID-19, and the providential

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infrequency of pandemics, [the alleged violation’s reoccurrence] is

speculative, even if [the Governor’s authority to do so] were granted (which

itself is a contingency).”); Lewis, 2021 WL 3163238, at *8 (W.D.N.Y. July

27, 2021) (denying injunctive relief as moot where “the challenged conduct

. . .ceased” due to the termination of Cuomo’s emergency powers, the end

of the state of emergency, and the recision of the “allegedly

unconstitutional statute and executive orders,” and that because of the

“revocation of the . . . Governor’s expanded emergency powers by the . . .

legislature, the Court finds that there is no reasonable expectation of a

recurrence” (internal quotation marks and citation omitted)). In light of the

foregoing, plaintiffs’ claims for declaratory relief are dismissed as moot.

B. City Defendants’ Motion Regarding Damages

With respect to plaintiffs’ claims seeking damages, City Defendants

contend that the complaint lacks sufficient factual allegations establishing

that they were involved in the alleged harm, because they were merely

enforcing the Order, which was not drafted or issued by any of the City

Defendants, and, thus, must be dismissed.5 (Dkt. No. 51, Attach. 1 at 14,

5 City Defendants also claim de Blasio is entitled to qualified immunity, (Dkt. No. 51,

Attach. 1 at 15-18), and that suing de Blasio, in his official capacity, and the DHMH, is

duplicative of suing the City of New York, (Dkt. No. 51, Attach. 1 at 13). As explained below,

11

18-19; Dkt. No. 57 at 6-9.)

Plaintiffs argue that, while City Defendants did not draft or issue the

Order, the Order authorized them to enforce the Cluster Action Initiative,

but did not mandate it, and, thus, they can be held liable for choosing to

enforce it. (Dkt. No. 55 at 30 (“[T]he City’s enforcement actions against

BYAM and other religious gatherings manifest its authority and

discretion.”)) Plaintiffs focus on the following language in support of their

assertion that City Defendants had discretion in whether or not they chose

to enforce the Order: “[The Cluster Action Initiative] may be enforced and

shall be enforced . . . , as determined by the county in which the red zones,

orange zones, and yellow zones are located.” (Dkt. No. 55 at 30.)

Plaintiffs further contend that de Blasio may be liable for damages

stemming from the enforcement of the Order because “[b]y proposing the

initial ZIP-code targeting effort [that] Governor Cuomo would refine, Mayor

de Blasio certainly helped others violate the Constitution.” (Dkt. No. 55

at 31-32.)

“To sustain a § 1983 claim, the plaintiff must show that there was

because the complaint fails to sufficiently allege involvement in the alleged harm by City

Defendants, the court need not reach these issues.

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sufficient personal involvement in the alleged constitutional deprivations on

the part of the defendants.” Zdziebloski v. Town of East Greenbush, 336

F. Supp. 2d 194, 201-02 (N.D.N.Y. 2004) (citing Moffitt v. Town of

Brookfield, 950 F.2d 880, 886 (2d Cir.1991)) (other citation omitted). In

order to hold a municipality liable within the meaning of § 1983, a plaintiff

must establish that the municipality itself was somehow at fault. See

Oklahoma City v. Tuttle, 471 U.S. 808, 810 (1985).

“Municipal liability may attach under § 1983 when a city policymaker

takes action that violates an individual’s constitutional rights.” Gronowski

v. Spencer, 424 F.3d 285, 296 (2d Cir. 2005). Where a municipality is

merely carrying out a state law, it may still be liable under § 1983 when it

makes a “meaningful” and “conscious” choice to carry out that law. Vives

v. City of New York, 524 F.3d 346, 351, 353 (2d Cir. 2008); see Dudek v.

Nassau Cty. Sheriff’s Dept., 991 F. Supp. 2d 402, 411 (E.D.N.Y. 2013).

“Freedom to act is inherent in the concept of choice.” Vives, 524 F.3d

at 352 (internal quotation marks omitted). “[A] municipality’s ‘decision’ to

fulfill a mandatory obligation does not constitute a ‘choice.’” Id. at 353 n.4.

Here, City Defendants had no choice when it came to enforcing the

Order. In relevant part, the Order states:

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The above directive shall be effective immediately,

and at such time as notice is provided to such

affected areas, may be enforced and shall be

enforced no later than Friday, October 9, 2020, as

determined by the county in which the red zones,

orange zones, and yellow zones are located.

(Executive Order [A. Cuomo] No. 202.68 [9 NYCRR 8.202.68]). Further,

the full text of the Order uses the word “shall” numerous times when

directing how the Order is to be enforced.6 Id. The Order mandated the

implementation and enforcement of the Cluster Action Initiative, and was

not simply recommending or authorizing it. “[A]s determined by the county”

simply means that the various counties will be responsible for enforcing the

Order with their own employees and resources, rather than the State’s.

Given that the Order mandated enforcement of the Cluster Action Initiative,

City Defendants cannot be held liable under § 1983 for enforcing it. Vives,

524 F.3d at 353 n.4 (“[A] municipality’s ‘decision’ to fulfill a mandatory

obligation does not constitute a ‘choice.’”).

Finally, de Blasio may not be held liable for damages stemming from

the enforcement of the Order simply because he “propos[ed] the initial

6 For example: “The Department of Health shall determine areas in the State that

require enhanced public health restrictions based upon cluster-based cases of

COVID-19. . . .”; “Based upon the severity of the cluster, the [DHMH] shall adopt in most

severe, or ‘red zones,’ the following mitigation measures. . . .” Id.

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ZIP-code targeting effort [that] Governor Cuomo would refine.” (Dkt.

No. 55 at 31-32.) The fact that de Blasio previously proposed a regulation

that was never adopted, and, in fact, was rejected by Cuomo is not enough

to establish personal involvement for purposes of § 1983. See Zdziebloski,

336 F. Supp. 2d at 202 (“Involvement in discussions that lead to a decision

is not personal involvement under § 1983.”); see also Schallop v. N.Y.

State Dept. of Law, 20 F. Supp. 2d 384, 392 (N.D.N.Y. 1998)

(“[P]articipat[ing] in discussions leading to the decision on [plaintiff’s]

employment . . . fails to establish personal involvement under section

1983.”). Given that enforcement of the Order by City Defendants was

mandatory, and because de Blasio’s proposal of the rejected Zip Code

Plan cannot alone establish his personal involvement the in plaintiffs’

alleged constitutional deprivations, City Defendants’ motion to dismiss the

claims against them for damages is granted.

C. State Defendants’ Motion Regarding Damages

State Defendants seek dismissal of the complaint insofar that it

seeks damages against them in their official capacities, because such

damages are barred by the Eleventh Amendment. (Dkt. No. 52, Attach. 1

at 14.) The court agrees. “The Eleventh Amendment . . . bars damages

15

claims brought against . . . individual state defendants in their official

capacities.” Morabito v. New York, 803 F. App’x 463, 465 (2d Cir. 2020)

(citation omitted). Further, “[i]t is well settled that § 1983 does not override

Eleventh Amendment immunity.” Id. (citation omitted). Therefore,

plaintiffs’ claims seeking damages from Cuomo, James, and Zucker in their

official capacities, are dismissed.

State Defendants seek dismissal of the damages claims against

Cuomo in his individual capacity as well, claiming that he is entitled to

legislative immunity. (Dkt. No. 52, Attach. 1 at 14-16; Dkt. No. 58 at 5-6.)

In making this claim, they argue that the Order is legislative in form

because the New York State Legislature delegated to Cuomo the authority

“to declare a disaster emergency and to issue directives suspending and

modifying the laws of the State.” (Dkt. No. 52, Attach. 1 at 14-16.)

“Legislative immunity shields an official from liability if the act in

question was undertaken in the sphere of legitimate legislative activity.”

Almonte v. City of Long Beach, 478 F.3d 100, 106 (2d Cir. 2007) (internal

quotation marks and citation omitted). Legislative immunity can apply to

“officials in the executive and judicial branches when they are acting in a

legislative capacity.” State Emps. Bargaining Agent Coal. v. Rowland, 494

16

F.3d 71, 82 (2d Cir. 2007) (internal quotation marks and citation omitted).

“A defendant is entitled to legislative immunity if the defendant (1)

was acting in his or her ‘legislative’ capacity under the test articulated in

Bogan [v. Scott-Harris, 523 U.S. 44 (1998)], and (2) the grant of the

requested relief would enjoin the defendant in his or her performance of

legislative functions.” Ass’n of Jewish Camp Operators v. Cuomo, 470 F.

Supp. 3d 197, 212 (N.D.N.Y. 2020). Courts apply a two-part test to

determine whether a defendant’s actions were taken within the “sphere of

legitimate legislative activity.” Rowland, 494 F.3d at 89 (quoting Bogan,

523 U.S. at 54). The first prong of the test is “whether the defendant’s

actions were legislative in form, i.e., whether they were integral steps in the

legislative process.” Jewish Camp, 470 F. Supp. 3d at 312 (internal

quotation marks and citation omitted); see Rowland, 494 F.3d at 90

(explaining that legislative in form means “passed by means of established

legislative procedures” (citations omitted)). The second prong of the test is

whether the defendant’s “actions were legislative in substance, i.e.,

whether the actions bore all the hallmarks of traditional legislation,

including whether they reflected discretionary, policymaking decisions

implicating the budgetary priorities of the government and the services the

17

government provides to its constituents.” Id. (internal quotation marks and

citation omitted).

Here, the Order is not legislative in form, as it was not “passed by

means of established legislative procedures,” Rowland, 494 F.3d at 90, but

rather was unilaterally enacted by Cuomo, see Jewish Camp, 470 F. Supp.

3d at 213 (“By nature, executive orders are not legislative . . . [because]

[t]he legislature plays no part in the drafting or passing [of] executive

orders.” (citation omitted)). State Defendants’ argument that the Order was

legislative in form because the New York State Legislature delegated their

legislative authority to Cuomo is without merit, as there is “no reason why a

defendant should be entitled to legislative immunity simply because the

harm alleged originated, in some sense, with a legislative act.” Rowland,

494 F.3d at 89 (citation omitted). Therefore, State Defendants’ motion to

dismiss is denied insofar as it seeks dismissal of plaintiffs’ damages claims

against Cuomo in his individual capacity.

V. Conclusion

WHEREFORE, for the foregoing reasons, it is hereby

ORDERED that Kathy Hochul is substituted insofar as Cuomo was

sued in his official capacity; and it is further

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ORDERED that Eric L. Adams is substituted insofar as de Blasio was

sued in his official capacity; and it is further

ORDERED that Mary T. Bassett is substituted insofar as Zucker was

sued in his official capacity; and it is further

ORDERED that City Defendants’ motion to dismiss (Dkt. No. 51) is

GRANTED; and it is further

ORDERED that the Clerk terminate the following defendants: Bill de

Blasio, Eric L. Adams, the New York City Department of Health and Mental

Hygiene, and the City of New York; and it is further

ORDERED that State Defendants’ motion to dismiss (Dkt. No. 52) is

GRANTED IN PART and DENIED IN PART as follows:

GRANTED with respect to all claims against Hochul, James, Zucker,

and Bassett; and

DENIED in all other respects; and it is further

ORDERED that plaintiffs’ complaint may proceed only as to their

damages claims as against Cuomo, in his individual capacity; and it is

further

ORDERED that the Clerk terminate the following defendants: Kathy

Hochul, Leticia James, Howard Zucker, and Mary T. Bassett; and it is

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further

ORDERED that Cuomo shall respond to the complaint (Dkt. No. 1)

within the time allotted by the Rules; and it is further

ORDERED that the parties shall contact Magistrate Judge Daniel J.

Stewart to schedule further proceedings; and it is further

ORDERED that the Clerk provide a copy of this Memorandum-

Decision and Order to the parties.

IT 1S SO ORDERED.

February 4, 2022 \. g

Albany, New York .

S-Pistiet Judge

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