# Colella v. Starpoint Central School District

> District Court, W.D. New York · April 25, 2025

URL: https://www.frixlaw.com/law-library/cases/10852262

## Case

- **Court:** District Court, W.D. New York
- **Decided:** April 25, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

S STATES DISTRIG>
UNITED STATES DISTRICT COURT EE FILED COP
WESTERN DISTRICT OF NEW YORK LS □□
APR 25 2025
Lag we
A.A.C. and T.C., on behalf of their minor West loewensul ee □□
ISTRICT
children G.C. and A.C.,
v.
24-CV-1047 (JLS)
STARPOINT CENTRAL SCHOOL
DISTRICT, DR. SEAN CROFT,
individually and in his official capacity as
current Superintendent, MAUREEN
BRAUNSCHEIDEL, individually and in
his [sic] official capacity as former
Superintendent, DR. ALAN INGRAHAM,
individually and in his official capacity as
High School Principal, DR. COREY
GRAY, individually and in his official
capacity as Middle School Principal, DR.
THOMAS SZALKOWSKI, individually
and in his official capacity as School
Physician, FRAN ANDERSON,
individually and in her official capacity as
Middle School Nurse, JOHN ANDREWS,
individually and in his official capacity as
Director of Administrative Services,
VINCENT DELL’OSO, individually and
in his official capacity as Athletic
Director, JOHN DOE(s), individually and
in their official capacities,
Defendants.

DECISION AND ORDER
Plaintiffs bring this action on behalf of their minor children, who are students
in the Starpoint Central School District (the “District”). Plaintiffs sue the District,
and several District officials, based on their refusal to allow Plaintiffs’ daughter,

A.C., to attend school unless she receives a Tdap vaccination which, according to
Plaintiffs, would be detrimental to her health. Before the Court is Plaintiffs’ motion
for a preliminary injunction, seeking to enjoin Defendants from excluding A.C. from
school for failure to receive the Tdap vaccine. The motion is now granted.
In New York, “a child may be exempted from school immunization if ‘any’
state-licensed physician ‘certifies that such immunization may be detrimental to
[the] child’s health.” Goe v. Zucker, 43 F.4th 19, 26 (2d Cir. 2022) (quoting N.Y.
Pub. Health Law § 2164(8)). Plaintiffs submitted a facially and procedurally valid
exemption request on behalf of A.C., which was completed by A.C.’s treating
physician based on his conclusion that A.C. should temporarily delay vaccination
while he explores possible impacts on her heath. The District, however, denied that
request after the school physician improperly second-guessed the treating
physician’s conclusion.
Plaintiffs maintain that, as a result of Defendants’ actions, their rights have
been violated under a plethora of federal and state constitutional provisions and
statutes. As set forth below, Plaintiffs do not demonstrate a likelihood of success on
the merits of their claims under the United States Constitution, the New York State
Constitution, or a federal statute. But they do make that showing as to one state-
law claim based on the District’s improper denial of the valid exemption request.
Indeed, “the statute does not create a system in which school officials are given
improper discretion to evaluate the reasons given for a requested medical
exemption.” Miller v. McDonald, 130 F.4th 258, 269 (2d Cir. 2025). This Court

has—and finds no basis to decline—supplemental jurisdiction over that state-law
claim. And as set forth below, the preliminary injunction factors require ruling for
Plaintiffs on this record. The preliminary injunction motion, therefore, is granted.
BACKGROUND
Plaintiffs A.A.C. and T.C. assert claims under federal and New York law on
behalf of their minor children, G.C. and A.C. See Dkt. 25 J] 15-17. G.C. and A.C.
have attended school in the District for their “entire academic career[s].” Id. {| 16-
17. Currently, A.C. is a student at Starpoint Middle School. Id { 17. A.C. is the
focus of this motion.
Plaintiffs sue the District, as well as several District officials—namely,
Maureen Braunscheidel, Dr. Alan Ingraham, Dr. Corey Gray, Dr. Thomas
Szalkowski, Fran Anderson, John Andrews, and Vincent Dell’Oso (collectively, the
“Individual Defendants”). See id. {| 22-28. The Individual Defendants are named
in both their official and individual capacities. See id.

I. PLAINTIFFS’ ALLEGATIONS AND CLAIMS!

According to Plaintiffs, G.C. and A.C. have “documented medical conditions.”
Id. | 32. These include “histories of adverse reactions to vaccines that make
vaccination medically contraindicated.” Id. Specifically, both “G.C. and A.C. have

1 This section contains a summary of the Amended Complaint filed on December 29,
2024, which is the operative Complaint. See Dkt. 25.

documented histories of neurological symptoms following previous vaccinations.”
Id. ¥ 38.
On September 13, 2024, Plaintiffs “submitted requests for medical
exemptions from immunization requirements to the District.” Id. | 43. But on
September 27, 2024, Defendant Braunscheidel—acting superintendent at the
time—‘denied the medical exemption requests for G.C. and A.C.” Id. J 91.
Plaintiffs believe this was an “improper and unsupported decision to reject
Plaintiffs’ request for a vaccine waiver for their children.” Id. {| 56. Plaintiffs
appealed the decision to the New York State Commissioner of Education on October
10, 2024, but “voluntarily dismissed” the appeal on December 5, 2024. See id.
{4 105, 110.2
On December 4, 2024, Plaintiffs submitted another exemption request to the
District for A.C. See id. § 73. The previous day, Plaintiffs had “obtained a medical
exemption from Dr. Joseph A. Riccione for A.C.’s Tdap vaccination, citing the risk of
exacerbating her documented neurological conditions.” Id. { 71. But on December
23, 2024, the District denied the request and “announced its intention to exclude
A.C. from school beginning January 2, 2025....” Id. J 75.
Plaintiffs believe that the “District’s denial again exceeded its statutory
authority, and in violation of New York State law, by substituting its lay judgment
for that of a New York State licensed physician who personally examined A.C.” Id.

2 Plaintiffs purport that the appeal was “moot” because “G.C. had been coerced into
receiving the meningitis vaccine on October 23, 2024, and A.C. obtained a valid
medical exemption for the Tdap vaccine on December 3, 2024.” Id. § 110.

476. And they claim that the “District has engaged in a pattern of discriminatory
treatment regarding vaccination appointments, specifically targeting A.C. and G.C.
while accommodating other students... Id. { 77. They also purport that the
District has taken “broader retaliatory and discriminatory actions” against them.
Id. § 111.
The Amended Complaint includes ten named causes of action:

1. Violation of the Americans with Disabilities Act (42 U.S.C. § 12101, et
seq.) (“ADA”) against all Defendants;
2. Violation of Section 504 of the Rehabilitation Act (29 U.S.C. § 794) (“RA”)
against the District and Defendants Croft, Braunscheidel, Szalkowski,
Anderson, Gray, Ingraham, and Dell’Oso;
3. Violation of HIPAA Privacy Rule (45 C.F.R. § 164.502, et seq.) against the
District and Defendants Croft, Braunscheidel, Szalkowski, Andrews,
Anderson, Gray, and Ingraham;
4. First Amendment Retaliation under 42 U.S.C. § 1983 against all
Defendants;
5. Fourteenth Amendment Due Process under Section 1983 against
Defendants Croft, Braunscheidel, Szalkowski, Gray, Ingraham, Anderson,
and Andrews;
6. Fourteenth Amendment Equal Protection under Section 1983 against
Defendants Croft, Braunscheidel, Dell’Oso, Gray, Ingraham, and
Anderson;

7. Right To Refuse Medical Treatment under Section 1983 against
Defendants Croft, Braunscheidel, Szalkowski, Ingraham, Dell’Oso, Gray,
and Anderson;
8. Constitutional Privacy Claim under Section 1983 against Defendants
Croft, Braunscheidel, Szalkowski, Andrews, Anderson, Gray, and
Ingraham;
9. Monell Claim under Section 1983 against the District; and
10. New York State Constitutional Violation against All Defendants.

See id. J] 168-264. And as discussed in detail below, the Amended Complaint,
fairly read, also contains a claim under New York State law based on the allegedly
improper denial of A.C.’s exemption request.
In this lawsuit, Plaintiffs seek—ultimately—an order enjoining Defendants
from “excluding Plaintiffs’ children from school,” requiring Defendants to “accept
the medical exemptions of Plaintiffs’ children,” and “[p]rohibiting any retaliation
against Plaintiffs or their children.” Id. at 47.3 They also seek declaratory relief,
compensatory damages, and punitive damages, as well as attorneys’ fees and costs.
Id. at 46-47.

3 Unless otherwise noted, page numbers refer to the CM/ECF numbering in the
header of each page.

II. PROCEDURAL HISTORY

Plaintiffs commenced this action on October 28, 2024. Dkt. 1. That same
day, they filed a motion for a temporary restraining order (“TRO”) and a
preliminary injunction (“PI”). Dkt. 2.

A. First Motion for a TRO and PI

In their original motion, Plaintiffs stated that A.C. “ha[d] an appointment
scheduled for December 3, 2024, with Dr. Joseph Riccione[.]” Dkt. 2-1 at 3. But the
District, they claimed, was “excluding” A.C. from school “despite her scheduled
appointment.” Id. As such, Plaintiffs sought “narrow” relief—namely, an order
“allowing [A.C.] to return to school pending her December 3, 2024 medical
appointment.” Id. Defendants opposed the motion. Dkt. 9. On November 5, 2024,
the Court heard argument. See Dkt. 12.
On November 18, 2024, this Court so-ordered a stipulation, Dkt. 14,
providing that A.C. would “be permitted to return to her classes and school-related
activities at Starpoint Middle School, effective as of November 6, 2024,” and
“continue attending classes and participating in activities” until “her doctor’s
appointment on December 3, 2024.” Id. at 2. In addition, Plaintiffs agreed to
“withdraw their motion for a Temporary Restraining Order and Preliminary
Injunction without prejudice.” Id.

B. Amended Complaint and Second Motion for a TRO and PI

On December 29, 2024, Plaintiffs filed an Amended Complaint, which is now
the operative Complaint. Dkt. 25. That same day, Plaintiffs filed a renewed motion
for a TRO anda PI. Dkt. 26-27.4 As to the TRO component, Plaintiffs sought an
order “enjoining Defendants from denying A.C.’s medical exemption and excluding
her from attending school during the pendency of this action.” Dkt. 26 at 1.
On January 2, 2025, the Court heard argument on the TRO request. See Dkt.
33. The Court then issued an Order (Dkt. 34) providing that:
Defendants, as well as their officers, agents, servants, employees, and
attorneys, and all persons acting in concert or participation with them,
are enjoined, effective immediately, from (a) excluding A.C. from
attending school based on Defendants’ denial of her medical exemption
under New York Public Health Law § 2164(8); or (b) taking any
retaliatory actions against Plaintiffs related to their pursuit of legal
remedies in this matter....
Id. at 2.8 The Court further ordered that “this TRO shall remain in effect through
the disposition of Plaintiffs’ Motion for a Preliminary Injunction.” Id.

C. Instant Motion for a Preliminary Injunction

Presently before the Court is Plaintiffs’ outstanding request for a preliminary
injunction. See Dkt. 26. Plaintiffs argue that the District’s denial of A.C’s
exemption request violates “statutory, constitutional, and federal disability

4 Defendants opposed the motion, Dkt. 32, and Plaintiffs filed a supplemental
memorandum in support. Dkt. 31.
5 The Court stated the reasons for its decision on the record at the January 2, 2025
proceeding. Jd. at 1. A transcript of that proceeding is at Dkt. 35.

protections.” Dkt. 26-13 at 4. As such, they seek an order “requiring Defendants to

accept A.C.’s medical exemption and allow her to attend school pending final
resolution of this matter.” Dkt. 26 at 1.

1. The Parties’ Initial Submissions

In their motion, Plaintiffs state that A.C.’s “documented medical conditions,
including a history of adverse vaccine reactions,” have been “corroborated by a
licensed physician’s medical exemption form... .” Dkt. 26-13 at 3. But the District,
they claim, “unlawfully denied A.C.’s exemption request, disregarding her
physician’s expertise and substituting its own lay judgment.” Id. They argue that
the exclusion of A.C. from school “will cause A.C. irreparable harm, including loss of
educational access, emotional distress, social stigmatization, and academic
disruption.” Id.
Plaintiffs claim that they have “demonstrated a compelling likelihood of

success on the merits of their claims, which encompass violations of statutory,
constitutional, and federal disability protections.” Id. at 4. And they maintain that
the “District’s exclusion of A.C. from school, based on its arbitrary and
discriminatory denial of a valid medical exemption, deprives her of fundamental
constitutional and statutory rights that cannot be remedied through monetary
damages alone.” Id. at 18. According to Plaintiffs, the “balance of hardships
overwhelmingly favors Plaintiffs,” and “[g]ranting Plaintiffs’ requested relief aligns
with the public interest in safeguarding constitutional rights, promoting equitable

access to education, and maintaining trust in the integrity of public institutions.”
Id. at 16-18.
In opposition, Defendants argue that “Plaintiffs’ application for injunctive
relief should be denied for a number of reasons.” Dkt. 32-1 at 4. They claim that
this Court lacks subject matter jurisdiction, and should abstain from adjudicating
Plaintiffs’ claims under various doctrines. Jd. at 5-6.6 They also maintain that
Plaintiffs “cannot establish a likelihood of success on the merits.” Id. at 6.
The parties filed pre-hearing briefs, Dkt. 50, 51, as well as supplemental
briefs. Dkt. 55, 57. In addition, Plaintiffs filed a memorandum “summarizing key
deposition testimony relevant to the issues in the preliminary injunction hearing.”
Dkt. 71.

2. Pre-Hearing Discovery and Motions

The Court permitted discovery in advance of the preliminary injunction
hearing. See Dkt. 36. The parties filed motions relating to various issues including,
for example, depositions and interrogatories. See, e.g., Dkt. 41, 42, 43. The Court
heard argument on these motions and, thereafter, resolved them by text order. Dkt.
46.

6 The Court addressed abstention at the January 2, 2025 TRO argument, and
concluded that it need not abstain. See Dkt. 35 at 5 (The Court: “I’m not seeing an
abstention here under any of the abstention doctrines, Younger, Burford, Colorado
River, Pullman ....I have looked at the caselaw and I’m satisfied that there is no
cause for abstention here, to the extent that there is a live Federal question here or
there, abstention is not appropriate”).
10

The parties also filed motions in limine. See Dkt. 47 (Plaintiffs); Dkt. 48
(Defendants).? On February 7, 2025, the Court issued an order resolving these
motions. Dkt. 53. In its order, the Court specified that, regarding likelihood of

success on the merits, the hearing would focus on:

1. Whether the exemption request was facially and procedurally valid;
2. The reason(s) that Defendants sought more information, and
scrutinized and rejected the exemption; and
3. Whether any such proffered reason offends the Constitution.

Id.8
On February 9, 2025, Defendants filed a motion seeking “an Order from this
Court vacating the TRO (Dkt. 34) and denying Plaintiffs’ motion for a preliminary
injunction.” Dkt. 56. Defendants argued that, by its rulings on the motions in
limine, the Court has “foreclosed the possibility that Plaintiffs can meet their
burden of proof necessary to secure a preliminary injunction.” Id. In response, the
Court ordered that, because the issues in this case hinge partially on credibility

7 Both sides opposed the other’s motions. See Dkt. 49, 52.
8 As such, the Court: (1) granted Plaintiffs’ [47] motion to the extent that medical
opinion evidence shall not exceed the specified topics; (2) ordered that A.C.’s
substantive entitlement to the exemption, as a matter of medical opinions, is not a
proper inquiry for this Court; (3) granted Defendants’ [48] motion to preclude
opinion testimony that the tic disorder is progressive or unstable in accordance with
the parameters identified by the Court; and (4) granted Defendants’ [48] motion to
preclude opinion testimony that the tic disorder was caused by a 2018 vaccination.
Id.

11

determinations, the Court will address Defendants’ [56] motion following the
preliminary injunction hearing. Dkt. 65.
The Court then addressed additional discovery motions. See Dkt. 62.
Specifically, on February 19, 2025, Plaintiffs moved to strike declarations of: (1) Dr.
Eric Thierman, who “provided pediatric medical care for A.C. from her birth .. . up
to November 7 of 2023 (Dkt. 58 § 2); and (2) Dr. Debra S. Blog, Medical Director of
the Division of Vaccine Excellence, New York State Department of Health (Dkt. 59).
See Dkt. 62-2 at 5-11. They also moved to compel disclosure of “unredacted medical
exemptions issued to other students in the [D]istrict.” Dkt. 62 at 1-2. Defendants
opposed the motions, Dkt. 66, and Plaintiffs replied. Dkt. 67. The Court resolved
the motions by text order on March 5, 2025. Dkt. 68.9

3. Preliminary Injunction Hearing and Post-Hearing Submissions

On March 13 and 14, 2025, the Court held the preliminary injunction
hearing. See Dkt. 73-74. Dr. Riccione, Plaintiff A.A.C., and Defendants
Braunscheidel, Croft, and Dr. Szalkowski credibly testified at the hearing. See id.
After the hearing, the parties submitted deposition designations. See Dkt. 76
(Defendants); Dkt. 82 (Plaintiffs).!° Plaintiffs designated testimony from Dr.

9 The Court denied Plaintiffs’ motions to strike and granted their motion to
compel—provided that the parties coordinate regarding logistics and any details
relating to confidentiality protections. Id.
10 Defendants responded to Plaintiffs’ designations, arguing that the Court should
“disregard these submissions in their entirety. ...” See Dkt. 89.
12

Riccione, Defendants Dr. Szalkowski, Croft, Andrews, Braunscheidel, and Gray, as
well as Plaintiffs T.C. and A.A.C. See Dkt. 82. Defendants designated testimony
from Plaintiff T.C. See Dkt. 76.
On March 24, 2025, the Court issued an order (Dkt. 77) stating that, in post-
hearing briefs, the parties “should be sure to address, in depth, Plaintiffs’ state-law
claim for failure to grant a valid exemption ....” See Dkt. 77 at 1-2. The Court
further stated that its “recent review of additional caselaw” revealed that
“supplemental jurisdiction may be appropriate in certain exceptional
circumstances.” See id. at 2. The Court ordered, therefore, that the parties’ post-
hearing briefs should “address all aspects of [28 U.S.C. §] 1367, including reasons
and factors relevant to whether the Court ought to retain or decline jurisdiction,” as
well as “the merits of this state-law claim... Id. The Court explained:
Given the Court’s prior statements on the issue, including its decision
on the motions in limine, and its evidentiary rulings—which were driven
by the Court’s then-current view of the issue prompted by Defendants’
arguments and caselaw citations addressing it—the scope of evidence
received at the preliminary injunction hearing, as a result, may have
been constrained, slightly, as it might have related to this claim. Thus,
in fairness to both sides, the forthcoming briefing may include reference
to new affidavits, or additional deposition transcripts, that would bear
on the Section 1367 and merits issues discussed above.
Id.}2

12 The Court’s prior statements and rulings are hereby reconsidered as appropriate
and as set forth below, consistent with the March 24, 2025 Order. See Sanderson v.
Leg Apparel, LLC, No. 1:19-CV-8423-GHW, 2023 WL 8039499, at *1 (S.D.N.Y. Nov.
20, 2023) (“a district court has discretion to reconsider its non-final orders sua
sponte.”) (citing Fed. R. Civ. P. 54).

13

The parties then filed their post-hearing briefs. See Dkt. 86-87 (Plaintiffs);
Dkt. 88 (Defendants). Plaintiffs attached various materials, including additional
declarations from Plaintiffs A.C. and A.A.C. dated April 10, 2025. See Dkt. 86-5; 86-
6. Defendants submitted—among other materials—an additional declaration from
Defendant Dr. Szalkowski dated April 4, 2025. See Dkt. 88-1.
DISCUSSION
On this record, and in this preliminary injunction posture, Plaintiffs have not
shown a likelihood of success on the merits of their claims under the United States
Constitution, the New York State Constitution, and federal statutes. But this
record reveals the opposite as to the state-law claim based on Defendants’ denial of
the facially and procedurally valid exemption request that Dr. Riccione completed
on A.C.’s behalf. In the absence of a basis to decline jurisdiction over that claim—
and because the remaining preliminary injunction factors favor Plaintiffs—the
preliminary injunction motion is granted.

I. PRELIMINARY INJUNCTION FACTORS

To “obtain a preliminary injunction against governmental action taken
pursuant to a statute, the movant has to demonstrate (1) irreparable harm absent
injunctive relief, (2) a likelihood of success on the merits, and (8) public interest
weighing in favor of granting the injunction.” Libertarian Party of Conn. v. Lamont,
977 F.3d 173, 176 (2d Cir. 2020) (internal citation and alteration omitted). In
addition, (4) the “movant also must show that the balance of equities tips in [its]
favor.” Id. See also Starbucks Corp. v. McKinney, 602 U.S. 339, 346 (2024) (“The
14

default rule is that a plaintiff seeking a preliminary injunction must make a clear
showing that ‘[s]he is likely to succeed on the merits, that [s]he is likely to suffer
irreparable harm in the absence of preliminary relief, that the balance of equities
tips in [her] favor, and that an injunction is in the public interest”) (quoting Winter

uv. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008)). With respect to the state-law
claim addressed below, all of the preliminary injunction factors favor Plaintiffs.'*

A. Likelihood of Success on the Merits

As noted above, Plaintiffs assert the following enumerated causes of action:

e Violation of the ADA against all Defendants;
e Violation of the RA against the District and Defendants Croft,
Braunscheidel, Szalkowski, Anderson, Gray, Ingraham, and Dell’Oso;

e Violation of HIPAA Privacy Rule against the District and Defendants
Croft, Braunscheidel, Szalkowski, Andrews, Anderson, Gray, and
Ingraham;
e First Amendment Retaliation under Section 1983 against all Defendants;

e Fourteenth Amendment Due Process under Section 1983 against
Defendants Croft, Braunscheidel, Szalkowski, Gray, Ingraham, Anderson,
and Andrews;

13 To “warrant a preliminary injunction, Plaintiffs need not show that there is a
likelihood of success on the merits of all of their claims for relief. Rather, Plaintiffs
need to show a likelihood of success on the merits of at least one of their claims.”
L.V.M. v. Lloyd, 318 F. Supp. 3d 601, 618 (S.D.N.Y. 2018) Gnternal citation,
alternations, and quotation marks omitted).

15

e Fourteenth Amendment Equal Protection under Section 1983 against
Defendants Croft, Braunscheidel, Dell’Oso, Gray, Ingraham, and
Anderson;
e Right To Refuse Medical Treatment under Section 1983 against
Defendants Croft, Braunscheidel, Szalkowski, Ingraham, Dell’Oso, Gray,
and Anderson;
e Constitutional Privacy Claim under Section 1983 against Defendants
Croft, Braunscheidel, Szalkowski, Andrews, Anderson, Gray, and
Ingraham;
e Monell Claim under Section 19838 against the District; and

e New York State Constitutional Violation against All Defendants.

See Dkt. 25 J 168-264.
In addition, Plaintiffs’ allegations across the Amended Complaint include a
state-law claim that the District’s denial of A.C.’s exemption request was improper.
See, e.g., id. J§ 1-5, 10-14, 71-76, 112, 141-42, 270-74. Plaintiffs allege—for
example—that “the District denied [A.C.’s] valid medical exemption[,] and
announced its intention to exclude A.C. from school . . .”—and that the denial
“exceeded its statutory authority, and in violation of New York State law, by
substituting its lay judgment for that of a New York State licensed physician who
personally examined A.C.” Id. (75-76. If brought in state court, such a claim
would typically fall within Article 78 of the State’s Civil Practice Law and Rules
(“CPLR”). See Goe, 43 F.4th at 34 (“if a medical exemption is denied by school

16

authorities, a parent has the right to .. . seek judicial review in state court through

an Article 78 proceeding”).4

14 Article 78 “is a method for challenging state administrative action.” Davis v.
Halpern, 813 F.2d 37, 38 (2d Cir. 1987) (citing Davidson v. Capuano, 792 F.2d 275
(2d Cir. 1986)). The “substantive scope of an Article 78 proceeding is limited.”
Whitfield v. City of New York, 96 F.4th 504, 519 (2d Cir. 2024). The “only questions
that may be raised in a proceeding under this [78] article are:
1. whether the body or officer failed to perform a duty enjoined upon it
by law; or
2. whether the body or officer proceeded, is proceeding or is about to
proceed without or in excess of jurisdiction; or
3. whether a determination was made in violation of lawful procedure,
was affected by an error of law or was arbitrary and capricious or an
abuse of discretion, including abuse of discretion as to the measure
or mode of penalty or discipline imposed; or
4. whether a determination made as a result of a hearing held, and at
which evidence was taken, pursuant to direction by law is, on the
entire record, supported by substantial evidence.
Id. (citing CPLR 7803). The fact that Plaintiffs do not out call this claim as a
separate enumerated cause of action does not preclude this Court’s consideration of
the claim on this motion. Indeed, a “complaint need not set out the correct legal
theory on which the claim is based, so long as the complaint provides full notice of
the circumstances giving rise to the plaintiffs claim.” Morris v. Schroder Cap.
Mgmt. Int, 445 F.3d 525, 5380 n.3 (2d Cir. 2006). See Chinchilla v. New York City
Police Dep’t, No. 23 CIV. 8986 (DEH), 2024 WL 3400526, at *11 (S.D.N.Y. July 12,
2024) (courts “look beyond the labels a plaintiff uses to determine if an action
should be brought as an Article 78 proceeding”); Marbury Mgmt., Inc. v. Kohn, 629
F.2d 705, 712 n.4 (2d Cir. 1980) (“Generally[,] a complaint that gives full notice of
the circumstances giving rise to the plaintiffs claim for relief need not also correctly
plead the legal theory or theories and statutory basis supporting the claim”); New
York State Waterways Ass’n, Inc. v. Diamond, 469 F.2d 419, 421 (2d Cir. 1972)
(“While plaintiffs’ complaint is hardly a model of compliance with the Federal Rules
of Civil Procedure 8(a)(1) requirement of a ‘short and plain’ statement of the
claimed jurisdictional basis of a suit, it is our duty to read it liberally, to determine
whether the facts set forth justify taking jurisdiction on grounds other than those
17

For the reasons below, each of the claims in Plaintiffs’ enumerated causes of

actions is unlikely to succeed on the merits. But Plaintiffs’ “Article 7 8”-type claim is

likely to succeed on the merits.

1. First Amendment Retaliation (Fourth Claim)

Plaintiffs argue that Defendants took various actions with respect to A.C.’s
exemption request—and ultimately denied the request—to retaliate against
Plaintiffs for: (1) retaining counsel; and/or (2) filing an appeal with the New York
State Commissioner of Education as to an earlier request. There is no likelihood of

success on the merits of this claim.!®
The Second Circuit has “described the elements of a First Amendment
retaliation claim in several ways, depending on the factual context.” Zherka v.
Amicone, 634 F.3d 642, 644 (2d Cir. 2011) Gnternal citation and quotation marks
omitted). In the context of Section 1983 claims brought on behalf of a minor student
against a school district and its officials, the Second Circuit has used the following
test: To “state a First Amendment retaliation claim, a plaintiff must establish that:
(1) his speech or conduct was protected by the First Amendment; (2) the defendant
took an adverse action against him; and (3) there was a causal connection between
this adverse action and the protected [conduct].” Cox v. Warwick Valley Cent. Sch.

most artistically pleaded”). Defendants, moreover, raised the “Article 78-claim”
issue themselves, and litigated it fully as if it existed in the Amended Complaint.
15 Plaintiffs’ theories of First Amendment retaliation have evolved over the course of
this litigation. To the extent Plaintiffs assert additional theories not addressed in
this decision, those theories are undeveloped and lack merit.
18

Dist., 654 F.3d 267, 272 (2d Cir. 2011) (citing Scott v. Coughlin, 344 F.3d 282, 287
(2d Cir. 2008); Kuck v. Danaher, 600 F.3d 159, 168 (2d Cir. 2010)).
An “adverse action in a First Amendment retaliation case is ‘conduct that
would deter a similarly situated individual of ordinary firmness from exercising his
or her constitutional rights.” Jd. (quoting Zelnik v. Fashion Inst. of Tech., 464 F.3d
217, 225 (2d Cir. 2006)). Under “this ‘objective’ standard, an adverse action must be
more than ‘de minimis’ to support a First Amendment retaliation claim.” Id.
(quoting Zelnik, 464 F.3d at 226). Recognizing “that this test is highly context-
specific,” the Second Circuit applies it “in light of the special characteristics of the
school environment.” Jd. (quoting Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393
U.S. 503, 506 (1969)).
Here, Plaintiffs point to several supposedly retaliatory acts in connection
with A.C.’s request, none of which amounts—in this preliminary injunction
posture—to unlawful retaliation in violation of the First Amendment.!¢

a. Escalation of A.C.’s Request

Plaintiffs rely on the fact that A.C.’s exemption request was administratively
handled at the District level, rather than at the building level, per usual procedure.
The escalation of Plaintiffs’ request, however, does not give rise to a retaliation
claim because it is not an actionable adverse action. The credible testimony of
multiple witnesses confirmed that, regardless of whether a request is

16 Defendants do not dispute, for purposes of this motion, that retaining counsel and
filing a Commissioner’s appeal are protected activities. See Dkt. 50 at 12.
19

administratively handled at the district level or the building level, it is ultimately
reviewed by Dr. Szalkowski (and never before has the District rejected his
recommendation). Because the outcome would have been the same with or without
the escalation, there is no basis to conclude that such conduct “would deter a
similarly situated individual of ordinary firmness from exercising his or her
constitutional rights.” See Cox, 654 F.3d at 273 (internal citation omitted).
Moreover, Plaintiffs fail to establish the required causal link. They rely
heavily on an internal e-mail in which Braunscheidel indicated that A.C.’s request
will be handled at the district level because Plaintiffs “involved attorneys.” Indeed,
Braunscheidel testified that, as Acting Superintendent, she issued a directive in or
around October 2024 to building administrators and nurses stating that A.C.’s
exemption request will be handled at the District level. She credibly explained,
however, that her directive closely followed an e-mail communication from A.C.’s
father that expressed concern about medical information being shared by the
middle school nurse with the children. Braunscheidel was also aware that the
family had previously submitted a fraudulent medical document to the District
regarding their other daughter, which further explains why she believed that closer
attention was necessary, and thereby undercuts any causal link between the
escalation and any protected activity.

b. Temporary Exclusion of A.C. from School

Plaintiffs also rely on the fact that A.C. was excluded from school for
approximately two weeks because she did not have the required Tdap vaccination

20

—even though she had an appointment scheduled for December 3, 2024 with Dr.

Riccione. The record does not support a causal link between A.C.’s exclusion from
school and Plaintiffs’ protected activities.
Braunscheidel credibly testified that, upon receiving a letter from the office of

the Education Commissioner in or around October 2024 indicating that Plaintiffs’

request for a stay of the District's exclusion order had been denied, she believed
that she lacked authority to allow A.C. to remain in school (without the Tdap
vaccine or an exemption). Braunscheidel, therefore, believed she had no choice but

to disallow A.C. from attending school—despite her previous position that A.C.
should be allowed to stay in school pending the outcome of the appeal because it

was “the right thing to do.”
In addition, Braunscheidel credibly testified that she believed that, under
District policy, a student without a required vaccine (or an exemption) may remain
in school pending a doctor’s appointment only where the vaccination is scheduled to

occur at the appointment—not where, like in A.C.’s case, the appointment was to
determine whether to receive the vaccine."
On these facts, there is no basis to conclude that A.C.’s temporary exclusion
from school was causally connected to Plaintiffs’ protected activities.

17 There is no evidence in this record of a contrary policy.
21

c. Dr. Szalkowski’s Recommendation

Plaintiffs also cannot rely on Dr. Szalkowski’s recommendation to deny the
December 3, 2024 request that had been completed and signed by Dr. Riccione.
Indeed, Dr. Szalkowski took numerous steps that amounted to second-guessing Dr.
Riccione’s medical opinion regarding A.C.’s need for an exemption. And that
exceeds the bounds of his statutory authority in reviewing a request. See Miller,
130 F.4th at 269 (Even “though school officials have the authority to conclude that
the documents submitted in support of a medical exemption contain sufficient (or
insufficient) information, they do not have ‘discretion to approve or deny exemptions
on a case-by-case basis’ for any reason”) (emphasis in original). Nevertheless, that,
itself, does not give rise to unlawful retaliation in violation of the First
Amendment.18
Dr. Szalkowski also testified that he had previously reviewed an exemption
request from the same family that was “full of red flags.” It is thus reasonable to
infer that, as a result, he was primed to consider this request with closer scrutiny.
There is no evidence to suggest that Dr. Szalkowski proceeded in this matter
because Plaintiffs engaged in any protected activity.

d. Department of Health Inquiry

Plaintiffs also point to the fact that Dr. Croft sought a second opinion from
the Department of Health regarding Dr. Szalkowski’s recommendation to deny

18 But see the analysis of Plaintiffs’ state-law claim below.
22

A.C.’s exemption request. Dr. Croft credibly testified that, even without input from
the Department of Health, he still would have denied the request. Accordingly,
there is no actionable adverse action because such conduct would not “deter a
similarly situated individual of ordinary firmness from exercising his or her
constitutional rights.” See Cox, 654 F.3d at 273 Gnternal citation omitted).

e. The District’s Ultimate Decision

Lastly, the record does not support that the District’s ultimate decision to
deny A.C.’s exemption request was unlawfully retaliatory. The decision was issued
in late December of 2024—several weeks after Plaintiffs withdrew their
Commissioner's appeal. In addition, Dr. Croft credibly testified that the District
always accepts Dr. Szalkowski’s recommendation regarding an exemption request
—which aligns with what happened here.
In sum, in this posture, the record does not support a First Amendment
retaliation claim.

2. Fourteenth Amendment Equal Protection (Sixth Claim)

Plaintiffs also “assert a ‘class of one’ equal protection claim” under Village of
Willowbrook v. Olech, 528 U.S. 562, 564 (2000). See Dkt. 51 at 17. They purport
that “A.C.’s exemption [request] was treated differently than all others as no other
medical exemption had ever been escalated to NYSDOH for review before A.C.’s
request” and “no rational explanation exists for why A.C.’s exemption was singled

23

out for heightened scrutiny while other exemptions were granted without question.”
Id. at 17-18. Their claim fails on this record.
In Olech, the “Supreme Court held that [a plaintiff] could... state an Equal
Protection claim by alleging ‘[1] that she has been intentionally treated differently
from others similarly situated and [2] that there is no rational basis for the
difference in treatment.” Hu v. City of New York, 927 F.3d 81, 91 (2d Cir. 2019)
(quoting Olech, 528 U.S. at 564)). The Court in Olech “declined to specify the degree
of similarity required between a plaintiff and her comparator.” Id. at 91-92.
The Second Circuit, however, “addressed that omission and set forth the...
similarity standard for an Olech cause of action.” Id. at 92 (citing Neilson v.
D’Angelis, 409 F.3d 100 (2d Cir. 2005)).19 It concluded that “the level of similarity
between plaintiffs and the persons with whom they compare themselves must be
extremely high.” Id. (internal citation omitted). More precisely,
a plaintiff must establish that he and a comparator are ‘prima facie
identical’ by showing that[:] (i) no rational person could regard the
circumstances of the plaintiff to differ from those of a comparator to a
degree that would justify the differential treatment on the basis of a
legitimate government policy; and (ii) the similarity in circumstances
and difference in treatment are sufficient to exclude the possibility that
the defendant acted on the basis of a mistake.
Id. (internal citation and quotation marks omitted). And “the existence of highly
similar circumstances provides the basis for inferring that the plaintiff was

19 The Second Circuit “later overruled Neilson insofar as it allowed public employees
to assert Olech claims against their government employers,” but it “left intact
Neilson’s articulation of the elements of an Olech claim.” Id. at 92 n.3.

24

intentionally singled out for reasons that so lack any reasonable nexus with a
legitimate governmental policy that an improper purpose—whether personal or
otherwise—is all but certain.” Jd. (internal citation, quotation marks, and
alterations omitted).
Here, Plaintiffs fail to identify a “prima facie identical” comparator. The
circumstances surrounding the A.C.’s exemption request are unique in several
respects. For example, Plaintiffs had previously submitted a separate exemption
request on behalf of A.C. issued by an out-of-state organization that, according to
Dr. Szalkowski, was “full of red flags.” A.C.’s mother also submitted a medical
record to the District that she had intentionally altered to erroneously depict her
other daughter’s vaccination status. In addition, shortly before A.C.’s exemption
request was escalated to the District level, A.C.’s father had contacted the District
to express concern about the middle school nurse supposedly sharing medical
information with students. Moreover, the submission, review, and rejection of
A.C.’s December exemption request all occurred after this lawsuit was commenced.
There is no evidence, in this record, of another similar situation in the District's
history.
In sum, the “facts presented by this case are, to say the least, sui generis.” In
re Joe’s Friendly Serv. & Son, Inc., 645 B.R. 94, 130 (Bankr. E.D.N.Y. 2022).
Because Plaintiffs fail, on this record, to identify a comparator with anywhere near

25

the “extremely high” degree of similarity required, there is no likelihood of success

on an Olech claim.'®

3. ADA and RA (First and Second Claims)

Plaintiffs also assert disability discrimination claims, specifically, under Title
Il of the ADA against all Defendants, and under the RA against the District and
Defendants Croft, Braunscheidel, Szalkowski, Anderson, Gray, Ingraham, and
Dell’Oso. See Dkt. 25 168-190. These claims also fall short in this posture.
As a preliminary matter, to the extent Plaintiffs assert ADA or RA claims
against the Individual Defendants in their individual capacities, those claims fail
because neither provision provides for individual liability. See Garcia v. S.U.N.Y.
Health Scis. Ctr. of Brooklyn, 280 F.3d 98, 107 (2d Cir. 2001) (“Insofar as [the
plaintiff] is suing the individual defendants in their individual capacities, neither
Title II of the ADA nor § 504 of the Rehabilitation Act provides for individual
capacity suits against state officials”).

19 Plaintiffs also fail, in this posture, under the separate equal protection theory of
non-class-based discrimination set forth in LeClair v. Saunders, 627 F.2d 606, 607
(2d Cir. 1980). To “prevail on such a claim, a plaintiff must prove that (1) the
person, compared with others similarly situated, was selectively treated, and (2) the
selective treatment was motivated by an intention to discriminate on the basis of
impermissible considerations, such as race or religion, to punish or inhibit the
exercise of constitutional rights, or by a malicious or bad faith intent to injure the
person.” Hu, 927 F.3d at 91. Leclair “requires a reasonably close resemblance
between a plaintiffs and comparator’s circumstances.” Id. at 93 Gnternal citation
and quotation marks omitted). On this record, Plaintiffs fail to establish intent to
discriminate on the basis of impermissible considerations, or malicious or bad faith
intent to injure Plaintiffs. Nor do they identify a valid comparator, for the reasons
discussed above.
26

In addition, all of Plaintiffs’ ADA and RA claims lack merit on this
preliminary injunction record. To “make out a prima facie case under the ADA or
Rehabilitation Act, a plaintiff must show ‘(1) that [she] is a qualified individual with
a disability; (2) that the defendants are subject to [the pertinent statute]; and (8)
that [she] was denied the opportunity to participate in or benefit from defendants’
services, programs, or activities, or was otherwise discriminated against by
defendants, by reason of [her] disability.” Preston v. Hilton Cent. Sch. Dist., 876 F.
Supp. 2d 235, 241 (W.D.N.Y. 2012) (quoting Harris v. Mills, 572 F.3d 66, 73-74 (2d
Cir. 2009)).
A “person has a ‘disability’ under the ADA (or Rehabilitation Act) if [s]he has:
(a) ‘a physical or mental impairment that substantially limits one or more [of his]
major life activities,’ (b) ‘a record of such an impairment,’ or (c) is ‘regarded as
having such an impairment.” Veldran v. Dejoy, 839 F. App’x 577, 579 (2d Cir. 2020)
(quoting 42 U.S.C. § 12102(1); 29 U.S.C. § 705(9)(B)). Major life activities “include
‘caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking,
breathing, learning, and working.” Jones v. New York City Transit Auth., 838 F.
App’x 642, 644 (2d Cir. 2021) (quoting 45 C.F.R. § 84.38()(2)(ii)).
Here, the record does not support that A.C. is a qualified individual with a
disability within the meaning of these statutes. Plaintiffs fail to demonstrate how
any verbal or motor tics A.C. may experience substantially limit any major life
activity. In fact, Dr. Riccione’s testimony indicates that A.C. generally functions

27

normally, and that her tics occur only sporadically. A.C.’s mother also testified that
A.C. has done well in school and participates in activities such as cheerleading.
In sum, because Plaintiffs fail to demonstrate that A.C.’s tic disorder
substantially limits a major life activity—or that she has a record of, or is regarded
as having, such an impairment-——Plaintiffs’ ADA and RA claims fail to support a
preliminary injunction.

4. Fourteenth Amendment Due Process (Fifth Claim)

Plaintiffs also claim that Defendants Croft, Braunscheidel, Szalkowski, Gray,
Ingraham, Anderson, and Andrews violated their Fourteenth Amendment Due
Process Rights. See Dkt. 25 J 214-228. The “touchstone of due process is
protection of the individual against arbitrary action of government.” Leebaert v.
Harrington, 332 F.3d 134, 139 (2d Cir. 2003) Gnternal citation and quotation marks
omitted). In this case, Plaintiffs assert both substantive due process and procedural
due process claims. They fail on this record.

a. Substantive Due Process

Substantive due process rights “safeguard persons against the government’s
exercise of power without any reasonable justification in the service of a legitimate
governmental objective.” Matzell v. Annucct, 64 F.4th 425, 436 (2d Cir. 2023)
(internal citation and quotation marks omitted). An “as applied challenged,” like
Plaintiffs assert here, “requires an analysis of the facts of a particular case to
determine whether the application of a statute, even one constitutional on its face,

28

deprived the [plaintiff] to whom it was applied of a protected right.” Goe, 43 F.4th
at 30 (quoting Field Day, LLC v. Cnty. of Suffolk, 463 F.3d 167, 174 (2d Cir. 2006)).
For non-legislative conduct, like that alleged here, the Second Circuit “use[es]
the shocks the conscience test to assess substantive due process challenges to
government conduct.” Goe, 43 F.4th at 30. Accordingly, “to determine whether
government conduct infringes on a substantive due process right,” the Second
Circuit “first identif[ies] the ‘constitutional right at stake[,]’ or the ‘deprivation of
property’ interest at issue.” Id. (quoting Kaluczky v. City of White Plains, 57 F.3d
202, 211 (2d Cir. 1995)). And if the court “identiflies] either,” it “then asses[es]
whether the government’s alleged conduct shocks the conscience.” Id.?°
Here, Plaintiffs fail to satisfy the first prong. They allege that they have “a
protected property interest in their children’s public education.” Dkt. 25 § 215.7!
Indeed, while the “right to education does not rise to the level of a fundamental
right, New York law ‘does appear to create a property interest in education
protected by the Fourteenth Amendment.” Doe v. Zucker, 520 F. Supp. 3d 217, 258
(N.D.N.Y. 2021), affd sub nom. Goe v. Zucker, 43 F.4th 19 (2d Cir. 2022) (quoting
Handberry v. Thompson, 446 F.3d 335, 352-53 (2d Cir. 2006)). And courts “have

20 To “satisfy the second prong, ‘[t]he interference with the plaintiffs protected right
must be so shocking, arbitrary, and egregious that the Due Process Clause would
not countenance it even were it accompanied by full procedural protection.”
Maitzell, 64 F.4th at 486 (quoting Southerland v. City of New York, 680 F.3d 127,
152 (2d Cir. 2012)).
21 Plaintiffs also allege that they “have a protected liberty interest in making
medical decisions for their children.” Id. { 216. They have not, however, pursued
this theory or cited any caselaw supporting a substantive due process claim on this
basis.
29

thus found the deprivation of education to be a valid basis for a substantive due

process claim by a student expelled from school.” Id. (citing DeFabio v. E. Hampton
Union Free Sch. Dist., 623 F.3d 71, 82 (2d Cir. 2010)).
At “the same time,” however, “Plaintiffs’ right to an education under New
York State law is limited by the New York’s mandatory school vaccination
requirement, and ‘[t]he case law clearly establishes that conditioning school
enrollment on vaccination has long been accepted by courts as a permissible way for
States to inoculate large numbers of young people and prevent the spread of
contagious diseases.” Id. (quoting V.D. v. State of New York, 403 F. Supp. 3d 76, 87
(S.D.N.Y. 2019)). As such, in Goe, the court concluded that the plaintiffs “did not
plausibly allege an infringement of a constitutional right or the deprivation of a
property interest in education.” Goe, 43 F.4th at 34 (affirming district court’s
conclusion that “the Plaintiffs’ exclusion from school ultimately resulted from their
decisions not to comply with a condition for school enrollment permissibly set by the
state; the fact that Plaintiffs felt that their serious medical issues compelled them
not to comply with that condition does not change that”). See Doe, 520 F. Supp. 3d
at 258-59.
In sum, because Plaintiffs fail to identify a constitutional right at stake, or
deprivation of a property interest, their substantive due process claim fails.22

22 Because Plaintiffs fail to satisfy the first prong of the test, the Court need not
assess whether the Individual Defendants engaged in conscious-shocking conduct.
30

b. Procedural Due Process

Plaintiffs also argue that Defendants violated their procedural due process
rights by: (1) “failing to provide adequate notice”; (2) “failing to provide a
meaningful opportunity to be heard”; (3) “failing to follow established procedures”;
(4) “making arbitrary decisions without proper basis”; and (4) “failing to provide
proper appeals processes.” See Dkt. 25 217-221.
To “prevail on this claim, [Plaintiffs] must show that [they] possessed a
protected liberty or property interest, and that [they were] deprived of that interest
without due process.” McMenemy v. City of Rochester, 241 F.3d 279, 285~-86 (2d Cir.
2001) Gnternal citation and quotation marks omitted).
Here, even if Plaintiffs possessed a protected liberty or property interest, they
were not deprived of that interest without due process of law. In “evaluating what
process satisfies the Due Process Clause, ‘the Supreme Court has distinguished
between (a) claims based on established state procedures[;] and (b) claims based on
random, unauthorized acts by state employees.” Rivera-Powell v. New York City
Bad. of Elections, 470 F.3d 458, 465 (2d Cir. 2006) (quoting Hellenic Am.
Neighborhood Action Comm. v. City of New York, 101 F.3d 877, 880 (2d Cir. 1996)).
In the “latter case, the Due Process Clause of the Fourteenth Amendment is not
violated when a state employee intentionally deprives an individual of property or
liberty, so long as the State provides a meaningful post[-]deprivation remedy.”
Hellenic Am. Neighborhood Action Comm., 101 F.3d at 880.

31

In this case, Plaintiffs base their claim on individual acts of District
employees, rather than on established state procedures. See, e.g., Dkt. 25 J 226(a)
(alleging that Braunscheidel “[m]ade arbitrary decisions without proper basis”);
{ 226(f) (alleging that Andrews “[p]articipated in medical decisions without proper
authority and reviewed confidential information beyond his scope”). Anda
meaningful post-deprivation remedy—namely, an Article 78 proceeding—does exist,
thereby defeating Plaintiffs’ procedural due process claim.
In an analogous posture, the Second Circuit held that, if a “medical
exemption is denied by school authorities, a parent has the right to... seek judicial
review in state court through an Article 78 proceeding.” Goe, 43 F.4th at 34. And
the “Second Circuit has squarely held that a post-deprivation hearing via the
Article 78 process satisfies constitutional due process requirements.” Carnell v.
Myers, No. 17-CV-7693 (KMK), 2019 WL 1171489, at *6 (S.D.N.Y. Mar. 18, 2019).
See Locurto v. Safir, 264 F.3d 154, 175 (2d Cir. 2001) (“An Article 78 proceeding
therefore constitutes a wholly adequate post-deprivation hearing for due process
purposes”); McMenemy, 241 F.3d at 289 (“We agree with the district court that the
availability of an Article 78 proceeding under New York law provided [the plaintiff]
with an adequate post-deprivation remedy such that no procedural due process
violation occurred, even if [the plaintiff] possessed a cognizable property interest”).
Plaintiffs’ procedural due process claim fails on this record.

32

5. Monell Liability (Ninth Claim)

Plaintiffs also assert a Monell claim against the District under Section 1983

on the grounds that the District allegedly maintained various unlawful policies and
customs. See Dkt. 25 § 259-276. Because Plaintiffs fail to establish any
underlying Constitutional violations, however, their Monell claim is not viable. See
Goe, 43 F.4th at 34 (“as the district court correctly concluded that the [complaint]
failed to plausibly allege any underlying constitutional violations, it did not err in
dismissing the municipal liability claims against the School District Defendants’);
Segal v. City of New York, 459 F.3d 207, 219 (2d Cir. 2006) (“Because the district
court properly found no underlying constitutional violation, its decision not to
address the municipal defendants’ liability under Monell was entirely correct”).

6. Remaining Federal Claims

To the extent Plaintiffs assert additional federal claims in their Amended
Complaint, including under HIPAA (Third Claim), Right to Refuse Medical
Treatment (Seventh Claim), and Constitutional Privacy (Eighth Claim), those
claims are undeveloped on this record and provide no grounds for relief here.?°

7. State Law Claims

Lastly, the Court addresses Plaintiffs’ state law claims. The Amended
Complaint asserts a claim for “New York State Constitutional Violations” (Tenth

23 Plaintiffs make no mention of these claims in their preliminary injunction motion,
pre-hearing brief, or post-hearing brief.

33

Claim) on the grounds that “Defendants have deprived and continue to deprive A.C.
of her constitutional right to education” in various ways. See Dkt. 25 |{ 277-264
[sic].25 In addition, as discussed above, Plaintiffs’ Amended Complaint includes an
Article 78-type claim based on the improper denial of A.C.’s exemption request. See,
e.g., id. Jf 1-5, 10-14, 71-76, 112, 141-42, 270-74.
For the reasons below, the Court has supplemental jurisdiction over each of
Plaintiffs’ state-law claims.26 And the Article 78-type claim is likely to succeed on
the merits.

a. Supplemental Jurisdiction Framework

The Supreme Court “has long adhered to principles of pendent and ancillary
jurisdiction by which the federal courts’ original jurisdiction over federal questions
carries with it jurisdiction over state law claims that derive from a common nucleus
of operative fact, such that the relationship between [the federal] claim and the
state claim permits the conclusion that the entire action before the court comprises
but one constitutional case.” City of Chicago v. Intl Coll. of Surgeons, 522 U.S. 156,
164-65 (1997) (quoting Mine Workers v. Gibbs, 383 U.S. 715, 725 (1966)) (internal
quotation marks omitted).

25 These allegations appear on pages 45-46 of the Amended Complaint, which
contain errors in paragraph numbering.
26 Where, like here, “[{d]liversity jurisdiction .. . appears to be absent,” the “state
claims may lie only if the Court exercises supplemental jurisdiction.” E-Smart
Techs., Inc. v. Corse, No. 03 CIV. 7060 (RO), 2004 WL 2093531, at *3 (S.D.N.Y.
Sept. 17, 2004).
34

Congress “has codified those principles in the supplemental jurisdiction
statute, which combines the doctrines of pendent and ancillary jurisdiction under a

common heading.” Id. at 165 (citing 28 U.S.C. § 1367). The “statute provides[:] ‘in

any civil action of which the district courts have original jurisdiction, the district
courts shall have supplemental jurisdiction over all other claims that are so related
to claims in the action within such original jurisdiction that they form part of the

same case or controversy under Article III of the United States Constitution.” Id.
(quoting § 1367(a)). In short, “[p]endent jurisdiction exists only where the state and
federal claims comprise one case under Article III, tested by whether they share a
‘common nucleus of operative fact, such that the plaintiff ‘would ordinarily be
expected to try them all in one judicial proceeding.” Lyndonville Sav. Bank & Tr.
Co. v. Lussier, 211 F.3d 697, 704 (2d Cir. 2000) (quoting Gibbs, 383 U.S. at 725).
After “establishing that supplemental jurisdiction encompasses ‘other claims’
in the same case or controversy as a claim within the district courts’ original
jurisdiction ... the statute confirms the discretionary nature of supplemental
jurisdiction by enumerating the circumstances in which district courts can refuse its
exercise.” City of Chicago, 522 U.S. at 173 (quoting Section 1367(a)). Specifically, a
district court’s “discretion to decline supplemental jurisdiction is available only if
founded upon an enumerated category of subsection 1367(c).” Catzin v. Thank You
& Good Luck Corp., 899 F.3d 77, 85 (2d Cir. 2018) (quoting Shahriar v. Smith &
Wollensky Rest. Grp., Inc., 659 F.3d 234, 245 (2d Cir. 2011)) (emphasis in original).

35

Those categories include: “(1) the claim raises a novel or complex issue of
State law[;] (2) the claim substantially predominates over the claim or claims over
which the district court has original jurisdiction[;] (8) the district court has
dismissed all claims over which it has original jurisdiction[;] or (4) in exceptional
circumstances, there are other compelling reasons for declining jurisdiction.” Id.
(quoting 28 U.S.C. § 1367(c)).
If “one of the [Section] 1367(c) categories applies, the district court may then
undertake the discretionary inquiry of whether to exercise supplemental
jurisdiction.” Jd. And the court “should not decline to exercise supplemental
jurisdiction unless it also determines that doing so would not promote . . . [judicial]
economy, convenience, fairness, and comity.” Jd. (quoting Jones v. Ford Motor
Credit Co., 358 F.3d 205, 214 (2d Cir. 2004)).

b. Plaintiffs’ “Article 78”-Type Claim

In the following subsections, the Court discusses its jurisdiction over, and the
merits of, Plaintiffs’ Article 78-type claim. In short, this Court has supplemental
jurisdiction over this claim. Indeed, the claim arises from the same core set of facts
as Plaintiffs’ federal claims. And the limited exceptions that would permit the
Court to decline supplemental jurisdiction do not apply. All of the relevant
circumstances favor retaining jurisdiction.
Moreover, this state-law claim is meritorious on this record. Defendants
exceeded the bounds of their statutory authority by impermissibly second-guessing
Dr. Riccione’s conclusion that the Tdap vaccine would be detrimental to A.C.’s

36

health. In the absence of any rational basis for the District’s decision to deny the

exemption request, Plaintiffs are likely to prevail on the merits of this claim.

i. Supplemental Jurisdiction

As a preliminary matter, there is no impediment—generally speaking—to
exercising jurisdiction over Plaintiffs’ claim simply because it would fall under
Article 78 if brought in state court. The Second Circuit has stated that the question
whether “federal courts may properly exercise supplemental jurisdiction over claims
seeking relief under Article 78 is an unsettled [one] ....” DiMartile v. Hochul, 80
F.4th 443, 446 n.1 (2d Cir. 2023). See also Carver v. Nassau Cnty. Interim Fin.
Auth., 730 F.3d 150, 155 (2d Cir. 2013), as corrected (Sept. 27, 2013) (“We need not
decide, however, whether Article 78 can, on its own, deprive a federal court of
jurisdiction over claims brought under that provision, as some district court cases
have held”).
In Westchester Day Sch. v. Vill. of Mamaroneck, 504 F.3d 338, 343 (2d Cir.
2007), however, the Second Circuit affirmed the district court’s exercise of
jurisdiction over the plaintiffs Article 78 claim under the All Writs Act and the
court’s supplemental jurisdiction. In the district court proceeding, the plaintiffs
asserted an Article 78 claim that challenged the zoning board’s denial of the
plaintiffs application for a special use permit. See Westchester Day Sch. v. Vill. of
Mamaroneck, 417 F. Supp. 2d 477, 482 (S.D.N.Y. 2006), affd, 504 F.3d 338 (2d Cir.
2007). The district court concluded that it was “incumbent” upon it to “address the
legality” of the zoning board’s decision, in order to “protect the integrity” of a prior
37

order of the court and “to achieve the ends of justice entrusted to it.” Id. at 559-60
(internal citations and quotation marks omitted). The court further reasoned that it
had “become intimately familiar with the merits of this case,” noting, in particular,
that a “full record ha[d] been developed after significant discovery ....” Id. at 561.
Cf. Yonkers Racing Corp. v. City of Yonkers, 858 F.2d 855, 864-65 (2d Cir. 1988)
(affirming district court’s decision authorizing removal of an Article 78 proceeding
under the All Writs Act, where the district court had ordered the state court case to
be removed because the issues raised by the Article 78 proceeding went to the “very
essence” of a consent decree that had been entered by the district court).
Indeed, district courts in this circuit have “exercised supplemental
jurisdiction over Article 78 claims where the court otherwise had federal jurisdiction
over other claims raised.” Garofalo v. City of New York, No. 1:22-CV-07620-NRM-
VMS, 2023 WL 3792514, at *5 (E.D.N.Y. June 2, 2023) (citing Casale v. Metro
Transp. Auth., No. 05 Civ. 4232 (MBM), 2005 WL 3466405, at *5—6 (S.D.N.Y. Dec.
19, 2005); Residents & Fams. United, 2017 WL 5496277, at *13; Doe v. Zucker, No.
1:17-CV-1005 (GTS/CFH), 2018 WL 3520422, at *8 (N.D.N.Y. July 20, 2018); Cedar
Dev. E., LLC v. Town Bd. of Hurley, No. 1:21-cv-289 (MAD/TWD), 2021 WL
3422342, at *7-8 (N.D.N.Y. Aug. 5, 2021)).26

26 The Court acknowledges, however, that the “overwhelming majority of district
courts confronted with the question of whether to exercise supplemental jurisdiction
over Article 78 claims have found that they are without power to do so or have
declined to do so.” Coastal Commc’ns Serv., Inc. v. City of New York, 658 F. Supp.
2d 425, 459 (E.D.N.Y. 2009). But that does not preclude this Court from exercising
jurisdiction here, particularly given the extraordinary circumstances presented.

38

Casale, in particular, is persuasive.2” There, the court recognized that,
although state law “may direct that ‘[a] proceeding under this article shall be
brought in [state] supreme court,’ . . . this requirement has nothing to do with
whether the proceeding falls within a federal jurisdictional statute.” Id. at *6
(quoting CPLR 7804). And if “such a directive could deprive federal courts of
jurisdiction, state legislatures, not Congress, would control the power of the federal
judiciary.” Id. Such a result would be “plainly inconsistent with the structure of
the U.S. Constitution and its Supremacy Clause.” Doe v. New York Univ., 537 F.
Supp. 3d 483, 492 (S.D.N.Y. 2021) (citing U.S. CONST. art. VI, cl. 2). Moreover,
Congress has “never excluded disputes of the kinds within an Article 78 proceeding,
or any similar state-law proceeding, from the subject matter jurisdiction of federal
courts.” Elite Med. Supply of New York, LLC v. State Farm Mut. Ins. Co., No. 13-
CV-918-A, 2014 WL 823439, at *5 (W.D.N.Y. Mar. 3, 2014) (citing Horton v. Liberty
Mut. Ins. Co., 367 U.S. 348 (1961); Freeman v. Burlington Broadcasters, Inc., 204
F.3d 311 (2d Cir. 2000)).
Finding no impediment, in general, to exercising jurisdiction over such a
claim, the Court next applies the established framework set forth in Section 1367.
As an initial matter, Plaintiffs’ claim is “so related to” Plaintiffs’ federal
claims in this action “that they form part of the same case or controversy” under
Article III. See 28 U.S.C. § 1367(a). Each of them is based on various actions that

27 Casale addressed a motion for remand where the case had been removed to
federal court following commencement in state court as a “hybrid special proceeding
and action.” Jd. at *1.
39

Defendants took with respect to A.C.’s exemption request—and the ultimate
decision to deny the request. As such, they “share a ‘common nucleus of operative
fact,’ such that [Plaintiffs] ‘would ordinarily be expected to try them all in one
judicial proceeding.” Lyndonville, 211 F.3d at 704 (quoting Gibbs, 383 U.S. at 725).
Next, the enumerated Section 1367(c) categories do not apply. First,
Plaintiffs’ Article 78 claim does not raise “a novel or complex issue of State law.”
See Section 1867(c)(1). Rather, it involves a straightforward application of N.Y.
Pub. Health Law § 2164(8) and its implementing regulations, paired with clear
Second Circuit authority regarding school officials’ discretion in evaluating
requests. See Miller, 130 F.4th at 269; We The Patriots USA, Inc. v. Connecticut
Off. of Early Childhood Dev., 76 F.4th 130, 151 (2d Cir. 2023), cert. denied, 144 S.
Ct. 2682 (2024).29 Second, Plaintiffs’ Article 78 claim does not “substantially
predominate[] over” their federal claims. See Section 1367(c)(2). Plaintiffs assert
nine federal causes of action claiming that Defendants’ actions violate their rights
under various Constitutional provisions and federal laws. Plaintiffs’ state-law
claim is no more complex, and does not overshadow, their federal claims in terms of
proof required or relief requested. Indeed, Defendants’ position that Plaintiffs fail
to “plead an Article 78 claim or allege a cause of action for violations of Public
Health Law § 2164,” Dkt. 88 at 19, undercuts any argument that such claim

23 Defendants’ argument that Lynch v. Clarkstown Cent. School Dist., 155 Misc. 2d
846, 849 (Sup. Ct. Rockland County, 1992), is the “only” reported New York State
court decision interpreting the relevant provisions, see Dkt. 88 at 24, ignores these
Second Circuit authorities and is, therefore, unavailing.

AO

“predominates” over Plaintiffs’ other causes of action. Third, the Court has not
finally determined any of Plaintiffs’ federal claims. See Section § 1367(c)(8).2°
Fourth, on this record, no “exceptional circumstances” give rise to “compelling
reasons” to decline jurisdiction—particularly in light of the extensive litigation that
has already occurred before this Court. See id. § 1367(c)(4).
Furthermore, judicial economy, convenience, fairness, and comity favor
retaining jurisdiction. The Court and parties have invested significant resources
into this case thus far. The case has been actively litigated in this Court for more
than five months. The parties have engaged in meaningful discovery. The Court
resolved numerous discovery motions and motions in limine. The Court also held a
multi-day preliminary injunction hearing at which multiple witnesses testified.
Indeed, it would be a “pointless waste of judicial resources to require a state court to
invest the time and effort necessary to familiarize itself with a case well-known to
the presiding federal judge.” Enercomp, Inc. v. McCorhill Pub., Inc., 873 F.2d 536,
546 (2d Cir. 1989) (retaining jurisdiction where “it would have ‘stood judicial
economy on its head’ not to proceed with the state claims even if the [federal] action

30 As discussed above, none of Plaintiffs’ federal claims is likely to succeed on the
merits. And the Court recognizes that, “the elimination of federal-law claims prior
to trial generally points to declining to exercise supplemental jurisdiction in the
usual case....” Catzin, 899 F.3d at 86 Gnternal citation and quotation marks
omitted) (emphasis added). That “clearly does not mean,” however, “that the
balance of the factors always points that way.” Id. Rather, the “district court must
still meaningfully balance the supplemental jurisdiction factors.” Id. On this
record, those factors heavily favor retaining jurisdiction—even in the absence of any
likely meritorious federal claim.
4]

had been dismissed prior to trial”). The most economical and convenient approach
is to retain jurisdiction.
Concerns of fairness also counsel against forcing Plaintiffs to start over in
state court. Plaintiffs have expended significant effort litigating the case in this
Court—and, as discussed below, their “Article 78”-type claim is likely to succeed on
the merits. Duplicative litigation in state court would undoubtedly delay any relief
they may receive. In addition, the risk of harm to A.C. is substantial, as the District
would likely seek to exclude her from school pending relief in state court.
Defendants, meanwhile, suffer no prejudice from this issue remaining in federal
court.3!
Lastly, this Court’s exercise of supplemental jurisdiction does not implicate
comity concerns. The Second Circuit provides dispositive analysis of the issue on
the merits, as set forth below. And this is not a case in which Plaintiffs are forum
shopping or seeking to use federal court to litigate a purely state matter.
In sum, even if Plaintiff’s federal claims were dismissed prior to trial, this is
“one of the rare cases in which the court should exercise its pendent jurisdiction
despite dismissal of plaintiffs’ . . . federal cause[s] of action ....” Boucher v. Sears,

31 The Court rejects Defendants’ contention that, at the preliminary injunction
hearing, they were “not permitted to examine A.C.’s substantive entitlement to an
exemption, could not explore her underlying conditions, and could not offer proof as
to whether or not a tic disorder constitutes a neurological condition that would serve
as a contraindication for the Tdap vaccine.” See Dkt. 88 at 29-30. The Court
permitted both sides to supplement the record after the hearing. See Dkt. 77 (“in
fairness to both sides, the forthcoming briefing may include reference to new
affidavits, or additional deposition transcripts, that would bear on the Section 1367
and merits issues... .”).
42,

No. 89-CV-1353, 1995 WL 283742, at *9 (N.D.N.Y. May 8, 1995) (retaining pendant
jurisdiction despite dismissal of federal claims where the “parties and the court
have expended vast resources in making this case trial-ready; [d]iscovery is
complete, and none of plaintiffs’ state law claims presently appear[s] to involve
novel interpretations of state law”). All of the relevant circumstances support
retaining jurisdiction.

i. Merits

Plaintiffs’ Article 78-type claim is likely to succeed on the merits. Ina
“proceeding seeking judicial review of administrative action, the court may not
substitute its judgment for that of the agency responsible for making the
determination, but must ascertain only whether there is a rational basis for the
decision or whether it is arbitrary and capricious.” Weiss v. Cnty. of Nassau, 176
A.D.3d 1085, 1086 (2d Dep’t 2019) (internal citation and quotation marks omitted).
If the “determination has a rational basis, it will be sustained, even if a different
result would not be unreasonable.” Ward v. City of Long Beach, 20 N.Y.3d 1042,
1043 (2013).
Here, the evidence demonstrates that, under New York State’s statutory and
regulatory framework regarding mandatory vaccination for students attending
school, A.C. was entitled to an exemption from the Tdap vaccine. An overview of
that framework, as well an analysis of Defendants’ decision to deny A.C.’s
exemption request, follow.

43

For “more than a century,” New York “has required mandatory immunization
for children to attend school.” Goe, 43 F.4th at 25 (citing Act of Apr. 16, 1860, ch.

438, 1860 N.Y. Laws 761, 761-62). Today, “all children between the ages of two
months and eighteen years must be immunized against a number of diseases to be
admitted to school or to attend school for more than fourteen days.” Jd. (citing N.Y.
Pub. Health Law § 2164(7)(a)). These diseases “include ‘poliomyelitis, mumps,
measles, diphtheria, rubella, varicella, hepatitis B, pertussis, tetanus, and, where
applicable, Haemophilus influenzae type b (Hib), meningococcal disease, and
pneumococcal disease.” Id. (quoting N.Y. Pub. Health Law § 2164(7)(a)).
The State “has also permitted exemptions from school immunization
requirements for many decades.” Id. Currently, however, it “only allows medical
exemptions from school immunization.” Id. at 26. Under “the State’s present
requirements, a child may be exempted from school immunization if ‘any’ state-
licensed physician ‘certifies that such immunization may be detrimental to [the]
child’s health.” Id. (quoting N.Y. Pub. Health Law § 2164(8)). The “request must
‘contain|[ ] sufficient information to identify a medical contraindication to a specific
immunization.” Id. (quoting N.Y. Comp. Codes R. & Regs. tit. 10, § 66-1.3(c)).
School “officials enforce these requirements.” Id. (citing N.Y. Pub. Health Law §
2164(7)(a)). And they “may require additional supporting information before
granting requests for exemptions.” Id. (citing N.Y. Comp. Codes R. & Regs. tit. 10, §
66-1.3(c)).

44

The regulations “require the use of a medical exemption form approved by
the Health Department . . . completed and signed by a physician, certifying that
‘immunization may be detrimental to the child’s health.” Id. A “completed form
must provide ‘sufficient information to identify a medical contraindication to a
specific immunization and specify[ ] the length of time the immunization is
medically contraindicated.” Id. The regulations “also define the phrase ‘[m]Jay be
detrimental to a child’s health,’ as used in section 2164(8) of the New York Public
Health Law, to mean ‘that a physician has determined that a child has a medical
contraindication or precaution to a specific immunization consistent with ACIP
guidance or other nationally recognized evidence-based standard of care.” Id.
(quoting N.Y. Comp. Codes R. & Regs. tit. 10, § 66-1.1(1)).
Here, Plaintiffs submitted a facially and procedurally valid exemption
request on behalf of A.C. Specifically, they provided the District with a completed
New York State Department of Health form signed by a state-licensed physician
(Dr. Riccione). See Dkt. 26-2. The form describes “chronic” neurological vocal and
motor tics, which are a “precaution” to the Tdap vaccine pursuant to guidelines
issued by the Center for Disease Control and Prevention’s Advisory Committee on
Immunization Practices. See Dkt. 32-7 at 5 (identifying “progressive or unstable
neurological disorder” as a precaution to Tdap). And Dr. Riccione testified that he

was familiar with ACIP guidance when he completed the form. He further testified
that he plans to assess A.C.’s need for an exemption on a year-by-year basis.

45

To be sure, the “statutory exemption is mandatory... and applies to an
objectively defined group.” Miller, 130 F.4th at 269 (internal citation and quotation
marks omitted). And the “authority conferred to physicians is not discretionary; a
physician’s use of [his] professional medical judgment is limited by the statute and
regulations.” Jd. The “same is true of the authority conferred upon school officials.”
Id. Even “though school officials have the authority to conclude that the documents
submitted in support of a medical exemption contain sufficient (or insufficient)
information, they do not have ‘discretion to approve or deny exemptions on a case-
by-case basis’ for any reason.” Id. (quoting We The Patriots USA, Inc., 76 F.4th at
151) (emphasis in original).
As such, the law required the District to accept A.C.’s valid exemption
request. Dr. Szalkowski had no authority under New York law to second-guess Dr.
Riccione’s medical opinion. Indeed, the “statute does not allow school officials to
‘decide which reasons for not complying with the policy are worthy of solicitude.”
Id. at *7 n.14 (quoting Fulton v. City of Philadelphia, 593 U.S. 522, 537 (2021).
Because the District had no rational basis to deny the exemption request, there is a
likelihood of success on the merits of this claim.

c. The New York State Constitutional Claim

Lastly, Plaintiffs allege that Defendants have deprived A.C. of her rights
under “Article XI § 1 of the New York State Constitution[,]” which “guarantees all
children the right to a free basic education.” Dkt. 25 277-264 [sic]. Article XI,
Section 1 of the New York State Constitution “provides that ‘[t]he legislature shall

46

provide for the maintenance and support of a system of free common schools,
wherein all the children of this state may be educated.” Sabur ex rel. Kessler v.
Brosnan, 203 F. Supp. 2d 292, 302 (E.D.N.Y. 2002) (quoting N.Y. Const. Art. XI,
§ 1).
This provision, however, “does not create a private cause of action.” Id.
(citing Donohue v. Copiague Union Free School Dist., 47 N.Y.2d 440, 443 (N.Y.
1979). According to the New York Court of Appeals, even a “terse reading of this
provision reveals that the Constitution places the obligation of Maintaining and
supporting a system of public schools upon the Legislature.” Donohue, 47 N.Y.2d at
443. And “this general directive was never intended to impose a duty flowing
directly from a local school district to individual pupils to ensure that each pupil
receives a minimum level of education, the breach of which duty would entitle a
pupil to compensatory damages.” Id. See also Handberry v. Thompson, 446 F.3d
335, 353 (2d Cir. 2006) (“It does not appear that this provision alone gives rise to a
‘legitimate claim of entitlement’ by ‘children of [the] state,’ because on its face it
requires only that the legislature maintain a public school system”) (quoting N.Y.
Const. Art. XI, § 1).
Accordingly, there is no likelihood of success on the merits of Plaintiffs’ claim
under the New York State Constitution. See K.M. ex rel. D.G. v. Hyde Park Cent.
Sch. Dist., 381 F. Supp. 2d 343, 363 (S.D.N.Y. 2005) (“Article XI does not create a
private cause of action”) (citing Donohue, 47 N.Y.2d at 443); Schafer v. Hicksville

A7

Union Free Sch. Dist., No. 06-CV-2531 JS ARL, 2011 WL 1322908, at *19 (E.D.N.Y.
Mar. 31, 2011) (same).

B. Irreparable Harm

The Court next turns to the irreparable harm factor. Plaintiffs argue that
the exclusion of A.C. from school “will cause A.C. irreparable harm, including loss of
educational access, emotional distress, social stigmatization, and academic
disruption.” See Dkt. 26-13 at 3. They further argue that the “cumulative impact of
A.C.’s exclusion from school creates an escalating harm that becomes increasingly
difficult to remedy over time.” Id. at 15.

31 Given the common nucleus of facts with Plaintiffs’ other claims, the Court has
supplemental jurisdiction over this New York constitutional claim. No enumerated
category under Section 1367(c) applies. And in light of its clear lack of merit, the
Court retains jurisdiction in the interests of economy, convenience, fairness, and
comity. See Ingram v. Nassau Health Care Corp., No. 17CV05556JMASIL, 2020
WL 806715, at *2 (E.D.N.Y. Feb. 14, 2020) (“because all of those state law claims
are plainly meritless, the Court finds that it is appropriate to exercise supplemental
jurisdiction over those claims and to dismiss them on the merits rather than subject
Defendant to additional frivolous litigation in state court”); Glendora v. Marshall,
947 F. Supp. 707, 712 (S.D.N.Y. 1996), aff'd, 129 F.3d 113 (2d Cir. 1997) (adopting
recommendation to “retain[] supplemental jurisdiction” over state law claims “but
then [find] them deficient on the merits”); Garry v. McPhillips, No. 9:21-CV-172
(MAD/MJK), 2024 WL 4023890, at *8 (N.D.N.Y. Sept. 3, 2024) (“the most prudent
course of action is to exercise supplemental jurisdiction over Plaintiffs state law
negligence claim given the common nucleus facts and judicial economy”); Eng v.
City of New York, 715 F. App’x 49, 54 (2d Cir. 2017) (summary order) (rejecting
argument that, “even assuming the allegations are insufficient to make out prima
facie claims under [federal and state law] .. . the district court should have declined
to exercise supplemental jurisdiction,” reasoning that, because the federal and state
claims “all arise out of the same common nucleus of operative facts, the district
court did not abuse its discretion in exercising supplemental jurisdiction over the
[state] claims”).

48

Irreparable harm is “certain and imminent harm for which a monetary award
does not adequately compensate.” Wisdom Imp. Sales Co., L.L.C. v. Labatt Brewing
Co., Ltd., 339 F.3d 101, 113 (2d Cir. 2003). It exists “where, but for the grant of
equitable relief, there is a substantial chance that upon final resolution of the action
the parties cannot be returned to the positions they previously occupied.” Brenntag
Intl Chem., Inc. v. Bank of India, 175 F.3d 245, 249 (2d Cir. 1999).
Here, A.C. would suffer irreparable harm absent an injunction. Under
“circumstances similar to those presented here, school-aged children have been
deemed irreparably injured as a result of being excluded from attending classes.”
NM v. Hebrew Acad. Long Beach, 155 F. Supp. 3d 247, 257 (E.D.N.Y. 2016). See
also Caviezel v. Great Neck Pub. Sch., 701 F. Supp. 2d 414, 426 (E.D.N.Y. 2010),
affd, 500 F. App’x 16 (2d Cir. 2012) (“[the court is] satisfied that there would be
irreparable harm to this child entering school after [the start of the school year]”);
Check ex rel. MC v. New York City Dep’t of Educ., No. 18-CV-791 SLT LB, 2013 WL
2181045, at *9 (E.D.N.Y. May 20, 2013) (because “courts considering this issue
routinely assume that a child prevented from attending school would suffer
irreparable harm, plaintiffs[’] application turns on her likelihood of success on the
merits”) (citing Lewis v. Sobol, 710 F. Supp. 506, 507 (S.D.N.Y. 1989)). And to avoid
exclusion from school, A.C. would have to receive the Tdap vaccination, which may
irreparably harm her health—as at least her doctor testified.
The irreparable harm factor favors Plaintiffs on this record.

49

C. Public Interest and Balance of Equities

The Court next considers whether a preliminary injunction is in the public
interest and whether the balance of equities tips in Plaintiffs’ favor. Plaintiffs

argue that “A.C. faces ongoing educational, emotional, and constitutional harm,
which far outweighs any inconvenience to the District in complying with the
requested injunctive relief.” See Dkt. 26-13 at 16. Defendants argue that “[p]ublic
health is a matter of state concern, and the State and District have a compelling
interest in the consistent and coherent administration of public health measures.”
Dkt. 32-1 at 31.
Here, the balance of equities tips in Plaintiffs’ favor. Absent an injunction,
Plaintiffs are harmed because A.C. must either receive the Tdap vaccine—contrary
to her doctor’s recommendation—or face exclusion from school. Defendants’
equitable counterweights, if any, are insufficient to deny relief on this record. The
District maintains an exceedingly high vaccination rate amongst its students. The
marginal increase in public health risk that might result from one student not
receiving a Tdap vaccine falls far short of the risk of irreparable harm posed to A.C.
absent an injunction.

D. Summary

All of the preliminary injunction factors favor Plaintiffs. Plaintiffs have
demonstrated a likelihood of success on the merits of their Article-78 type claim due
to the District’s improper denial of their valid exemption request. This Court has,
and finds no grounds to decline, supplemental jurisdiction over that claim. Further,
50

Plaintiffs face irreparable harm absent an injunction, given that A.C. would have to
either receive the Tdap vaccine—which cannot be undone—or be excluded from
school. The minimal public health concerns that may result from an injunction, and
the balance of equities, do not justify denying relief on this record.

II. SECURITY

Federal Rule of Civil Procedure 65(c) requires the Court to consider whether
it should require plaintiffs to post security and, if so, in what amount. See Dr. ’s
Assocs., Inc. v. Distajo, 107 F.3d 126, 186 (2d Cir. 1997) (“Rule 65(c) gives the
district court wide discretion to set the amount of a bond, and even to dispense with
the bond requirement [in certain situations]”).
On these facts, the Court will not require Plaintiffs to post security because a
bond requirement does not fit the fact-pattern and interests involved in this

case. See id. at 135-36 (affirming district court’s decision not to require security
where the district court “found that [defendants] would not suffer damage or loss
from being forced to arbitrate in lieu of prosecuting their state-court cases”). See
also Clarkson Co. v. Shaheen, 544 F.2d 624, 632 (2d Cir. 1976) (because no request
for a bond was ever made in the district court, and because, under Fed. R. Civ. P.
65, “the amount of any bond to be given upon the issuance of a preliminary
injunction rests within the sound discretion of the trial court”).

51

CONCLUSION
For the above reasons, the Court GRANTS Plaintiffs’ motion for a
preliminary injunction as follows: it is
ORDERED that Defendants are enjoined from excluding A.C. from school on
the basis of her not receiving the Tdap vaccine; and it is further
ORDERED that the District shall accept A.C.’s December 3, 2024 medical
exemption from Dr. Riccione as valid under New York Public Health Law § 2164(8):
and it is further
ORDERED that Defendants are enjoined from enforcing against Plaintiffs

any policy or practice that permits the substitution of the District’s or its medical
director’s substantive judgment for that of a licensed physician under New York
Public Health Law § 2164(8); and it is further
ORDERED that this preliminary injunction shall remain in effect pending
disposition of the case on the merits—or the conclusion of the current school year,
whichever is earlier; and it is further
ORDERED that no bond shall be required.

SO ORDERED.
Dated: April 25, 2025
Buffalo, New York .
/ —
bgt TAG
UNITED STATES DISTRICT JUDGE

52

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10852262. Public record. Not legal advice.