Viola

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

Susan Viola,

Plaintiff,

-v-

2:24-cv-8407

State University of New York; Carol A. Gomes, in her (NJC) (JMW)

official capacity as Chief Executive Officer of Stony Brook

University Hospital; Stony Brook University Hospital; John

B. King, in his official capacity as Chancellor of SUNY,

Defendants.

OPINION AND ORDER

NUSRAT J. CHOUDHURY, United States District Judge:

Plaintiff Susan Viola filed this action against the State University of New York

(“SUNY”), Stony Brook University Hospital (“SBUH”), Carol A. Gomes, in her official capacity

as Chief Executive Officer of SBUH, and John B. King, in his official capacity as Chancellor of

SUNY (together “Defendants”), alleging that SBUH’s termination of her employment for failure

to comply with COVID-19 vaccination requirements constituted unlawful discrimination on the

basis of disability and religion. (Am. Compl., ECF No. 14.) The Amended Complaint brings

claims under New York State Human Rights Law (“NYSHRL”) § 296 (“Section 296”) alleging

that Defendants subjected Viola to disparate treatment on the basis of her disability, failed to

provide her with reasonable accommodations for a disability that prevents her from being

vaccinated against COVID-19, and retaliated against Viola by terminating her employment

(together, “NYSHRL Claims”). (Am. Compl. ¶¶ 79–89.) The Amended Complaint also brings

the following claims under 42 U.S.C. § 1983 (“Section 1983”) and various provisions of the U.S.

Constitution: (1) that Defendants violated Viola’s Fourteenth Amendment right to substantive

due process by infringing upon her fundamental right to deny medical treatment; (2) that

Defendants violated the Supremacy Clause by failing to provide Viola a religious exemption

from the COVID-19 vaccination requirement for healthcare workers even though federal law

recognizes such exemptions; and (3) that Defendants violated Viola’s First Amendment right to

free exercise of religion by enforcing the COVID-19 vaccination requirement.

Before me is Defendants’ Motion to Dismiss all claims in the Amended Complaint with

prejudice. Defendants argue that the Amended Complaint should be dismissed with respect to

SUNY, Gomes, and King due to Viola’s failure to serve summonses upon them as required for

this Court to exercise personal jurisdiction. Defendants also argue that all claims are barred by

the Eleventh Amendment doctrine of sovereign immunity and are otherwise rendered moot

because the COVID-19 vaccine mandate upon which the claims are premised has since been

repealed. In the alternative, Defendants contend that all federal claims must be dismissed for

failure to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure (“Fed. R. Civ.

P.”), and that I should decline to exercise jurisdiction over the NYSHRL claims under 28 U.S.C.

§ 1367(c).

For the reasons explained below, Defendants’ Motion to Dismiss the Amended

Complaint is granted in its entirety. Despite filing the Amended Complaint on April 16, 2025,

which added SUNY, Gomes, and King as Defendants in this action, Viola has yet to serve

summonses upon them, warranting dismissal of all claims against them under Rule 12(b)(2) and

12(b)(5). However, even if Viola had served SUNY, Gomes, and King, her claims against all

Defendants are nonetheless barred under the doctrine of Eleventh Amendment sovereign

immunity. SBUH and SUNY have long been held to fall within the ambit of New York’s

sovereign immunity, and Viola’s claims against Gomes and King in their individual capacities do

not fall within the narrow exception set forth in Ex parte Young for prospective relief claims

against state officers acting in their official capacities. Furthermore, the challenged vaccine

mandate has been repealed, which renders Viola’s claims for prospective relief moot. As a result,

the claims in the Amended Complaint are dismissed without prejudice in their entirety under

Rule 12(b)(1) for lack of subject matter jurisdiction. Moreover, in the alternative, even if the

claims are not barred by virtue of lack of personal jurisdiction, sovereign immunity, and

mootness, the Amended Complaint still fails to state federal claims for relief under Section 1983

and the First and Fourteenth Amendments and the Supremacy Clause of the U.S. Constitution,

and I decline to exercise supplemental jurisdiction over any state law claims.

As such, the Amended Complaint is dismissed in its entirety. Because all claims are

dismissed for lack of subject matter jurisdiction, the Amended Complaint is dismissed without

prejudice and with leave to refile in state court.

FACTUAL BACKGROUND

For purposes of resolving the pending Motion, I accept as true the factual allegations in

the Amended Complaint and draw all reasonable inferences in Viola’s favor. See Town of

Babylon v. Fed. Hous. Fin. Agency, 699 F.3d 221, 227 (2d Cir. 2012). In resolving a motion to

dismiss, a court may consider documents that are attached or integral to the complaint or

incorporated by reference in it, or otherwise are the subject of judicial notice. Clark v. Hanley, 89

F.4th 78, 93 (2d Cir. 2023).

Viola was hired by SBUH in 2008 and worked there until her termination on December

6, 2021. (Am. Compl. ¶¶ 1–2, 25.) During the latter years of Viola’s employment, the emergence

of the COVID-19 pandemic led to the enactment of state public health regulations to help

mitigate the spread of the virus. (See id. ¶ 3.) On August 26, 2021, the New York Department of

Health adopted an emergency rule set forth in N.Y. Comp. Codes R. & Regs. Tit. 10 § 2.61

(2021) (repealed Oct. 4, 2023) (“Section 2.61”), which required hospitals, nursing homes, adult

care facilities, and other covered healthcare facilities to “continuously require” certain employees

to be fully vaccinated against COVID-19 beginning on September 27, 2021. See Am. Compl.

¶¶ 3–4, 63; see also We The Patriots USA, Inc. v. Hochul, 17 F.4th 266, 274–76 (2d

Cir.), opinion clarified, 17 F.4th 368 (2d Cir. 2021) (providing background on Section 2.61).

Under Section 2.61, any employee who would otherwise be required to be vaccinated against

COVID-19 could seek a medical exemption from the vaccine mandate “[i]f any licensed

physician, physician assistant, or certified nurse practitioner certifie[d] that immunization with

COVID-19 vaccine is detrimental” to the individual’s health. Section 2.61(d)(1); see also Ex. 1,

Am. Compl, ECF No. 14-1. Section 2.61 did not, however, include an exemption from its

mandate on the basis of religious beliefs. Prior to and after the issuance of the vaccine mandate,

Viola complied with other COVID-19 mitigation protocols, including social distancing, wearing

a mask, and getting tested for the coronavirus on a weekly basis. (Am. Compl. ¶¶ 45, 50.)

On September 1, 2021, Viola filed a letter with SBUH’s Office of Equity and Access

requesting a “religious exemption from any covid vaccine” on the basis of her sincerely held

religious beliefs. (Ex. 3 (“EA Letter”), Am. Compl., ECF No. 14-3.) In the letter, Viola provides

an overview of the tenets of her Christian faith, a history of her religious education, and

quotations from the Bible to argue that the vaccine mandate violates her religious beliefs,

concluding, “I cannot accept something with which I disagree in order to keep my job, travel, or

attend social events, etc.” (Id.) The letter also contains a section called “LEGAL.” (Id. at 4.) In

this section, Viola asserts that there is no evidence that she poses a direct threat to others, that a

denial of her requested accommodations would be unlawful, that “Title VII of the U.S. Civil

Rights Act Prohibits Religious Discrimination,” and that her “religious rights and [her] right to

privacy are protected by the U.S. Constitution and the Constitution of this State [New York].”

(Id.) In the letter, Viola requested that SBUH provide the following accommodations:

My request for accommodation is that I do not consent to getting a covid vaccine, taking

more frequent covid tests than vaccinated employees or wearing a mask, shield or other

face covering, or any form of PPE in areas or situations in which vaccinated employees

are not required to wear them. I participate normally in all duties, responsibilities,

activities and events without any form of discrimination, harassment, intimidation,

separation or segregation.

(Id.) SBUH denied her request for these specific accommodations. (Am. Compl. ¶ 76.)

On October 22, 2021, Jennifer Robinson, a physician assistant, wrote a letter detailing

Viola’s underlying health conditions and sensitivities to certain medications. (Id. ¶ 37; Ltr. (“PA

Letter”), Ex. B, Am. Compl., ECF No. 14-2.) Based on Viola’s underlying health and medication

concerns, Robinson recommended that “it would not be in [Viola’s] best interest to receive the

Covid 19 vaccination at this time due to the probability of allergic reaction.” (PA Letter.) On a

date not identified in the Amended Complaint, Viola subsequently filed for an accommodation

request to be exempted from Section 2.61’s vaccination requirement, but SBUH denied the

request without explanation and instead “harassed [Viola] to comply with the mandate.” (Am.

Compl. ¶¶ 40–42, 46.) SBUH did not “engage in any sort of interactive process with [Viola] to

determine whether [it] could reasonably accommodate” her. (Id. ¶ 47.)

On November 5, 2021, Viola was served with a Notice of Discipline, which proposed the

termination of her employment at SBUH. (Id. ¶ 20; Notice of Termination (“Termination

Letter”), ECF No. 14-4.)1 Subsequently, on December 6, 2021, Viola received a Notice of

1 The Amended Complaint does not describe or attach the Notice of Discipline or describe its

contents.

Termination letter, which terminated her employment and noted that Viola did not timely appeal

the Notice of Discipline. (Am. Compl. ¶ 20; Termination Letter.)

PROCEDURAL HISTORY

Viola commenced this litigation by filing a Complaint on January 6, 2024. (Compl., ECF

No. 1.) Initially, Viola brought claims only against SBUH. (Id.) Summons was issued by the

Clerk of Court with respect to SBUH on January 27, 2025 (ECF No. 6), and Viola filed the

executed summons on the docket on February 13, 2025 (ECF No. 7.) On March 3, 2025, SBUH

filed a pre-motion letter seeking a conference ahead of its anticipated motion to dismiss the

Complaint. (ECF No. 9.) On March 4, 2025, I issued an order waiving the pre-motion conference

requirement and set a briefing schedule governing SBUH’s anticipated motion to dismiss. (Elec.

Order, Mar. 4, 2025.) In the scheduling order, I noted that after SBUH served its motion to

dismiss on Viola, Viola could file an amended complaint. (Id.) I further noted that it was

“unlikely that [Viola] will have any further opportunity to amend.” (Id.)

On April 16, 2025, Viola filed her Amended Complaint. (Am. Compl., ECF No. 14.) In

her Amended Complaint, Viola added claims against the State University of New York, Carol A.

Gomes, in her official capacity as Chief Executive Officer of Stony Brook University Hospital,

and John B. King, in his official capacity as Chancellor of SUNY. (Id.) The Amended Complaint

seeks the following forms of relief:

• (1) an order declaring that the acts and practices alleged in the Amended Complaint

violate the NYSHRL;

• (2) an order declaring that Defendants aided and abetted religious discrimination in

violation of the NYSHRL and violated Viola’s constitutional rights under the First

Amendment, Fourteenth Amendment, and Supremacy Clause of the U.S. Constitution;

• (3) an order requiring Gomes and King to reinstate Viola to her former position with full

seniority and with no break in service, status, retirement credits, salary increments,

bonuses, and benefits, to place her in the position in which she would be as if the

requested accommodations had never been denied, and removing all negative

employment charges against her arising from her refusal to get vaccinated against

COVID-19;

• (4) an award of ancillary damages for Viola’s lost wages, including back pay, front pay,

overtime, salary increases, benefits, and retirement credits;

• (5) compensatory damages;

• (6) nominal damages;

• (7) punitive damages on the account of Defendants’ alleged intentional disregard or

reckless indifference to Viola’s statutory rights;

• (8) pre and post-judgment interest on any amount awarded to Viola at the highest rates

and earliest dates allowed by law;

• (9) attorneys’ fees and costs;

• (10) and any other relief this Court deems just and proper.

(Am. Compl. at 23–24.)

On April 25, 2025, Defendants filed a Motion to Dismiss the Amended Complaint (the

“Motion”), seeking dismissal of all claims for various reasons, including insufficient service of

process and lack of personal jurisdiction under Rule 12(b)(2) and (5), lack of subject matter

jurisdiction under Rule 12(b)(1), and failure to state a claim under Rule 12(b)(6). (Mot., ECF No.

17; Mem. in Supp. of Mot. (“Mem.”), ECF No. 17-4). Viola opposed the Motion on June 13,

2025. (Mem. in Opp. (“Opp.”), ECF No. 22.) Defendants filed their reply brief on June 23, 2025.

(Reply, ECF No. 23.)

On June 11, 2025, Viola filed proposed summonses for Gomes, King, and SUNY. (ECF

Nos. 18–20.) On June 13, 2025, the Clerk of Court filed a notice on the docket informing Viola

that the summonses were not issued with respect to Gomes, King, and SUNY because Viola did

not file the proposed summonses on the proper form. (Elec. Order, Jun. 13, 2025.) The Order

instructed Viola to “correct and resubmit using [the] Proposed Summons/Civil Cover Sheet.”

(Id.) Viola still has not resubmitted her proposed summonses, and thus summonses have not yet

been served on Gomes, King, and SUNY.

LEGAL STANDARDS

I. Rule 12(b)(1)

“Dismissal of a case for lack of subject matter jurisdiction under Rule 12(b)(1) is proper

when the district court lacks the statutory or constitutional power to adjudicate it.” Russo v.

United States, No. 22-1869, 2024 WL 726884, at *1 (2d Cir. Feb. 22, 2024) (citing Green v.

Dep’t of Educ. of the City of New York, 16 F.4th 1070, 1075 (2d Cir. 2021)). “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). “If the

court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the

action.” Fed. R. Civ. P. 12(h)(3).

A court considers a Rule 12(b)(1) challenge before other arguments for dismissal because

dismissal for lack of subject matter jurisdiction renders a defendant’s defenses and objections

moot. See Daly v. Citigroup Inc., 939 F.3d 415, 426 (2d Cir. 2019); see also Pressley v. City of

New York, No. 11-cv-03234, 2013 WL 145747, at *5 (E.D.N.Y. Jan. 14, 2013) (“A court faced

with a motion to dismiss pursuant to both Rules 12(b)(1) and 12(b)(6) must decide the

jurisdictional question first because a disposition of a Rule 12(b)(6) motion is a decision on the

merits and, therefore, an exercise of jurisdiction.”). When a party raises a facial challenge to the

court’s subject matter jurisdiction, “the plaintiff has no evidentiary burden”; the district court

need only “determine whether the [p]leading alleges facts that affirmatively and plausibly

suggest that the plaintiff has standing to sue.” Carter v. HealthPort Techs., LLC, 822 F.3d 47, 56

(2d Cir. 2016); see also Lugo v. City of Troy, 114 F.4th 80, 87 (2d Cir. 2024). In assessing a

facial challenge to standing, a court “must take all uncontroverted facts in the complaint (or

petition) as true, and draw all reasonable inferences in favor of the party asserting jurisdiction.”

Tandon v. Captain’s Cove Marina of Bridgeport, Inc., 752 F.3d 239, 243 (2d Cir. 2014).

When a party has placed jurisdictional facts into dispute by “offer[ing] extrinsic evidence

that contradicts the material allegations of the complaint,” however, “the court has the obligation

to decide issues of fact by reference to evidence outside the pleadings, such as affidavits.” Harty

v. W. Point Realty, Inc., 28 F.4th 435, 441–42 (2d Cir. 2022) (quoting Tandon, 752 F.3d at 243).

When the extrinsic evidence “reveals the existence of factual problems,” the plaintiff “will need

to come forward with evidence controverting that presented by the defendant” regarding

standing. Lugo, 114 F.4th at 87. “In that case, the party asserting subject matter jurisdiction has

the burden of proving by a preponderance of the evidence that it exists.” Tandon, 752 F.3d at

243; Katz v. Donna Karan Co., L.L.C., 872 F.3d 114, 120 (2d Cir. 2017) (same). “[I]f the

evidence proffered by the defendant is immaterial because it does not contradict plausible

allegations that are themselves sufficient to show standing,” the plaintiffs “are entitled to rely”

on the complaint’s allegations. Carter, 822 F.3d at 57–58.

II. Rule 12(b)(5)

“Before a federal court may exercise personal jurisdiction over a defendant, the

procedural requirement of service of summons must be satisfied.” Buon v. Spindler, 65 F.4th 64,

73 (2d Cir. 2023). “Therefore, to survive a motion to dismiss based on lack of personal

jurisdiction and insufficient service of process” pursuant to Rule 12(b)(5), Fed. R. Civ. P., “the

plaintiff must demonstrate that she adequately served the defendants.” Id. In doing so, the

“plaintiff bears the burden of establishing that service was sufficient.” See Khan v. Khan, 360 F.

App’x 202, 203 (2d Cir. 2010) (citing Burda Media, Inc. v. Viertel, 417 F.3d 292, 298 (2d Cir.

2005)). However, a defendant waives their right to contest service of process if the defense is not

raised by a responsive pleading, or, if by “submission through conduct,” the defendant “leads the

plaintiff to believe that service was adequate.” Fed. R. Civ. P. 12(h)(1); Buon, 65 F.4th at 74.

When deciding a Rule 12(b)(5) motion, the Court considers whether the “plaintiff has

complied with Rule 4, Fed. R. Civ. P., which governs the content, issuance and service of a

summons,” and “must look to matters outside the complaint to determine whether it has

jurisdiction.” Grp. One Ltd. V. GTE GmbH, 523 F. Supp. 3d, 323, 332 (E.D.N.Y. 2021). The

Court also considers the timeliness of service, which is governed by Rule 4(m). Rule

4(m) provides, in relevant part:

If a defendant is not served within 90 days after the complaint is filed, the court—on

motion or on its own after notice to the plaintiff—must dismiss the action without

prejudice against that defendant or order that service be made within a specified time. But

if the plaintiff shows good cause for the failure, the court must extend the time for service

for an appropriate period.

Fed. R. Civ. P. 4.

III. Rule 12(b)(6)

To avoid dismissal under Rule 12(b)(6), a complaint must plead sufficient facts to “state

a claim to relief that is plausible on its face.” Cardinal Motors, Inc. v. H&H Sports Prot. USA

Inc., 128 F.4th 112, 120 (2d Cir. 2025) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). In

determining whether a claim is sufficiently plausible to withstand dismissal under Rule 12(b)(6),

a court “accept[s] all factual allegations in the complaint as true” and “draw[s] all reasonable

inferences in the plaintiff’s favor.” Herrera v. Comme des Garcons, Ltd., 84 F.4th 110, 113 (2d

Cir. 2023). Nevertheless, a court is “not required to credit conclusory allegations or legal

conclusions couched as factual allegations.” Melendez v. Sirius XM Radio, Inc., 50 F.4th 294,

307 (2d Cir. 2022). “A claim has facial plausibility when the plaintiff pleads factual content that

allows the court to draw the reasonable inference that the defendant is liable for the misconduct

alleged.” Iqbal, 556 U.S. at 678. The plausibility standard requires “more than a sheer possibility

that a defendant has acted unlawfully.” Id.; accord Schiebel v. Schoharie Cent. Sch. Dist., 120

F.4th 1082, 1106 (2d Cir. 2024). While “detailed factual allegations” are not required, “[a]

pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of

action will not do.” Iqbal, 556 U.S. at 678. A complaint fails to state a claim “if it tenders naked

assertions devoid of further factual enhancement.” Id.

DISCUSSION

Viola’s claims against Defendants suffer from numerous defects, which require dismissal

of all claims under various rules of the Federal Rules of Civil Procedure. As a threshold matter,

Viola lacks standing to pursue declaratory or injunctive relief for any claims because the

Amended Complaint does not allege that she continues to sustain an injury from Section 2.61 or

that any injury from the vaccine mandate is certainly impending in light of the repeal of Section

2.61 in 2023 and the fact that there is no longer a COVID-19 pandemic.

Furthermore, all claims are barred under the doctrine of Eleventh Amendment sovereign

immunity. Neither SBUH nor SUNY have waived their sovereign immunity for the state or

federal claims at issue in this action, and therefore both Defendants are immune from Viola’s

claims here. Similarly, the claims against King and Gomes in their individual capacities are

barred under the Eleventh Amendment because, in light of the repeal of Section 2.61 and the

recession of the COVID-19 pandemic, the Amended Complaint fails to allege any ongoing

violations of federal law, which renders the Ex parte Young exception to sovereign immunity

inapplicable to the claims against King and Gomes. For the same reasons, Viola’s claims

challenging the constitutionality of Section 2.61 are moot because there is no ongoing violation

of federal law that can be meaningfully remedied through an order of prospective relief.

Furthermore, contrary to Viola’s contentions, the voluntary cessation exception to mootness does

not apply here because there is no reasonable expectation that Section 2.61 will be reenacted, and

the revocation of Section 2.61 has completely eradicated the effects of the alleged violation.

Accordingly, the Amended Complaint must be dismissed without prejudice for lack of subject

matter jurisdiction under Rule 12(b)(1).

In addition, the Amended Complaint’s claims against King, Gomes, and SUNY are

dismissed without prejudice due to Viola’s failure serve summonses upon them, which in turn

deprives this Court of personal jurisdiction over these Defendants. Indeed, nearly one year has

passed since Viola filed her Amended Complaint but she has nonetheless failed to effectuate

service, despite the fact that Defendants have raised her failure to serve King, Gomes, and SUNY

as a basis for dismissal in their Motion. Accordingly, the claims against King, Gomes, and

SUNY are also dismissed under Rule 12(b)(2) and (5).

However, even if all claims in the Amended Complaint were not barred for the

aforementioned reasons, the Amended Complaint nonetheless fails to plausibly state any federal

claim for relief, and I decline to exercise supplemental jurisdiction over the NYSRHL claims

under 28 U.S.C. § 1367(c). With respect to the Fourteenth Amendment substantive due process

claims, it is well established that the U.S. Constitution does not recognize any fundamental right

to refuse vaccination requirements imposed during a public health emergency. Accordingly,

rational basis review applies to these claims, and under Second Circuit precedent, Section 2.61

survives such review because it is reasonably related to a legitimate state interest. Moreover, the

Supremacy Clause claims must be dismissed for failure to state a claim because the Supremacy

Clause does not support a private right of action. Finally, the free exercise claims are implausible

because the Amended Complaint alleges in a conclusory fashion, without any supporting factual

allegations, that Section 2.61 was not neutral or generally applicable. Accordingly, to the extent

that any federal claims survive the Rule 12(b)(1), (2), and (5) analysis, all federal claims are

dismissed with prejudice under Rule 12(b)(6) for failure to state a claim, and I decline to exercise

supplemental jurisdiction over any NYSHRL claims.

I. Article III Standing

In a footnote, Defendants briefly argue that Viola does not have Article III standing with

respect to her federal claims because her alleged injuries are not traceable to, or redressable by,

Defendants because they did not “create[] the mandate in § 2.61, and none have ever had the

power to revoke or ignore it.” (Mem. at 12 n.4 (citing Spokeo, Inc. v. Robins, 136 S. Ct. 1540,

1547 (2016).) Viola did not oppose or otherwise address Defendants’ argument. (See Opp.)

Courts have “an independent duty to consider” questions of subject-matter

jurisdiction. Doe v. McDonald, 128 F.4th 379, 384 (2d Cir. 2025); Williams v. Harry’s Nurses

Registry, Inc., No. 24-34, 2025 WL 842041, at *2 (2d Cir. Mar. 18, 2025) (summary order)

(citing Durant, Nichols, Houston, Hodgson & Cortese-Costa P.C. v. Dupont, 565 F.3d 56, 62 (2d

Cir. 2009)). Accordingly, I consider whether Viola has standing with respect to her federal

claims.

Article III of the Constitution “limits the federal judicial power to deciding ‘Cases’ and

‘Controversies.’” Soule v. Conn. Ass’n of Schs., Inc., 90 F.4th 34, 45 (2d Cir. 2023) (citing U.S.

Const. art. III § 2). A case or controversy only exists when the plaintiff has “standing” to sue

because they have “a personal stake in the outcome of the litigation.” Id. (citing United States v.

Texas, 599 U.S. 670 (2023)). In order to establish Article III standing, a plaintiff must show: “(1)

that they suffered an injury in fact, (2) that the injury is fairly traceable to Defendants’

challenged conduct, and (3) that the injury is likely to be redressed by a favorable judicial

decision.” Soule, 90 F.4th at 45 (citing Spokeo, Inc., 578 U.S. at 338). A “plaintiff must

demonstrate standing for each claim that they press and for each form of relief that they

seek.” Id. (citing TransUnion LLC v. Ramirez, 594 U.S. 413 (2021)).

The Amended Complaint alleges facts to support Viola’s standing to seek damages for

claims under the NYSHRL, the First and Fourteenth Amendments, and the Supremacy Clause.

The Amended Complaint alleges that Viola has suffered an injury in fact that is traceable to

Defendants’ alleged conduct—the termination of Viola’s employment at SBUH on December 6,

2021. Am. Compl. ¶ 77; see Soule, 90 F.4th at 45. If Viola were to prevail on her claims, the

requested damages would likely redress her injury by providing compensation for alleged harms

and, with respect to punitive damages, by deterring future alleged unlawful conduct. See id. at

47 (“To satisfy the redressability element of Article III standing, a plaintiff must show that it is

‘likely, as opposed to merely speculative, that the alleged injury will be redressed by a favorable

decision.’”) (citing Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992)).

Defendants’ argument that Viola’s injuries are not traceable to them because they did not

have power to revoke or ignore Section 2.61’s mandate is unpersuasive. (Mem. at 12 n.4.) While

it is true that Defendants could not unilaterally revoke or ignore Section 2.61, they nonetheless

had discretion to afford Viola a medical exemption or religious accommodation from Section

2.61’s requirements. See We The Patriots USA, Inc., 17 F.4th at 274 (2d Cir. 2021) (“Section

2.61 exempts from the vaccination requirement ‘personnel’ for whom ‘immunization with

COVID-19 vaccine is detrimental to health based upon a pre-existing health condition’ as more

specifically defined and limited by the Rule.”); id. at 292 (“Section 2.61 . . . does not prevent

employees from seeking a religious accommodation allowing them to continue working

consistent with the Rule, while avoiding the vaccination requirement.” (emphasis in original)).

The Amended Complaint fails, however, to allege any facts that support Viola’s standing

to seek injunctive or declaratory relief for any claims. Most significantly, it does not allege that

Viola continues to sustain any injury, or that an injury is “certainly impending” due to

Defendants’ alleged unlawful conduct. See Soule, 90 F.4th at 46 (“[A]n injury is actual or

imminent if it has actually happened or is certainly impending.”). The Amended Complaint does

not allege that, at any point after the termination of her employment, Viola asked Defendants for

the opportunity to rejoin SBUH or applied to work at SBUH in any capacity. Moreover, Section

2.61 has been repealed, 45 N.Y. Reg. 22 (Oct. 4, 2023), and the Amended Complaint does not

allege that Defendants maintain the same or a similar COVID-19 vaccination requirement for

employees in the role Viola performed prior to her termination or that Defendants would deny a

request for medical exemption or religious accommodation from any such policy.

This case is therefore similar to Dorce, 2 F.4th 82, where the Second Circuit affirmed the

dismissal of injunctive and declaratory relief claims due to plaintiffs’ failure to allege ongoing or

future harm that would support Article III standing. Id. at 88. In Dorce, the plaintiffs challenged

a local law that authorized New York City to transfer ownership of foreclosed properties “free of

charge to designated partners, who develop and manage the properties” and sought a declaration

that the local law was unconstitutional. Id. at 87–88, 95. Although the plaintiffs alleged that

properties they had owned had been foreclosed upon in rem and transferred to a third party

pursuant to this local law, they failed to “demonstrate[] that they will be subject to future harm”

because they “could not show that they owned property that was likely to be transferred in the

future” under the law. Id. at 91, 93, 95. Thus, while the plaintiffs had alleged past harms, the

Second Circuit held that they lacked standing to seek injunctive or declaratory relief. Id. at 88.

Like the Dorce plaintiffs, Viola alleges she was injured in the past by Defendants’

challenged conduct—specifically, the Defendants’ decision to terminate her employment—but

has not alleged any current injury or facts supporting the conclusion that she faces a substantial

risk of future injury or that any future injury is certainly impending. See id. at 95 (quoting Susan

B. Anthony List, 573 U.S. 149, 158 (2014)) (“Such an allegation of future injury will be

sufficient only if the threatened injury is certainly impending, or there is a substantial risk that

the harm will occur.”).

The Amended Complaint alleges that due to Defendants’ alleged disability

discrimination, failure to accommodate, and retaliation under the NYSHRL, Viola “suffered

mental anguish and humiliation . . . .” (Am. Compl. ¶ 80; see also id. ¶¶ 87, 90.) However,

“[t]he emotional consequences of a prior act” are “simply . . . not a sufficient basis for [equitable

relief] absent a real and immediate threat of future injury by the defendant.” City of Los Angeles

v. Lyons, 461 U.S. 95, 107 (1983).

The Amended Complaint also alleges that due to Defendants’ violation of the Supremacy

Clause and Viola’s free exercise rights, Viola “suffered lost employment, wages, reputational

damages, and emotional distress, entitling her to . . . injunctive relief (reinstatement,

expungement) against [Gomes and King].” (Am. Compl. ¶ 132; see also id. ¶ 123.) But because

the Amended Complaint does not allege that Viola has sought reemployment with Defendants,

any allegation that she is entitled to future income, compensation, and benefits is purely

speculative and does not support standing to seek injunctive or declaratory relief.

Finally, Viola seeks a declaration that Defendants’ past conduct was unlawful “in

violation of the NYSHRL,” that Defendants “aided and abetted religious discrimination in

violation of the NYSHRL and violated [Viola’s] Constitutional Rights provided by the First

Amendment and the Supremacy Clause,” and that Defendants “violated [Viola’s] liberties

protected by the Fourteenth Amendment[.]” (Am. Compl. at 23–24.) However, declaratory relief

is prospective in nature, and Article III standing to seek such relief must be based on allegations

of current or future harm. See, e.g., Guan v. Mayorkas, 530 F. Supp. 3d 237, 255 (E.D.N.Y.

2021). Because the Amended Complaint fails to plausibly allege that Viola continues to be

injured, that there is a substantial risk that future injury will occur, or that she faces threatened

injury that is certainly impending, it fails to show that Viola has Article III standing to sue for

declaratory relief on any of her claims. See Dorce, 2 F.4th at 95.

Viola’s declaratory and injunctive relief claims are therefore dismissed without prejudice

for lack of subject matter jurisdiction under Rule 12(b)(1). Cent. States Se. & Sw. Areas Health

& Welfare Fund v. Merck-Medco Managed Care, LLC, 433 F.3d 191, 198 (2d Cir. 2005); Plante

v. Dake, 621 F. App’x 67, 69 (2d Cir. 2015); see also Greene v. Northwell Health Inc., No. 23-

cv-4846, 2024 WL 4287875, at *7–9 (E.D.N.Y. Sept. 25, 2024) (dismissing claims challenging

the Section 2.61 vaccine mandate for lack of subject matter jurisdiction where the complaint

failed to plausibly allege current injury or a substantial risk of future injury, or that plaintiff faced

threatened injury that is certainly impending due to repeal of the vaccine mandate and recession

of COVID-19 pandemic); Brown v. S. Shore Univ. Hosp., 762 F. Supp. 3d 191, 202–04

(E.D.N.Y. 2025) (same).

II. Dismissal Under Rule 4(m) and 12(b)(5)

Defendants SUNY, Gomes, and King move to dismiss the Amended Complaint for

insufficient service of process under Rule 4, Fed. R. Civ. P., on the basis that summonses were

neither issued nor served upon them.2 (Mem. at 6.) In opposition, Viola does not contest that

SUNY, Gomes, and King had not yet been served with summonses. (Opp. at 13.) Rather, Viola

argues that when she filed her opposition on June 13, 2025, she was still within the time in which

service could be timely accomplished and that she “intends to serve Defendants within the next

two weeks.” (Id.) While that was true on June 13, 2025, as of June 8, 2026, summonses still have

not been served upon SUNY, Gomes, and King. As such, the dismissal of SUNY, Gomes, and

King from this action is appropriate under Rules 4(m), 12(b)(5), and 12(b)(2).3

2 While Defendants argue that the Amended Complaint must be dismissed for insufficient

service of process under Rule 4, Rule 12(b)(5) governs a motion to dismiss a pleading for

insufficient service of process.

3 Although Defendants do not invoke Rule 12(b)(2), Fed. R. Civ. P., which permits a motion to

dismiss for lack of personal jurisdiction, they also seek to dismiss the Amended Complaint with

respect to SUNY, Gomes, and King for failure to obtain personal jurisdiction. (Mem. at 7.)

Defendants’ arguments on this point mirror their arguments for dismissal under Rule 4—namely,

that SUNY, Gomes, and King were never served. A court cannot exercise personal jurisdiction

over a defendant unless “the procedural requirement of service of summons [is] satisfied.” Buon,

65 F.4th at 73. Therefore, although a Rule 12(b)(5) motion is the “proper procedural vehicle for

challenging the mode of delivery or the lack of delivery of the summons and complaint,” a

dismissal for lack of service of process is also a dismissal for a lack of personal jurisdiction

under Rule 12(b)(2). Tevdorashvili v. Qatar Airway, No. 24-cv-1379, 2024 WL 4955260, at *2

(E.D.N.Y. Dec. 3, 2024) (“Though Defendant frames his motion as a motion to dismiss for lack

of personal jurisdiction pursuant to 12(b)(2), it can also be classified as a motion to dismiss

under Rule 12(b)(5).”).

Accordingly, I also dismiss the Amended Complaint without prejudice with respect to SUNY,

Gomes, and King for lack of personal jurisdiction under Rule 12(b)(2). See Smith v. United

States, 554 F. App’x 30, 32 (2d Cir. 2013) (“[A] dismissal for want of personal jurisdiction is

without prejudice.”) (summary order); see also Vanek v. Samsung EMS Co., No. 23-cv-3127,

2024 WL 4894344, at *2 (S.D.N.Y. Nov. 26, 2024) (“[A] dismissal based on lack of proper

service or lack of personal jurisdiction is a dismissal without prejudice.”).

Rule 4 sets forth the procedural requirements governing the contents, issuance, and

proper service of summons. It provides:

If a defendant is not served within 90 days after the complaint is filed, the court—on

motion or on its own after notice to the plaintiff—must dismiss the action without

prejudice against that defendant or order that service be made within a specified time.

But if the plaintiff shows good cause for the failure, the court must extend the time for

service for an appropriate period.

Fed. R. Civ. P. 4 (emphasis added).

Here, Viola filed the Amended Complaint on April 16, 2025, which added SUNY,

Gomes, and King as Defendants in this action. Under Rule 4(m), Viola had 90 days—until July

15, 2025—to serve the summonses on the newly added defendants. By the time Defendants filed

their motion to dismiss the Amended Complaint for insufficient service of process on April 25,

2025, Viola still had 81 days to serve the summonses, and she accordingly argued that dismissal

for failure to serve SUNY, Gomes, and King was premature. (Opp. at 13.) On June 11, 2025,

Viola filed proposed summons for SUNY, Gomes, and King to be issued by the Clerk of Court

for the Eastern District of New York. (ECF Nos. 18, 19, 20.) However, on June 13, 2025, the

Clerk of Court issued an electronic order noting that the proposed summonses were not issued

because they were improperly filled out and ordered Viola to correct and resubmit them using

the proper forms. (Elec. Order, Jun. 13, 2025.) Nearly one year has passed since then, but Viola

still has not filed corrected summonses with the Clerk of Court or otherwise served them, much

less shown that she met the July 15, 2025 service deadline. Viola has also neglected to request an

extension of time to complete service or to otherwise show “good cause for [her] failure” to

serve SUNY, Gomes, and King, which would have prompted this Court to “extend the time for

service for an appropriate period.” Fed. R. Civ. P. 4(m). In so doing, Viola has exhibited “a

complete disregard for the requirement that a summons be served.” Osrecovery, Inc. v. One Grp.

Int’l, Inc., 234 F.R.D. 59, 61 (S.D.N.Y. 2005).

Accordingly, the motion to dismiss the Amended Complaint by SUNY, King, and Gomes

for failure to properly effectuate service is granted under Rules 4(m) and 12(b)(5), and the claims

against them are dismissed without prejudice. See Fed. R. Civ. P. 4(m) (“If a defendant is not

served within 90 days after the complaint is filed, the court must dismiss the action without

prejudice against that defendant or order that service be made within a specified time.”); see also

In re S. Afr. Apartheid Litig., 643 F. Supp. 2d 423, 431–32 (S.D.N.Y. 2009) (“Absent perfected

service, a court lacks jurisdiction to dismiss an action with prejudice; therefore dismissal

pursuant to Rule 12(b)(5) must be without prejudice.”).

III. Eleventh Amendment Sovereign Immunity

The Eleventh Amendment provides that “[t]he Judicial power of the United States shall

not be construed to extend to any suit in law or equity, commenced or prosecuted against one of

the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.”

U.S. Const. Amend. XI. Though not set forth in the text, the Eleventh Amendment also bars

“suits in federal court against a state brought by that state’s own citizens.” Mary Jo C. v. New

York State & Loc. Ret. Sys., 707 F.3d 144, 151 (2d Cir. 2013). It also applies not just to lawsuits

filed in federal court against states themselves, but also to “certain actions against state agents

and instrumentalities . . . .” Leitner v. Westchester Cmty. Coll., 779 F.3d 130, 134 (2d Cir. 2015)

(citing Regents of the Univ. of Cal. v. Doe, 519 U.S. 425, 429 (1997)); see also Mary Jo C., 707

F.3d at 151–52 (same). An entity “asserting Eleventh Amendment immunity . . . bear[s] the

burden of demonstrating entitlement.” Leitner, 779 F.3d at 134.

Under the sovereign immunity doctrine, as a general rule, entities shielded from suit

“may not be sued in federal court unless they have waived their Eleventh Amendment immunity,

or unless Congress has abrogate[d] the states’ Eleventh Amendment immunity when acting

pursuant to its authority under Section 5 of the Fourteenth Amendment.” Gollomp v. Spitzer, 568

F.3d 355, 366 (2d Cir. 2009). The Eleventh Amendment thus “generally bars suits in federal

court” against “non-consenting states.” Leitner, 779 F.3d at 134. Eleventh Amendment sovereign

immunity applies not just to lawsuits filed in federal court against states themselves, but also to

state officials acting in their official capacities. See Chris H. v. New York, 740 Fed. App’x 740,

741 (2d Cir. 2018) (“The Eleventh Amendment bars damages actions in federal court against a

state and against state officials acting in their official capacities, unless the state waives

sovereign immunity or Congress abrogates it.”) (summary order). This bar applies to suits in

federal court against a state and its agents, “regardless of the nature of the relief sought.” 74

Pinehurst LLC v. New York, 59 F.4th 557, 570 (2d Cir. 2023), cert. denied, No. 22-1130, 2024

WL 674658 (U.S. Feb. 20, 2024); Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 120

(1984) (“[I]f a § 1983 action alleging a constitutional claim is brought directly against a State,

the Eleventh Amendment bars a federal court from granting any relief on that claim.”); see also

Siani v. State Univ. of New York at Farmingdale, 7 F. Supp. 3d. 304, 316 (E.D.N.Y. 2014)

(“[The] Eleventh Amendment bars all suits against states in federal court based on state law,

regardless of the relief sought.”). Accordingly, absent a waiver by the state or abrogation of

sovereign immunity by Congress, states and their agents and instrumentalities are immune from

actions in federal court seeking monetary damages or injunctive relief, McGinty v. New York,

251 F.3d 84, 91 (2d Cir. 2001), as well as declaratory relief, Ashmore v. Prus, 510 F. App’x 47,

48 (2d Cir. 2013) (citing Pennhurst, 465 U.S. at 100–01); see also Manners v. New York, 175

F.3d 1008, 1999 WL 96136 at *1 (2d Cir. 1999) (summary order).

Notwithstanding the Eleventh Amendment bar against actions in federal court against

states and their agents and instrumentalities, the Supreme Court has established “a well-known

exception to this rule” in Ex parte Young, 209 U.S. 123 (1908). Under Ex parte Young, a plaintiff

may bring a claim for “prospective relief against an individual acting in his official

capacity . . . to end an ongoing violation of a federal law.” T.W. v. New York State Bd. of L.

Examiners, 110 F.4th 71, 91 (2d Cir. 2024); see also W. Mohegan Tribe & Nation v. Orange

Cnty., 395 F.3d 18, 21 (2d Cir. 2004) (“[Ex parte Young] allows a suit for injunctive or

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

law.”). The Ex parte Young exception applies to a claim against a state official when “the

complaint (1) alleges an ongoing violation of federal law; and (2) seeks relief properly

characterized as prospective.” T.W., 110 F.4th at 91. It does not extend to suits against state

agencies. See Deadwiley v. New York State Off. of Child. & Fam. Servs., 97 F. Supp. 3d 110, 116

(E.D.N.Y. 2015) (holding that sovereign immunity barred a suit seeking injunctive relief against

a New York state agency).

However, if a claim against a state official seeks “declaratory relief that would have the

same effect as an award of damages against the state,” the Ex parte Young exception does not

apply. Williams v. Marinelli, 987 F.3d 188, 197 (2d Cir. 2021) (citing Green v. Mansour, 474

U.S. 64, 73 (1985)); see also T.W., 110 F.4th at 93 (“[A] declaratory judgment is not available

when the result would be a partial ‘end run’ around the Eleventh Amendment’s bar on

retrospective awards of monetary relief.”).

Applying these standards, Viola’s claims against SUNY and SBUH are barred by the

Eleventh Amendment. Furthermore, her claims against Gomes and King are also barred by the

Eleventh Amendment and do not fall under the Ex Parte Young exception because the Amended

Complaint fails to allege an ongoing violation of federal law.

A. Claims Against SUNY and SBUH

Defendants argue that all claims against SUNY and SBUH, whether the NYSHRL claims

or the federal constitutional claims, are barred under the Eleventh Amendment because these

state entities are immune from suit and have not waived sovereign immunity in this action.

(Mem. at 8–11.) Viola did not address or otherwise oppose this argument. (See Opp.) In so

doing, she abandoned all claims against SBUH and SUNY. See Farag v. XYZ Two Way Radio

Serv., Inc., No. 22-cv-1795, 2023 WL 2770219, at *2 (2d Cir. Apr. 4, 2023) (“In a ‘counseled’

case, ‘a court may, when appropriate, infer from a party’s partial opposition that relevant claims

or defenses that are not defended have been abandoned.’”) (quoting Jackson v. Fed. Express, 766

F.3d 189, 198 (2d Cir. 2014)); AJ Energy LLC v. Woori Bank, No. 18-cv-3735, 2019 WL

4688629, at *7 (S.D.N.Y. Sept. 26, 2019) (“It is well established that a district court may, and

generally will, deem a claim abandoned when a counseled plaintiff fails to respond to a

defendant’s arguments that the claim should be dismissed.” (cleaned up) (citing cases)), aff’d,

829 F. App’x 533 (2d Cir. 2020) (summary order).

Even if Viola had not abandoned these claims, it is well-established that both SUNY and

SBUH are immune from claims in federal court under the Eleventh Amendment. See Bamba v.

Fenton, 758 F. App’x 8, 12 (2d Cir. 2018) (“Stony Brook and SBUH . . . are part of the State

University of New York (‘SUNY’) system, which is an integral part of the New York State

government; thus, when either is sued, New York State is the true party for Eleventh

Amendment purposes and sovereign immunity applies.”); Gasparik v. Stony Brook Univ., 296 F.

App’x 151, 152 (2d Cir. 2008) ( “[T]he District Court properly concluded that it lacked subject

matter jurisdiction because SUNY has not consented to be sued in a federal forum and so is

immune from suit pursuant to the Eleventh Amendment.”); Dube v. State Univ. of New York, 900

F.2d 587, 594 (2d Cir. 1990) (“For Eleventh Amendment purposes, SUNY is an integral part of

the government of the State [of New York] and when it is sued the State is the real party.”);

Fariello v. Rodriguez, 148 F.R.D. 670, 681 (E.D.N.Y. 1993), aff’d, 22 F.3d 1090 (2d Cir. 1994)

(holding that “the Stony Brook University Hospital is an entity of the State of New York

and . . . under the provisions of the Eleventh Amendment to the Constitution, this action is barred

in federal court”).

Furthermore, “42 U.S.C. § 1983 does not constitute an exercise of [Congress’s authority

to abrogate sovereign immunity]” and thus federal constitutional claims brought under Section

1983 are “proscribed by the Eleventh Amendment” absent the state’s consent to be sued. Dube,

900 F.2d at 594. Similarly, “Congress has not abrogated, and New York has not waived,

its sovereign immunity from claims brought under . . . NYSHRL[.]” Iwelu v. New York State Off.

of Mental Health, No. 22-3096, 2024 WL 2175938, at *2 (2d Cir. May 15, 2024); see also Baez

v. New York, 629 F. App’x 116, 118 (2d Cir. 2015) (“In addition, New York State has not

consented to be sued in federal court under the NYSHRL.”).

Here, neither SUNY nor SBUH has waived its sovereign immunity defense in this action,

as both Defendants invoked sovereign immunity in the Motion to Dismiss. (Mem. at 8–11.)

Accordingly, all claims against SUNY and SBUH are barred by the Eleventh Amendment and

dismissed without prejudice under Rule 12(b)(1). See Makarova v. United States, 201 F.3d 110

(2d Cir. 2000) (“The doctrine of sovereign immunity is jurisdictional in nature.”); Morales v.

New York, 22 F. Supp. 3d 256, 268 (S.D.N.Y. 2014) (“A claim that is barred by a state’s

sovereign immunity must be dismissed pursuant to the Eleventh Amendment for lack of subject

matter jurisdiction.”); Karupaiyan v. New York, No. 23-1257, 2024 WL 2174272, at *2 (2d Cir.

May 15, 2024), cert. denied, 145 S. Ct. 271 (2024) (“When subject matter jurisdiction is lacking,

the district court lacks the power to adjudicate the merits of the case, and accordingly Article III

deprives federal courts of the power to dismiss the case with prejudice.”).

B. Claims Against Gomes and King

With respect to the claims against Gomes and King in their official capacities for

declaratory and injunctive relief, Defendants argue that these claims are also barred because

Viola complains only of “past conduct, and has no need for prospective injunctive relief to

address any ongoing violation of federal law.” (Mem. at 10.) Viola contends that notwithstanding

the termination of her employment, she is seeking prospective relief for ongoing violations of her

Fourteenth Amendment rights by seeking an injunction requiring her reinstatement. (Opp. at 14–

15.)

The Amended Complaint fails to allege any ongoing violations of federal law, and

accordingly, the claims against Gomes and King do not fall under Ex parte Young and are thus

barred by the Eleventh Amendment. The Ex parte Young exception only applies to claims

against state officials when “the complaint (1) alleges an ongoing violation of federal law; and

(2) seeks relief properly characterized as prospective.” T.W., 110 F.4th at 91 (emphasis added).

Even if a plaintiff “alleges ongoing harm, injunctive relief under Ex parte Young must seek to

stop ongoing violations of federal law.” Id. at 94 (emphasis in original). Even when “the relief

[sought by plaintiff] is prospective,” declaratory and injunctive relief under Ex parte Young is

unavailable when it “is aimed exclusively at a past violation” and “does not seek to remedy an

ongoing violation of federal law.” Id. at 95 (emphasis in original).

Viola’s constitutional claims under Section 1983 are premised on the enforcement of

Section 2.61. (See, e.g. Am. Compl. ¶ 21 (“Plaintiff is also seeking Declaratory Relief under

Article VI, Clause II of the United States [Constitution] that the New York State Covid-19

Vaccination Mandate violates the Supremacy Clause.”); id. ¶ 22 (“Plaintiff is also alleging that

The New York State Covid-19 Vaccine Mandate violates the liberty protected by the Fourteenth

Amendment to the Constitution[.]”); id. ¶ 125 (“Defendants . . . violated Plaintiff’s First

Amendment right to free exercise of religion and the Supremacy Clause (U.S. Const. art. VI, cl.

2) by enforcing the [Vaccine] Mandate in conflict with Title VII and the Federal CMS

Mandate.”).)

However, Section 2.61 was repealed on October 4, 2023—more than one year before

Viola filed this litigation on December 6, 2024. See Does 1-2 v. Hochul, No. 22-2858, 2024 WL

5182675, at *2 (2d Cir. Dec. 20, 2024) (citing 45 N.Y. Reg. 22 (Oct. 4, 2023)). As such, the

Amended Complaint fails to allege an ongoing violation of federal law that could be remedied

through declaratory or injunctive relief. See Wilson v. Mid-Hudson Forensic Psychiatric Ctr.,

No. 23-cv-8911, 2025 WL 1295655, at *9 (S.D.N.Y. May 5, 2025) (“[T]he Ex parte Young

exception is inapplicable” where plaintiff did not “allege any ‘ongoing violation of federal law’

that the relief she seeks would remedy—particularly in light of the fact that the OMH [Vaccine]

Mandate is no longer enforced.”); In re NYAHSA Litig., 318 F. Supp. 2d 30, 37 (N.D.N.Y. 2004),

aff’d sub nom. New York Ass’n of Homes & Servs. for the Aging, Inc. v. DeBuono, 444 F.3d 147

(2d Cir. 2006) (finding that “plaintiffs could obtain no meaningful prospective relief because any

violation of the amendment would not be ongoing” where the amendment at issue was repealed);

cf. Walker v. New York State Dep’t of Health, 788 F. Supp. 3d 427 (E.D.N.Y. 2025) (Choudhury,

J.) (finding that plaintiffs could bring a claim under Ex parte Young where a challenged

regulation “remains in force and continues to deprive Plaintiffs” of their rights (emphasis

added)).

Accordingly, because Section 2.61 has been repealed, the Amended Complaint fails to

allege an ongoing violation of federal law, and Viola’s constitutional claims against Gomes and

King in their official capacity for declaratory and injunctive relief fail. Further, the Amended

Complaint’s NYSHRL claims against Gomes and King in their official capacities for declaratory

and injunctive relief are also barred under sovereign immunity because the Ex parte Young

exception “is inapplicable in a suit against state officials on the basis of state law.” Shibeshi v.

City Univ. of New York, 531 F. App’x 135 (2d Cir. 2013), as corrected (Sept. 3, 2013) (quoting

Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 106 (1984)).

As a result, all claims under the NYSHRL and under Section 1983 and various provisions

of the U.S. Constitution alleged in the Amended Complaint against all Defendants are barred

under the Eleventh Amendment. These claims are therefore dismissed without prejudice.

See Karupaiyan, 2024 WL 2174272, at *2.

IV. Mootness

Defendants also argue that Viola’s constitutional claims are moot, in addition to being

barred under the Eleventh Amendment, because they challenge the constitutionality of Section

2.61, which has been repealed. (Mem. at 11–12.) In opposition, Viola contends that the case is

not moot because she was “never reinstated [to her job] and her constitutional rights remain

violated.” (Opp. at 14.) As a result, Viola argues she “has a legally cognizable interest in the

outcome of this action.” Although sparsely briefed, Viola also asserts that while “voluntary

cessation can moot a case,” it must be “reasonably clear that the challenged practice will not

happen again” and the “effects of the alleged violation must be permanently reversed.” (Opp. at

14 (citing Friends of the Earth, Inc. v. Laidlaw Env’t Servs. (TOC), Inc., 528 U.S. 167, 189

(2000) and Los Angeles County v. Davis, 440 U.S. 625, 631 (1979).)

“While standing doctrine focuses on whether the party invoking jurisdiction had the

requisite stake in the outcome when the suit was filed . . . mootness doctrine ensures that a

litigant’s interest in the outcome continues to exist throughout the life of the lawsuit.” Conn.

Citizens Def. League, Inc. v. Lamont, 6 F.4th 439, 444 (2d Cir. 2021). The question of mootness

concerns whether, “as a result of changed circumstances, a case that presented an actual

redressable injury at the time it was filed ceases to involve such an injury.” Id. A case

is moot when the issues presented are no longer live or the parties lack a legally cognizable

interest in the outcome.” Antonyuk v. James, 120 F.4th 941, 1014 (2d Cir. 2024). “It remains live

if a court can fashion some form of meaningful relief to award the complaining

party.” Id. (emphasis in original). The inquiry into whether the court “can fashion some form of

meaningful relief” is “more complicated in cases involving states or state agents as

defendants . . . since the Eleventh Amendment bars the award of money damages against state

officials in their official capacities.” Exxon Mobil Corp. v. Healey, 28 F.4th 383, 392 (2d Cir.

2022). Accordingly, for an action against states or state agents, for a case to remain live “there

must be a possible effectual remedy for the violations it alleges, and the remedy must be

prospective relief that would address an ongoing violation of federal law.” Id.

In light of the repeal of Section 2.61, Viola’s constitutional claims are moot because there

is no ongoing violation of federal law that I can meaningfully remedy through an order of

prospective relief, and the Eleventh Amendment bars an award of monetary damages. See supra

Discussion § II (A)–(B); Exxon Mobil Corp, 28 F.4th at 392. Indeed, under factual circumstances

almost identical to those alleged in this action, in which a plaintiff brought claims for injunctive

relief with respect to Section 2.61, Chief Judge Brodie of this District reached the same

conclusion: “Because of the repeal of Section 2.61, Plaintiffs’ claims for injunctive relief against

State Defendants are moot since the Court can no longer fashion any form of meaningful

injunctive relief.” Haczynska v. Mount Sinai Health Sys., Inc., 738 F. Supp. 3d 300, 314–15

(E.D.N.Y. 2024); see also id. at 315 (“[T]he Court cannot grant Plaintiffs the requested

injunctive relief with respect to Section 2.61 because the alleged violation of federal law is no

longer ongoing.”).

Contrary to Viola’s contentions, the voluntary cessation exception to the mootness

doctrine is inapplicable here. “Generally, the ‘voluntary cessation of allegedly illegal conduct’ is

not enough to render a case moot.” Exxon Mobil Corp., 28 F.4th at 395 (quoting United States v.

W. T. Grant Co., 345 U.S. 629, 632 (1953)). “Otherwise, a defendant might strategically alter its

conduct in order to prevent or undo a ruling adverse to its interest.” Id. Nonetheless, where

“‘there is no reasonable expectation’ of the alleged violation’s recurrence, and interim events

have ‘completely and irrevocably eradicated the effects of the alleged violation,’” courts may

find that voluntary cessation of the challenged conduct may render a case moot. Id. (quoting

County of Los Angeles, 440 U.S. at 631). “When a defendant claims that its voluntary cessation

or compliance moots a case, the defendant ‘bears the formidable burden of showing that it is

absolutely clear the allegedly wrongful behavior could not reasonably be expected to

recur.’” Already, LLC v. Nike, Inc., 568 U.S. 85, 91 (2013) (quoting Friends of the Earth, Inc. v.

Laidlaw Env’t Servs. (TOC), Inc., 528 U.S. 167, 190 (2000)).

Here, Defendants rely on the Second Circuit’s decision in Does 1-2 v. Hochul, which

considered whether there is a reasonable expectation that a vaccination mandate similar to

Section 2.61 could be reinstated and held that no such reasonable expectation exists. See Does 1-

2 v. Hochul, No. 22-2858, 2024 WL 5182675, at *2 (2d Cir. Dec. 20, 2024) (“While the State’s

repeal of the vaccination mandate certainly constitutes a voluntary cessation, this decision

corresponded with the changed conditions surrounding the COVID-19 pandemic . . . With

nothing to suggest otherwise, we cannot conclude there is a reasonable expectation that the

alleged violation will recur.”); see also Abadi v. City of New York, No. 22-1560, 2023 WL

3295949, at *1 (2d Cir. May 8, 2023) (holding that “the voluntary cessation of the COVID-19

restrictions at issue” mooted injunctive and declaratory relief claims because the vaccine

mandate expired and “there is no evidence in the record that would support the conclusion that

the City is likely to reinstitute any such COVID-19 restrictions”); Marciano v. Adams, No. 22-

570, 2023 WL 3477119, at *2 (2d Cir. May 16, 2023) (“The voluntary cessation exception is

likewise inapplicable because ‘there is no reasonable expectation that the alleged violation will

recur’. . . .” (quoting Am. Freedom Def. Initiative v. Metro. Transp. Auth., 815 F.3d 105, 109 (2d

Cir. 2016)).

Moreover, the Second Circuit and district courts within the Second Circuit have also held

that “Defendants’ repeal of the vaccination mandate” set forth in Section 2.61 “has ‘completely

and irrevocably eradicated the effects of the alleged violation[.]’” Marciano, 2023 WL 3477119,

at *2 (quoting Am. Freedom Def. Initiative, 815 F.3d at 109); see also Tandian v. State Univ. of

New York, 698 F. Supp. 3d 425, 434 (N.D.N.Y. 2023) (“There is no doubt that Section 2.61’s

repeal . . . irrevocably eradicated the effects of the alleged violation, thus satisfying the second

prong of this traditional mootness analysis.”); Iosilevich v. City of New York, No. 21-cv-4717,

2022 WL 19272855, at *12 (E.D.N.Y. Aug. 10, 2022) (finding that the repeal of New York

City’s COVID-19 vaccine mandate “completely and irrevocably eradicated the effects of the

alleged violation”); cf. Dark Storm Indus. LLC v. Hochul, No. 20-2725, 2021 WL 4538640 (2d

Cir. Oct. 5, 2021) (reversing a district court holding that plaintiff’s claims against COVID-19

restrictions were not moot where governor rescinded them) (summary order).

Viola has not offered any evidence or arguments suggesting that there is any reasonable

expectation that the alleged constitutional violations resulting from Section 2.61’s COVID-19

vaccination mandate will recur. Furthermore, as the Second Circuit and other district courts have

held, the repeal of Section 2.61 has completely and irrevocably eradicated the effects of the

mandate in that healthcare workers are no longer required to be vaccinated against COVID-19.

See, e.g., Marciano, 2023 WL 3477119, at *2; Iosilevich, 2022 WL 19272855, at *12. As

explained above, the Amended Complaint does not allege that, at any point after the termination

of her employment, Viola asked Defendants for the opportunity to rejoin SBUH or applied to

work at SBUH in any capacity. Nor does she allege that Defendants continue to implement or

rely upon Section 2.61. See Am. Freedom Def. Initiative, 815 F.3d at 109 (recognizing that a

claim is moot where “the defendant’s conduct has been ‘sufficiently altered so as to present a

substantially different controversy from the one’ that existed when . . . suit was filed,” and

finding that standard satisfied with respect to a First Amendment claim against that MTA, which

shifted its reliance on an incitement provision to a provision on advertisements that are “political

in nature”). As such, she is no longer subject to Section 2.61’s requirements, and its effects have

been completely and irrevocably eradicated due to its repeal, the absence of any allegations

suggesting that SBUH continues to implement Section 2.61, and because Viola no longer works

at SBUH. See Granite State Outdoor Advert., Inc. v. Town of Orange, Connecticut, 303 F.3d

450, 451–52 (2d Cir. 2002) (holding that the effects of allegedly unconstitutional regulations

were completely and irrevocably eradicated when the regulations were repealed because there

was “no reason to believe that any unconstitutional restrictions are currently in place”).

Accordingly, Viola’s constitutional claims are moot. See Evans v. N.Y.C. Dep’t of Educ.,

No. 22-cv-7901, 2023 WL 8034449, at *4 (S.D.N.Y. Nov. 20, 2023) (finding moot a claim

against the vaccine mandate after mandate was lifted); Rivera v. City of New York, No. 22-CV-

616, 2023 WL 6385771, at *8–10 (E.D.N.Y. Sept. 30, 2023) (same); Haczynska, 738 F. Supp. 3d

at 314–16 (same). The constitutional claims are therefore dismissed without prejudice under

Rule 12(b)(1). See Doyle v. Midland Credit Mgmt., Inc., 722 F.3d 78, 80 (2d Cir. 2013) (holding

that “when a case becomes moot, the federal courts lack subject matter jurisdiction over the

action” and it should be dismissed under Rule 12(b)(1)); Conn. Citizens Def. League, Inc. v.

Thody, No. 23-724, 2024 WL 177707, at *2 (2d Cir. Jan. 17, 2024) (“Dismissal under Rule

12(b)(1) is also proper when a case becomes moot[.]”) (summary order).

V. Failure to State a Claim

In the alternative, even if Viola’s claims were not dismissed without prejudice for the

reasons already addressed—i.e. standing, the failure to serve summonses upon King, Gomes, and

SUNY, Eleventh Amendment sovereign immunity, and mootness—her Fourteenth Amendment

substantive due process claims, Supremacy Clause claims, and First Amendment claims must be

dismissed with prejudice under Rule 12(b)(6), Fed. R. Civ. P.

A. Fourteenth Amendment – Substantive Due Process

Defendants argue that the Amended Complaint fails to allege substantive due process

claims because vaccine mandates imposed for the public interest, including Section 2.61, do not

infringe upon any fundamental right, and Viola was never compelled to take the COVID-19

vaccine against her will. (Mem. at 13; Reply at 6.) Rather, according to Defendants, Viola was—

and still is—free to refuse the vaccine. (Reply at 6.) On this basis, Defendants argue that Viola’s

substantive due process claims have been “repeatedly dismissed by the courts” and require

dismissal. (Id. at 17 (citing Goe v. Zucker, 43 F.4th 19, 31 (2d Cir. 2022); We The Patriots USA,

Inc., 17 F.4th at 293; Andre-Rodney v. Hochul, 618 F. Supp. 3d 72, 81–85 (N.D.N.Y. 2022)).).

Viola argues that Section 2.61 infringed upon her fundamental right to be free from

unwanted medical treatment—not her right to oppose a mandatory vaccine. (Opp. at 15–16.) Her

argument relies on the assumption that the COVID-19 vaccine is not actually a vaccine but a

“treatment” for COVID because it does not provide “sterilizing immunity . . . against infection

and transmission” and only reduces the severity of the virus in infected patients. (Id. at 15.) Viola

argues that the line of cases beginning with Jacobson v. Commonwealth of Massachusetts, 197

U.S. 11 (1905), which held there is no fundamental right that would render unconstitutional

vaccine mandates during a public health emergency, are all premised on the notion that vaccines

prevent infection and transmission rates of diseases, rather than simply reduce the symptoms

experienced by infected people. (Opp. at 17.)

“[T]he touchstone of due process is protection of the individual against arbitrary action of

government.” Goe, 43 F.4th at 30 (quoting Cnty. of Sacramento v. Lewis, 523 U.S. 833,

845 (1998)). To determine whether a government regulation infringes on the right to substantive

due process, the court must first “determine whether the asserted right is fundamental.” Id.

“Rights are fundamental when they are implicit in the concept of ordered liberty, or deeply

rooted in this Nation’s history and tradition.” Id. “When the right infringed is fundamental,” the

court applies strict scrutiny, and “the governmental regulation must be narrowly tailored to serve

a compelling state interest.” Id. When a “claimed right is not fundamental,” the court

applies rational basis review, and the “governmental regulation need only be reasonably related

to a legitimate state objective.” Id.

It is well-established that “the Constitution embodies no fundamental right that in and of

itself would render vaccine requirements imposed in the public interest, in the face of a public

health emergency, unconstitutional.” We The People USA, Inc., 17 F.4th at 293; see also

Jacobson, 197 U.S. at 25–31 (holding that a Massachusetts law requiring small pox vaccination

as necessary for public health “cannot be affirmed to be, beyond question, in palpable conflict

with the Constitution”); Phillips v. City of New York, 775 F.3d 538, 542 (2d Cir. 2015) (holding

that a substantive due process claim against to New York’s mandatory vaccination requirement

“is foreclosed” by Jacobson, 197 U.S. 11); Bellatoni v. Lamont, No. 23-656, 2023 WL 8889516,

at *1 (2d Cir. Dec. 26, 2023) (“We have never held that, in the face of a public health

emergency, the Constitution forbids vaccine mandates.”) Further, Section 2.61 did not compel

anyone to get vaccinated against COVID-19; instead, it required individuals who sought to

continue employment at certain covered healthcare entities to be vaccinated against the

coronavirus. See We The Patriots USA, Inc., 17 F.4th 266, 293–94 (2d Cir. 2021) (“Although

[the plaintiffs] have a hard choice to make, they do have a choice. Vaccination is a condition of

employment in the healthcare field; the State is not forcibly vaccinating healthcare workers.”).

Viola’s argument that COVID-19 vaccines should be considered a “medical treatment”

rather than as vaccines because they do not entirely prevent the transmission of the coronavirus

is unpersuasive. Viola fails to provide any authority supporting her contention that in order to

qualify as a “vaccine” an intervention must provide “sterilizing immunity . . . against infection

and transmission” rather than reducing the severity of the virus in infected patients. (Opp. at 15.)

Moreover, the Second Circuit has made clear that “weighing scientific evidence and the

effectiveness of vaccines is the role of state policymakers” not private litigants who object to the

vaccine. Bellatoni, 2023 WL 8889516, at *1; see also Phillips, 775 F.3d at 542 (2d Cir.

2015) (“Plaintiffs argue that a growing body of scientific evidence demonstrates that vaccines

cause more harm to society than good, but as Jacobson [v. Massachusetts, 197 U.S. 11 (1905),]

made clear, that is a determination for the legislature, not the individual objectors.”

(citing Jacobson, 197 U.S. at 37–38)). Accordingly, courts—including this one—have no basis

to decide whether the COVID-19 vaccine is better understood to be “medical treatment” as

opposed to a vaccine, as Viola suggests. (Opp. at 16.)

Additionally, Viola’s contention that the Jacobson line of cases is premised on the

understanding that vaccines must prevent disease rather than mitigate the effects of a disease is

unsupported by Jacobson itself. Jacobson, 197 U.S. at 34 (“The common belief, however, is that

[the smallpox vaccine] has a decided tendency to prevent the spread of this fearful disease, and

to render it less dangerous to those who contract it.”) (emphasis added). Viola’s reliance on

Cruzan by Cruzan v. Director, Missouri Dep’t of Health, 497 U.S. 261 (1990), for the notion that

there is a fundamental right to refuse unwanted medical treatment is also misplaced. In Cruzan,

the court affirmed Jacobson’s holding that “an individual’s liberty interest in declining an

unwanted smallpox vaccine” was outweighed by “the State’s interest in preventing disease.” 497

U.S. 261, 278 (1990). Accordingly, Viola has failed to identify any fundamental liberty interest

on which Section 2.61 infringes.

Because Viola has failed to show that Section 2.61 infringes on any fundamental liberty

interest, the propriety of Section 2.61 is subject to rational basis review. Goe, 43 F.4th at 30.

Viola alleges that “the Vaccination Mandate has no real or substantial relation to public health or

is beyond all question, a plain, palpable invasion of rights secured by the fundamental law as to

[Viola] with natural immunity.” (Am. Compl. ¶ 111.) Her assertion that Section 2.61 “has no real

substantial relation to public health” is based on allegations that the iteration of COVID-19

vaccines available at that time were ineffective in preventing or mitigating the effects of the

“Delta variant of COVID.” (Id. ¶¶ 98–100.)

Defendants rely upon We The Patriots USA, Inc., Goe v. Zucker, and Andre-Rodney v.

Hochul to argue that the Section 2.61’s vaccine mandate for healthcare workers is reasonably

related to a legitimate state objective. (Mem. at 13; Reply at 6–7.) In all three cases, the courts

found, either on a request for preliminary relief or on the merits, that vaccine mandates did not

run afoul of the Fourteenth Amendment’s substantive due process protections. See We The

Patriots USA, Inc, 17 F.4th at 293–94 (holding that plaintiffs were not “likely to succeed on the

merits” of their claim that Section 2.61 violates the right to substantive due process because “this

Court and the Supreme Court have consistently recognized that the Constitution embodies no

fundamental right that in and of itself would render vaccine requirements imposed in the public

interest, in the face of a public health emergency, unconstitutional”); Goe, 43 F.4th at 32

(holding that “there clearly is a legitimate state objective” for “protecting communities from

serious, vaccine-preventable diseases through immunization”); Andre-Rodney, 618 F. Supp. 3d at

(N.D.N.Y. 2022) (finding that “courts in this Circuit and around the county have concluded that

vaccination requirements such as the one imposed here pass muster under rational basis review”

and that plaintiffs “failed to allege that the Vaccine Mandate is not ‘reasonably related’ to

stemming the spread of COVID-19”). In light of this authority and considering Viola’s

conclusory assertions regarding the efficacy of COVID-19 vaccines, the Amended Complaint

fails to plausibly allege that Section 2.61 is not reasonably related to a legitimate state objective

as required to state substantive due process claims.

B. The Supremacy Clause

Defendants argue for dismissal of the Supremacy Clause claims on the basis that the

Supremacy Clause does not create an independent cause of action. (Mem. at 14.) In the

alternative, Defendants argue that the Supremacy Clause claims are without merit because the

federal regulation on which Viola relies—86 Fed. R. 61555 at 61572 (“Federal Exemption”)—

only preempts state exemptions from COVID-19 vaccination requirements that are broader than

federal exemptions, not exemptions that are narrower, like Section 2.61. (Id. (citing Federal

Exemption (“[T]his [mandate] preempts the applicability of any State or local law providing for

exemptions to the extent such law provides broader exemptions than provided for by Federal law

and are inconsistent with this [mandate].”).)

Viola did not oppose Defendants’ Supremacy Clause arguments. (See Opp.) In so doing,

she has abandoned her Supremacy Clause claims. See Farag, 2023 WL 2770219, at *2; AJ

Energy LLC, 2019 WL 4688629, at *7. Nevertheless, even if Viola had not abandoned these

claims, they are without merit. As a preliminary matter, Defendants correctly point out that the

Supremacy Clause does not supply an independent cause of action. See We The Patriots USA,

Inc., 17 F.4th at 291 n.32 (“Although . . . Plaintiffs style their preemption claim as a challenge

brought pursuant to the Supremacy Clause, the Supreme Court has held that the Supremacy

Clause does not create an independent cause of action.”); Armstrong v. Exceptional Child Ctr.,

Inc., 575 U.S. 320, 324–25 (2015) (“[T]he Supremacy Clause is not the source of any federal

rights, and certainly does not create a cause of action. It instructs courts what to do when state

and federal law clash, but is silent regarding who may enforce federal laws in court, and in what

circumstances they may do so.”) (internal quotation marks and citations omitted).

Further, Viola alleges that Section 2.61 conflicts with the Federal Exemption because

Section 2.61 does not provide exemptions on the basis of sincerely held religious beliefs,

whereas the Federal Exemption does. See Am. Compl. ¶¶ 66–70; Federal Exemption

(“Accordingly, we require that providers and suppliers included in this [mandate] establish and

implement a process by which staff may request an exemption from COVID–19 vaccination

requirements based on an applicable Federal law” including “Title VII.”) However, the Second

Circuit has squarely rejected this argument. See We The Patriots USA, Inc., 17 F.4th at 292

(“Because Section 2.61’s text does not foreclose all opportunity for Plaintiffs to secure a

reasonable accommodation under Title VII, the Rule does not conflict with federal law.”).

Accordingly, the Amended Complaint fails to plausibly allege any Supremacy Clause

claims.

C. First Amendment Free Exercise Claims

Defendants argue that Viola’s claims against Section 2.61 under the Free Exercise Clause

of the First Amendment have been squarely rejected by courts within the Second Circuit. (Mem.

at 15 (citing Conde v. Mid Hudson Reg’l Hosp. Med. Ctr., 2024 U.S. Dist. LEXIS 8658, at *7

(S.D.N.Y. Jan. 12, 2024); St. Hillaire v. Montefiore Med. Ctr., 2024 U.S. Dist. LEXIS 7640, at

*7 (S.D.N.Y. Jan. 16, 2024); Anderson v. Hochul, 2024 U.S. Dist. LEXIS 6153, at *13

(S.D.N.Y. Jan. 8, 2024).) Viola did not oppose this argument raised in Defendants’ moving brief.

(See Opp.) In failing to do so, she has abandoned her free exercise claims. See Farag, 2023 WL

2770219, at *2; AJ Energy LLC, 2019 WL 4688629, at *7.

The First Amendment provides that “Congress shall make no law respecting an

establishment of religion, or prohibiting the free exercise thereof.” U.S. Const. Amend. I. The

Free Exercise Clause specifically protects both “an individual’s private right to religious belief,

as well as the performance of (or abstention from) physical acts that constitute the free exercise

of religion.” Kane v. De Blasio, 19 F.4th 152, 163–64 (2d Cir. 2021). “This protection, however,

‘does not relieve an individual of the obligation to comply with a valid and neutral law of general

applicability.’” Id. (quoting Emp. Div. v. Smith, 494 U.S. 872, 879 (1990)). Further, “neutral and

generally applicable laws are only subject to rational-basis review.” Id.

In We The Patriots USA, Inc., the Second Circuit held that “Section 2.61 is facially

neutral because it does not single out employees who decline the vaccination on religious

grounds.” 17 F.4th at 281. Accordingly, “[i]t is now well-settled in [the Second] Circuit

that Section 2.61 is both neutral and generally applicable.” Conde v. Mid Hudson Reg’l Hosp.

Med. Ctr., No. 22-cv-3085, 2024 WL 168282 (S.D.N.Y. Jan. 12, 2024); see also Algarin v.

N.Y.C. Health + Hosps. Corp., 678 F. Supp. 3d 497, 517 (S.D.N.Y. 2023), aff’d sub nom.

Algarin v. New York City Health & Hosps. Corp., No. 23-1063, 2024 WL 1107481 (2d Cir. Mar.

14, 2024) (“Section 2.61 does not single out religious employees – it applies equally to all

employees who can be vaccinated safely, regardless of their religious beliefs or practices,

whether they have political objections to the vaccine, or question its efficacy or safety, or any of

the many other reasons that people choose not to get vaccinated.”).

Here, the Amended Complaint does not allege any facts to support Viola’s assertion that

Section 2.61 is not neutral. (See Am. Compl.) It alleges in a conclusory fashion that “[n]othing

about the [vaccine] policies was generally applicable, and Defendants exercised enormous

arbitrary and discretionary powers to make exceptions that allowed exposure for secular reasons

but not religious.” (Am. Compl. ¶ 130.) This allegation is entirely unsupported by either the text

of Section 2.61 or the remaining allegations of the Amended Complaint. Such a conclusory and

unsupported allegation fails to plausibly show that Section 2.61 is not generally applicable.

Because Viola has not met her burden to plausibly allege that Section 2.61 is not neutral and

generally applicable, I analyze Section 2.61 under rational basis review.

As illustrated above, supra Discussion § V(A), Section 2.61 is reasonably related to a

legitimate state interest in “protecting communities from serious, vaccine-preventable diseases

through immunization . . . .” Goe, 43 F.4th at 32; see also Andre-Rodney, 618 F. Supp. 3d at

(N.D.N.Y. 2022) (“[C]ourts in this Circuit and around the county have concluded that

vaccination requirements such as the one imposed here pass muster under rational basis review,”

and that plaintiffs “failed to allege that the Vaccine Mandate is not ‘reasonably related’ to

stemming the spread of COVID-19.”) Accordingly, Viola fails to plausibly allege free exercise

claims, and these claims are dismissed with prejudice under Rule 12(b)(6).

D. NYSHRL Claims

Defendants argue that all NYSHRL claims are also barred under the Eleventh

Amendment and therefore “are subject to dismissal in their entirety.” (Mem. at 11.) Viola did not

address or otherwise oppose this argument and has therefore abandoned these claims. See Opp.;

see also Farag, 2023 WL 2770219, at *2. However, even if Viola had not abandoned these

claims, I would decline to exercise supplemental jurisdiction over them.

A district court “may decline to exercise supplemental jurisdiction over a claim [where it]

has dismissed all claims over which it has original jurisdiction . . . .” 28 U.S.C. § 1367(c)(3). “In

the usual case in which all federal-law claims are eliminated before trial, the balance of factors

will point toward declining to exercise jurisdiction over the remaining state-law

claims.” Chinniah v. FERC, 62 F.4th 700, 703 (2d Cir. 2023).

Here, all federal claims are barred under the Eleventh Amendment and, in the alternative,

are dismissed for failure to state a claim. See supra Discussion §§ III–V(C). Viola argues that the

Court may exercise supplemental jurisdiction over the NYSHRL claims under 28 U.S.C.

§ 1367(a) but has not alleged that the Court has original diversity jurisdiction over these claims

under 28 U.S.C. § 1332(a). (See Am. Compl. ¶¶ 31–33.) Accordingly, as this case is in the early

stages of litigation, I decline to exercise supplemental jurisdiction over the NYSHRL claims. See

Klein & Co. Futures, Inc. v. Bd. of Trade of City of New York, 464 F.3d 255, 262 (2d Cir. 2006)

(“It is well settled that where, as here, the federal claims are eliminated in the early stages of

litigation, courts should generally decline to exercise pendent jurisdiction over remaining state

law claims.”); see also Tang v. Grossman, No. 22-464, 2023 WL 2229366 (2d Cir. Feb. 27,

2023) (same) (summary order); Haczynska, 2024 WL 3178639, at *14 (declining to exercise

supplemental jurisdiction over NYSHRL claims after dismissing plaintiff’s federal claims due to

failure to comply with hospital’s vaccination requirement and collecting similar cases).

VI. Leave to Amend

Viola has not sought leave to amend her claims. Nevertheless, I have carefully considered

this issue and deny leave to amend.

A district court may deny leave to amend when an “amendment would be futile because

the problem with the claim ‘is substantive . . . [and] better pleading will not cure it.’” Reynolds v.

City of Mount Vernon, No. 14-cv-1481, 2015 WL 1514894, at *5 (S.D.N.Y. Apr. 1, 2015)

(quoting Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000) (alteration in original)). Rules 15

and 16 of the Federal Rules of Civil Procedure govern a plaintiff’s ability to amend the

complaint, and “when read together, set forth three standards for amending pleadings that depend

on when the amendment is sought.” Sacerdote v. N.Y. Univ., 9 F.4th 95, 115 (2d Cir. 2021).

First, Rule 15(a)(1) permits “a plaintiff [to] freely amend her pleadings . . . as of right

without court permission” twenty-one days after a complaint is served or twenty-one days after

service of a responsive pleading or motion under Rule 12(b), (e), or (f). Id. Second, after the time

to amend as of right has passed—“either upon expiration of a specified period [of time] in a

scheduling order or upon expiration of the default period set forth in Rule 15(a)(1)(A)”—a

plaintiff seeking to amend a complaint must either request leave from the court or obtain the

opposing party’s written consent. Id.; Fed. R. Civ. P. 15(a)(2). Rule 15(a)(2) sets forth a lenient

standard under which “[t]he court should freely give leave [to amend] when justice so requires.”

Fed. R. Civ. P. 15(a)(2). “Unless there is a showing of bad faith, undue delay, futility or undue

prejudice to the non-moving parties, the district court should grant leave to amend.” Adlife Mktg.

& Commc’ns Co. v. Best Yet Mkt., Inc., No. 17-cv-2978, 2018 WL 4568801, at *1 (E.D.N.Y.

Sept. 24, 2018) (citing Foman v. Davis, 371 U.S. 178, 182 (1962)). Third, Rule 15(a)(2)’s period

of “liberal” amendment ends upon expiration of the date set by the court as the deadline after

which no amendment will be permitted. Sacerdote, 9 F.4th at 115. At that point, Rule 16 also

applies, and a court must balance the “liberal” amendment standard of Rule 15 with Rule

16(b)(4)’s requirement that the plaintiff show “good cause” for an extension of the deadline to

amend. Fed. R. Civ. P. 16(b)(4); Holmes v. Grubman, 568 F.3d 329, 334–35 (2d Cir. 2009); see

also Pasternack v. Shrader, 863 F.3d 162, 174 n.10 (2d Cir. 2017) (plaintiff must satisfy both

Rules 15 and 16 to be permitted to amend after the deadline in the scheduling order has passed).

At this early stage of the action, the Court has not set a deadline after which no

amendment will be permitted. Accordingly, leave to amend is analyzed under Rule 15(a)(2), and

such leave must be denied only if there is a showing of bad faith, undue delay, futility or undue

prejudice to the non-moving parties. Adlife Mktg., 2018 WL 4568801, at *1 (citing Foman, 371

U.S. at 182); see also Loreley Fin. (Jersey) No. 3 Ltd. v. Wells Fargo Sec., LLC, 797 F.3d 160,

190 (2d Cir. 2015); Sacerdote, 9 F.4th at 115. Viola has already amended the Complaint once

and was able to review SBUH’s motion to dismiss the original Complaint prior to filing the

Amended Complaint. Thus, Viola already had an opportunity to address the pleading

deficiencies in the original Complaint, which SBUH had identified in its original motion to

dismiss. In fact, in a March 4, 2025 Order that granted Viola leave to amend the Complaint

following service of SBUH’s motion to dismiss that pleading, I warned Viola that “[i]t is

unlikely that Plaintiff shall have a further opportunity to amend.” (See Elec. Order, Mar. 4,

2025.) Nevertheless, as Defendants address, Viola made minimal changes to the Amended

Complaint as compared to the original Complaint.

Additionally, as set forth above, even a liberal reading of the Amended Complaint does

not give any indication that Viola can amend the pleading to cure any of the numerous identified

threshold deficiencies—lack of standing for prospective relief, mootness, Eleventh Amendment

sovereign immunity—or the failure to state any plausible federal claims. Accordingly, leave to

amend the Amended Complaint is denied under Rule 15(a)(2).

CONCLUSION

For the reasons set forth above, Defendants’ Motion to Dismiss the Amended Complaint

for lack of subject matter jurisdiction is granted, and the Amended Complaint is therefore

dismissed on the following grounds: (1) all claims for prospective relief are dismissed without

prejudice for lack of standing and as moot under Rule 12(b)(1); (2) all claims against all

Defendants are dismissed without prejudice under Rule 12(b)(1) as barred by Eleventh

Amendment sovereign immunity; and (3) all claims against SUNY, Gomes, and King are

dismissed without prejudice for insufficient service of process under Rule 12(b)(5) and lack of

personal jurisdiction under Rule 12(b)(2). In the alternative, all claims under 42 U.S.C. § 1983

for relief under the Fourteenth Amendment, First Amendment, and Supremacy Clause of the

U.S. Constitution are dismissed with prejudice under Rule 12(b)(6) for failure to state a claim.

Finally, I decline to exercise supplemental jurisdiction under 28 U.S.C. § 1367(a) over the state

law claims in this action, and such claims are therefore dismissed without prejudice under 28

U.S.C. § 1367(c). Accordingly, the Amended Complaint is dismissed in its entirety and without

leave to amend.

Dated: Central Islip, New York

June 9, 2026

/s/ Nusrat J. Choudhury

NUSRAT J. CHOUDHURY

United States District Judge