Application — The Roman Catholic Diocese of Brooklyn, New York, Applicant v. Andrew M. Cuomo, Governor of New York

Supreme Court briefNov 12, 2020

Ask Donna

What actually matters in this document.

Text

EXHIBIT A

(Ct. App. Dkt. No. 82)

Case 20-3590, Document 82, 11/09/2020, 2971105, Page1 of 9

E.D.N.Y. – Bklyn.

20-cv-4834

Matsumoto, J.

20-cv-4844

Garaufis, J.

United States Court of Appeals

FOR THE

SECOND CIRCUIT

_________________

At a stated term of the United States Court of Appeals for the Second

Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square,

in the City of New York, on the 9th day of November, two thousand twenty.

Present:

Raymond J. Lohier, Jr.,

Michael H. Park,

Circuit Judges,

Jed S. Rakoff, *

Judge.

Agudath Israel of America, Agudath Israel of Kew Garden Hills,

Agudath Israel of Madison, Agudath Israel of Bayswater, Rabbi

Yisroel Reisman, Rabbi Menachem Feifer, Steven Saphirstein,

Plaintiffs-Appellants,

20-3572

Andrew M. Cuomo, Governor of the State of New York, in his

official capacity,

Defendant-Appellee.

The Roman Catholic Diocese of Brooklyn, New York,

Plaintiff-Appellant,

20-3590

Governor Andrew M. Cuomo, in his official capacity,

Defendant-Appellee.

* Judge Jed S. Rakoff, of the United States District Court for the Southern District of New York,

sitting by designation.

Case 20-3590, Document 82, 11/09/2020, 2971105, Page2 of 9

These appeals, which are being heard in tandem, arise from the ongoing COVID-19 pandemic.

The pandemic has caused more than 25,000 deaths in New York State and more than 10,000 deaths

in Brooklyn and Queens alone. In response to a recent spike in cases concentrated in parts of

Brooklyn, Queens, and other areas, Governor Andrew Cuomo issued an executive order to limit

further spread of the virus in these COVID-19 “hotspots.”

The executive order directs the New York State Department of Health to identify yellow, orange,

and red “zones” based on the severity of outbreaks, and it imposes correspondingly severe

restrictions on activity within each zone. For example, the order provides that in “red zones,”

non-essential gatherings of any size must be cancelled, non-essential businesses must be closed,

schools must be closed for in-person instruction, restaurants cannot seat customers, and houses of

worship may hold services but are subject to a capacity limit of 25 percent of their maximum

occupancy or 10 people, whichever is fewer.

The Appellants—Agudath Israel of America, Agudath Israel of Kew Garden Hills, Agudath Israel

of Madison, Agudath Israel of Bayswater, Rabbi Yisroel Reisman, Rabbi Menachem Feifer,

Steven Saphirstein (collectively, “Agudath Israel”), and The Roman Catholic Diocese of

Brooklyn, New York (the “Diocese”)—each challenged the executive order as a violation of the

Free Exercise Clause of the First Amendment. In each case, the district court denied the

Appellants’ motion for a preliminary injunction against the enforcement of the order. The

Appellants now move for emergency injunctions pending appeal and to expedite their appeals,

after an applications Judge on our Court denied their requests for an administrative stay,

No. 20-3572, doc. 30; No. 20-3590, doc. 29.

Preliminarily, we conclude that Agudath Israel did not “move first in the district court for” an

order “granting an injunction while an appeal is pending” before filing with this Court its present

motion for an injunction pending appeal. Fed. R. App. P. 8(a)(1)(C). Instead, Appellant

moved for a preliminary injunction pending the district court’s final judgment. In its briefs and

at oral argument before this panel, moreover, Agudath Israel has not explained or otherwise

justified its failure to comply with the straightforward requirement of Rule 8(a). Agudath Israel

also has failed to demonstrate that “moving first in the district court would be impracticable,”

Fed. R. App. P. 8(a)(2)(A), or even futile, particularly in light of the fact that a full eleven days

elapsed after the district court’s ruling before Agudath Israel sought relief from this Court. We

deny Agudath Israel’s motion for these procedural reasons. See Hirschfeld v. Bd. of Elections in

N.Y., 984 F.2d 35, 38 (2d Cir. 1993).

We deny the Diocese’s motion for an injunction pending appeal—and would deny the motion

filed by Agudath Israel if it were properly before us—for the reasons that follow.

As an initial matter, an injunction is “an extraordinary remedy never awarded as of right.”

Winter v. Nat. Res. Def. Council, 555 U.S. 7, 24 (2008). To obtain an injunction from a district

court, movants generally bear the burden of showing that (1) they are likely to succeed on the

merits; (2) they are likely to suffer irreparable harm in the absence of preliminary relief; (3) the

balance of equities tips in their favor; and (4) an injunction is in the public interest. Id. at 20.

Case 20-3590, Document 82, 11/09/2020, 2971105, Page3 of 9

To obtain a stay of a district court’s order pending appeal, more is required, including a “strong

showing that [the movant] is likely to succeed on the merits.” New York v. U.S. Dep’t of

Homeland Sec., 974 F.3d 210, 214 (2d Cir. 2020). The motions at issue here seek a remedy still

more drastic than a stay: an injunction issued in the first instance by an appellate court. “Such a

request demands a significantly higher justification than a request for a stay because, unlike a

stay, an injunction does not simply suspend judicial alteration of the status quo but grants judicial

intervention that has been withheld by lower courts.” Respect Maine PAC v. McKee, 562 U.S.

996, 996 (2010) (quotation marks omitted).

“The Free Exercise Clause, which applies to the States under the Fourteenth Amendment, protects

religious observers against unequal treatment and against laws that impose special disabilities on

the basis of religious status.” Espinoza v. Mont. Dep’t of Revenue, 140 S. Ct. 2246, 2254 (2020)

(quotation marks omitted); see Cent. Rabbinical Cong. of U.S. & Canada v. N.Y.C. Dep’t of Health

& Mental Hygiene, 763 F.3d 183, 193 (2d Cir. 2014) (“[T]he Free Exercise Clause . . . protects

the performance of (or abstention from) physical acts that constitute the free exercise of religion:

assembling with others for a worship service, participating in sacramental use of bread and wine,

proselytizing, abstaining from certain foods or certain modes of transportation.”) (quotation marks

omitted)). But the Free Exercise Clause “does not relieve an individual of the obligation to

comply with a valid and neutral law of general applicability,” Emp’t Div., Dep’t of Human Res. v.

Smith, 494 U.S. 872, 879 (1990) (quotation marks omitted), “even if the law has the incidental

effect of burdening a particular religious practice,” Church of the Lukumi Babalu Aye, Inc. v. City

of Hialeah, 508 U.S. 520, 531 (1993).

“A law burdening religious conduct that is not both neutral and generally applicable, however, is

subject to strict scrutiny.” Cent. Rabbinical, 763 F.3d at 193 (citing Lukumi, 508 U.S. at 531–32).

“A law is not neutral if it is specifically directed at a religious practice.” Id. (cleaned up).

Similarly, a law is “not generally applicable if it is substantially underinclusive such that it

regulates religious conduct while failing to regulate secular conduct that is at least as harmful to

the legitimate government interests purportedly justifying it.” Id. at 197.

The Court fully understands the impact the executive order has had on houses of worship

throughout the affected zones. Nevertheless, the Appellants cannot clear the high bar necessary

to obtain an injunction pending appeal. The challenged executive order establishes zones based

on the severity of the COVID-19 outbreaks in different parts of New York. Within each zone,

the order subjects religious services to restrictions that are similar to or, indeed, less severe than

those imposed on comparable secular gatherings. See S. Bay United Pentecostal Church v.

Newsom, 140 S. Ct. 1613, 1613 (2020) (Roberts, C.J., concurring) (denying emergency injunctive

relief to houses of worship that were subject to similar or less severe restrictions than those

applicable to comparable secular gatherings); see also Elim Romanian Pentecostal Church v.

Pritzker, 962 F.3d 341, 342, 346–47 (7th Cir. 2020) (upholding an order that capped religious

gatherings at ten people where the most comparable activities—those “that occur in auditoriums,

such as concerts and movies”— had been banned completely); cf. Commack Self-Serv. Kosher

Meats, Inc. v. Hooker, 680 F.3d 194, 210–11 (2d Cir. 2011) (holding that a Kosher food labeling

act was a neutral and generally applicable law subject to rational basis review because it applied

Case 20-3590, Document 82, 11/09/2020, 2971105, Page4 of 9

to “food purchased by individuals of many different religious beliefs” and impacted consumers

who purchased kosher products “for reasons unrelated to religious observance”).

Thus, while it is true that the challenged order burdens the Appellants’ religious practices, the

order is not “substantially underinclusive” given its greater or equal impact on schools, restaurants,

and comparable secular public gatherings. Cf. No. 20-3590, doc. 20, Ex. L at 2 (Governor Cuomo

criticizing the order’s policy of “clos[ing] every school” as “a policy being cut by a hatchet,” not

“a scalpel”). To the contrary, the executive order “extend[s] well beyond isolated groups of

religious adherents” to “encompass[] both secular and religious conduct.” Cent. Rabbinical,

763 F.3d at 195.

In a dissent from this Court’s order, our colleague asserts that the executive order is subject to

strict scrutiny because it violates the minimum requirement of neutrality. The fact that theaters,

casinos, and gyms are more restricted than places of worship, the dissent reasons, “only highlights

the fact that the order is not neutral towards religion.” But this view is undermined by recent

precedent, which makes clear that COVID-19 restrictions that treat places of worship on a par with

or more favorably than comparable secular gatherings do not run afoul of the Free Exercise Clause.

See, e.g., S. Bay, 140 S. Ct. at 1613 (Roberts, C.J., concurring) (guidelines that “place[d]

restrictions on places of worship” less severe than those on comparable gatherings “appear

consistent with the Free Exercise Clause”); see also Elim, 962 F.3d at 347 (same).

The dissent attempts to distinguish South Bay as having been decided during the early stages of

the pandemic while local governments were actively shaping their response to changing facts on

the ground. But here, too, the executive order is a response to rapidly changing facts on the

ground. For several months, New York’s “limits and restrictions lessen[ed] and evolve[d] as the

curve continue[d] to flatten,” and the State’s “limits and restrictions . . . increase[d]” only when

“a review of the data indicate[d] a trend of increasing COVID-19 cases or spikes of cases in [the]

cluster areas” targeted by the challenged executive order. No. 20 Civ. 4834 (KAM) (E.D.N.Y.

2020), doc. 12 at 14, 18–19. In any event, South Bay did not draw a distinction between the

pandemic in its early or late stage. Its central relevant facts exist in New York in November

2020 just as they existed in California in May 2020: There is no vaccine or known cure for

COVID-19; the pandemic has killed hundreds of thousands of Americans; and “[b]ecause people

may be infected but asymptomatic, they may unwittingly infect others.” S. Bay, 140 S. Ct. at

1613 (Roberts, C.J., concurring).

Upon due consideration, and for the foregoing reasons, it is hereby ORDERED that the Appellants’

motions for injunctions pending appeal are DENIED. Among other infirmities in their arguments,

the Appellants have failed to meet the requisite standard for an injunction pending appeal. See

New York v. U.S. Dep’t of Homeland Sec., 974 F.3d at 214. It is further ORDERED that the

motion to expedite the appeals is GRANTED.

We address here only the Appellants’ motions for injunctions pending appeal and to expedite their

appeals, not their underlying appeals challenging the district courts’ refusals to provide preliminary

injunctive relief. With respect to the underlying appeals, the parties have agreed to the following

Case 20-3590, Document 82, 11/09/2020, 2971105, Page5 of 9

merits briefing schedule: Appellants’ briefs are due Tuesday, November 17, 2020; Appellee’s

brief is due Tuesday, December 8, 2020; Appellants’ reply briefs are due Monday, December 14,

2020, and the matter is to be calendared as early as the week of December 14, 2020.

Judge Park dissents from the denial of the motions for injunctions pending appeal.

FOR THE COURT:

Catherine O’Hagan Wolfe, Clerk of Court

Case 20-3590, Document 82, 11/09/2020, 2971105, Page6 of 9

Park, Circuit Judge, dissenting:

In response to the COVID-19 pandemic, the Governor of New York issued an executive

order imposing strict capacity limits on “houses of worship” in certain specified “zones.” Those

restrictions apply only to religious institutions; in the same zones, pet shops, liquor stores, and

other businesses the Governor considers “essential” remain open, free from any capacity limits.

By singling out “houses of worship” for unfavorable treatment, the executive order specifically

and intentionally burdens the free exercise of religion in violation of the First Amendment. I would

thus grant the motions for injunctive relief pending appeal.

Discrimination against religion is “odious to our Constitution.” Trinity Lutheran Church

of Columbia, Inc. v. Comer, 137 S. Ct. 2012, 2025 (2017). “Official action that targets religious

conduct for distinctive treatment” must thus satisfy “the most rigorous of scrutiny.” Church of the

Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 534, 546 (1993).

First, the executive order fails the “minimum requirement of neutrality” towards religion,

which means that a government policy may “not discriminate on its face.” Id. at 533. The order

authorizes the New York State Department of Health to designate “areas in the State that require

enhanced public health restrictions” as red, orange, or yellow zones. N.Y. Exec. Order No. 202.68.

In each zone, the order subjects only “houses of worship” to special “capacity limit[s]”: in red

zones, “25% of maximum occupancy or 10 people, whichever is fewer”; in orange zones, “the

lesser of 33% of maximum occupancy or 25 people”; and in yellow zones, “50% of . . . maximum

occupancy.” Id. But in the very same zones, numerous businesses deemed “essential” may operate

with no such restrictions. 1 This disparate treatment of religious and secular institutions is plainly

not neutral.

The Governor’s public statements confirm that he intended to target the free exercise of

religion. The day before issuing the order, the Governor said that if the “ultra-Orthodox [Jewish]

community” would not agree to enforce the rules, “then we’ll close the institutions down.” 2 See

Masterpiece Cakeshop, Ltd. v. Colo. C.R. Comm’n, 138 S. Ct. 1719, 1731 (2018) (factors relevant

to the assessment of neutrality include “the specific series of events leading to the enactment or

See Guidance for Determining Whether a Business Enterprise Is Subject to a Workforce

Reduction Under Recent Executive Orders, N.Y. State Dep’t of Econ. Dev. (updated Oct. 23, 2020),

https://esd.ny.gov/guidance-executive-order-2026; Guidance for Determining Whether a Business

Enterprise Is Subject to a Workforce Reduction Under Executive Order 202.68, N.Y. State Dep’t of Econ.

Dev. (updated Oct. 7, 2020), https://esd.ny.gov/ny-cluster-action-initiative-guidance; Hearing Tr. at 81–82,

No. 20-cv-4844 (E.D.N.Y. Oct. 15, 2020).

Governor Cuomo Updates New Yorkers on State’s Progress During COVID-19 Pandemic, Off.

of the Governor (Oct. 5, 2020), https://www.governor.ny.gov/news/video-audio-photos-rush-transcriptgovernor-cuomo-updates-new-yorkers-states-progress-during-1.

Case 20-3590, Document 82, 11/09/2020, 2971105, Page7 of 9

official policy in question” and “contemporaneous statements made by members of the

decisionmaking body”).

The Governor argues that the executive order should nonetheless be subject to only

rational-basis review because it treats houses of worship “more favorably” than “non-essential”

secular businesses, like theaters, casinos, and gyms. But this only highlights the fact that the order

is not neutral towards religion. Rational-basis review applies when a generally applicable policy

incidentally burdens religion, but a policy that expressly targets religion is subject to heightened

scrutiny. See Cent. Rabbinical Cong. of U.S. & Can. v. N.Y.C. Dep’t of Health & Mental Hygiene,

763 F.3d 183, 194 (2d Cir. 2014). Here, the executive order does not impose neutral public-health

guidelines, like requiring masks and distancing or limiting capacity by space or time. Instead, the

Governor has selected some businesses (such as news media, financial services, certain retail

stores, and construction) for favorable treatment, calling them “essential,” while imposing greater

restrictions on “non-essential” activities and religious worship. Such targeting of religion is

subject to strict scrutiny.

South Bay United Pentecostal Church v. Newsom, 140 S. Ct. 1613 (2020) (mem.), is not to

the contrary. Summary decisions of the Supreme Court are precedential only as to “the precise

issues presented and necessarily decided.” Mandel v. Bradley, 432 U.S. 173, 176 (1977).

Petitioners in South Bay sought a writ of injunction, which is granted only when “the legal rights

at issue are indisputably clear.” Id. at 1613 (Roberts, C.J., concurring) (citation omitted). Here,

Appellants seek injunctions pending appeal, for which they need to show, at most, a “‘substantial’

likelihood” of success on the merits. United for Peace & Just. v. City of New York, 323 F.3d 175,

178 (2d Cir. 2003). In addition, the motions before this Court arise from quite different

circumstances. South Bay was decided during the early stages of the pandemic, when local

governments were struggling to prevent the healthcare system from being overwhelmed and were

“actively shaping their response to changing facts on the ground.” 140 S. Ct. at 1614 (Roberts,

C.J., concurring). By contrast, the Governor’s stated concern here is maintaining localized

containment. In April, New York reported a seven-day average of nearly 1,000 deaths per day

from COVID-19. 3 Six months later, that average has not exceeded 20 for months. See id.

Finally, the Governor overstates the import of Jacobson v. Massachusetts, 197 U.S. 11

(1905), which upheld a mandatory vaccination law against a substantive due process challenge.

Jacobson was decided before the First Amendment was incorporated against the states, and it “did

not address the free exercise of religion.” Phillips v. City of New York, 775 F.3d 538, 543 (2d Cir.

2015). Indeed, the Court specifically noted that “even if based on the acknowledged police powers

of a state,” a public health measure “must always yield in case of conflict with . . . any right which

[the Constitution] gives or secures.” 197 U.S. at 25. Jacobson does not call for indefinite

See New York Covid Map and Test Count, N.Y. Times (updated Nov. 4, 2020),

https://www.nytimes.com/interactive/2020/us/new-york-coronavirus-cases.html.

Case 20-3590, Document 82, 11/09/2020, 2971105, Page8 of 9

deference to the political branches exercising extraordinary emergency powers, nor does it counsel

courts to abdicate their responsibility to review claims of constitutional violations.

Applying strict scrutiny, there is little doubt that the absolute capacity limits on houses of

worship are not “narrowly tailored.” Lukumi, 508 U.S. at 546. As the Governor himself admitted,

the executive order is “not a policy being written by a scalpel,” but rather is “a policy being cut by

a hatchet.” See Appellant’s Br., No. 20-3590, at 4.

First, the fixed capacity limits do not account in any way for the sizes of houses of worship

in red and orange zones. For example, two of the Diocese’s churches in red or orange zones as of

October 8, 2020 seat more than a thousand people. But the order nonetheless subjects them to the

same 10-person limit in red zones applicable to a church that seats 40 people. Such a blunderbuss

approach is plainly not the “least restrictive means” of achieving the State’s public safety goal.

Lukumi, 508 U.S. at 578.

The fixed capacity limits also bear little relation to the particular COVID-19 transmission

risks the Governor identifies with houses of worship, such as “singing or chanting” and mingling

before and after services. Churchgoers and daveners remain subject to generally applicable

distancing and mask requirements, so the additional capacity limits assume that worshippers—

unlike participants in “essential” activities—will not comply with such restrictions. The Governor

may not, however, “assume the worst when people go to worship but assume the best when people

go to work or go about the rest of their daily lives in permitted social settings.” Roberts v. Neace,

958 F.3d 409, 414 (6th Cir. 2020). Here, Appellants have made clear that they would follow any

generally applicable public-health restrictions.4

The remaining injunction factors also support granting the motions. Appellants presented

unrebutted evidence that the executive order will prevent their congregants from freely exercising

their religion. And “[t]he loss of First Amendment freedoms, even for minimal periods of time,

unquestionably constitutes irreparable injury.” N.Y. Progress & Prot. PAC v. Walsh, 733 F.3d

483, 486 (2d Cir. 2013) (quoting Elrod v. Burns, 427 U.S. 347, 373 (1976) (plurality op.)). 5

For example, the Diocese presented evidence that, even before the order, it had voluntarily

restricted attendance to 25% of building capacity and required masks during Mass; it has also “agreed to

accept potential further restrictions (such as eliminating congregant singing and choirs during Mass) as a

condition of injunctive relief.” Appellant’s Br., No. 20-3590, at 4.

The district court in the Agudath Israel case found that plaintiffs had not demonstrated irreparable

harm because “the Orthodox community has previously complied with the total lockdown” and they could

“continue to observe their religion” with “modifications.” Tr. of Proceedings at 66, No. 20-cv-04834

(E.D.N.Y. Oct. 9, 2020). This was error, in light of which plaintiffs reasonably believed that another motion

for injunction in the district court would be futile. See, e.g., Hernandez v. Comm’r, 490 U.S. 680, 699

Case 20-3590, Document 82, 11/09/2020, 2971105, Page9 of 9

Finally, the balance of equities and public interest favor Appellants. The question is not

whether the State may take generally applicable public-health measures, but whether it may

impose greater restrictions only on houses of worship. It may not.

I respectfully dissent from the denial of the motions for injunctions pending appeal.

CERTIFIED COPY ISSUED ON 11/09/2020

(1989) (“It is not within the judicial ken to question the centrality of particular beliefs or practices to a faith,

or the validity of particular litigants’ interpretations of those creeds.”).

EXHIBIT B

(Dist. Ct. Dkt. No. 36)

)URP

6HQW

6XEMHFW

HFIBERXQFHV#Q\HGXVFRXUWVJRY

7XHVGD\2FWREHU30

QRERG\#Q\HGXVFRXUWVJRY

$FWLYLW\LQ&DVHFY1**&/37KH5RPDQ&DWKROLF'LRFHVHRI%URRNO\Q1HZ

<RUNY&XRPR2UGHURQ0RWLRQIRU3UHOLPLQDU\,QMXQFWLRQ

>([WHUQDO(PDLO@

7KLVLVDQDXWRPDWLFHPDLOPHVVDJHJHQHUDWHGE\WKH&0(&)V\VWHP3OHDVH'21275(6321'WR

WKLVHPDLOEHFDXVHWKHPDLOER[LVXQDWWHQGHG

127(7238%/,&$&&(6686(56

-XGLFLDO&RQIHUHQFHRIWKH8QLWHG6WDWHVSROLF\SHUPLWV

DWWRUQH\VRIUHFRUGDQGSDUWLHVLQDFDVH LQFOXGLQJSURVHOLWLJDQWV WRUHFHLYHRQHIUHHHOHFWURQLFFRS\RI

DOOGRFXPHQWVILOHGHOHFWURQLFDOO\LIUHFHLSWLVUHTXLUHGE\ODZRUGLUHFWHGE\WKHILOHU3$&(5DFFHVVIHHV

DSSO\WRDOORWKHUXVHUV7RDYRLGODWHUFKDUJHVGRZQORDGDFRS\RIHDFKGRFXPHQWGXULQJWKLVILUVW

YLHZLQJ+RZHYHULIWKHUHIHUHQFHGGRFXPHQWLVDWUDQVFULSWWKHIUHHFRS\DQGSDJHOLPLWGRQRW

DSSO\

86'LVWULFW&RXUW

(DVWHUQ'LVWULFWRI1HZ<RUN

1RWLFHRI(OHFWURQLF)LOLQJ

7KHIROORZLQJWUDQVDFWLRQZDVHQWHUHGRQDW30('7DQGILOHGRQ

7KH5RPDQ&DWKROLF'LRFHVHRI%URRNO\Q1HZ<RUNY&XRPR

&DVH1DPH

FY1**&/3

&DVH1XPEHU

)LOHU

'RFXPHQW1XPEHU1RGRFXPHQWDWWDFKHG

'RFNHW7H[W

25'(5)RUWKHUHDVRQVVWDWHGLQWKHFRXUW V>@PHPRUDQGXPDQGRUGHUWKH>@PRWLRQIRU

DQLQMXQFWLRQSHQGLQJDSSHDOLV'(1,('2UGHUHGE\-XGJH1LFKRODV**DUDXILVRQ

/D]DUXV%HQMDPLQ

FY1**&/31RWLFHKDVEHHQHOHFWURQLFDOO\PDLOHGWR

5DQG\00DVWURUPDVWUR#JLEVRQGXQQFRPDDULDV#JLEVRQGXQQFRPPDR#JLEVRQGXQQFRP

6HWK-)DUEHUVHWKIDUEHU#DJQ\JRY6WHSKDQLH5RVHQEHUJ#DJQ\JRYRDJOLWD#DJQ\JRY

$NLYD6KDSLURDVKDSLUR#JLEVRQGXQQFRP$0DVWHUV#JLEVRQGXQQFRP

:LOOLDP-RKQ0RFFLDZPRFFLD#JLEVRQGXQQFRPDPDVWHUV#JLEVRQGXQQFRPGFRQUR\#JLEVRQGXQQFRP

ONROH#JLEVRQGXQQFRPVKDUWQHWW#JLEVRQGXQQFRP

/HH5RVV&UDLQOFUDLQ#JLEVRQGXQQFRPOURVVFUDLQ#JPDLOFRP

FY1**&/31RWLFHZLOOQRWEHHOHFWURQLFDOO\PDLOHGWR

EXHIBIT C

(Dist. Ct. Dkt. No. 32)

Case 1:20-cv-04844-NGG-CLP Document 32 Filed 10/16/20 Page 1 of 24 PageID #: 870

Case 1:20-cv-04844-NGG-CLP Document 32 Filed 10/16/20 Page 2 of 24 PageID #: 871

Case 1:20-cv-04844-NGG-CLP Document 32 Filed 10/16/20 Page 3 of 24 PageID #: 872

Case 1:20-cv-04844-NGG-CLP Document 32 Filed 10/16/20 Page 4 of 24 PageID #: 873

Case 1:20-cv-04844-NGG-CLP Document 32 Filed 10/16/20 Page 5 of 24 PageID #: 874

Case 1:20-cv-04844-NGG-CLP Document 32 Filed 10/16/20 Page 6 of 24 PageID #: 875

Case 1:20-cv-04844-NGG-CLP Document 32 Filed 10/16/20 Page 7 of 24 PageID #: 876

Case 1:20-cv-04844-NGG-CLP Document 32 Filed 10/16/20 Page 8 of 24 PageID #: 877

Case 1:20-cv-04844-NGG-CLP Document 32 Filed 10/16/20 Page 9 of 24 PageID #: 878

Case 1:20-cv-04844-NGG-CLP Document 32 Filed 10/16/20 Page 10 of 24 PageID #: 879

Case 1:20-cv-04844-NGG-CLP Document 32 Filed 10/16/20 Page 11 of 24 PageID #: 880

Case 1:20-cv-04844-NGG-CLP Document 32 Filed 10/16/20 Page 12 of 24 PageID #: 881

Case 1:20-cv-04844-NGG-CLP Document 32 Filed 10/16/20 Page 13 of 24 PageID #: 882

Case 1:20-cv-04844-NGG-CLP Document 32 Filed 10/16/20 Page 14 of 24 PageID #: 883

Case 1:20-cv-04844-NGG-CLP Document 32 Filed 10/16/20 Page 15 of 24 PageID #: 884

Case 1:20-cv-04844-NGG-CLP Document 32 Filed 10/16/20 Page 16 of 24 PageID #: 885

Case 1:20-cv-04844-NGG-CLP Document 32 Filed 10/16/20 Page 17 of 24 PageID #: 886

Case 1:20-cv-04844-NGG-CLP Document 32 Filed 10/16/20 Page 18 of 24 PageID #: 887

Case 1:20-cv-04844-NGG-CLP Document 32 Filed 10/16/20 Page 19 of 24 PageID #: 888

Case 1:20-cv-04844-NGG-CLP Document 32 Filed 10/16/20 Page 20 of 24 PageID #: 889

Case 1:20-cv-04844-NGG-CLP Document 32 Filed 10/16/20 Page 21 of 24 PageID #: 890

Case 1:20-cv-04844-NGG-CLP Document 32 Filed 10/16/20 Page 22 of 24 PageID #: 891

Case 1:20-cv-04844-NGG-CLP Document 32 Filed 10/16/20 Page 23 of 24 PageID #: 892

Case 1:20-cv-04844-NGG-CLP Document 32 Filed 10/16/20 Page 24 of 24 PageID #: 893

EXHIBIT D

(Dist. Ct. Dkt. No. 31-1)

Case 1:20-cv-04844-NGG-CLP Document 31-1 Filed 10/16/20 Page 1 of 127 PageID #: 743

EXHIBIT $

Case 1:20-cv-04844-NGG-CLP Document 31-1 Filed 10/16/20 Page 2 of 127 PageID #: 744

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

- - - - - - - - - - - - - - - X

: 20-CV-4844 (NGG)

: United States Courthouse

: Brooklyn, New York

: Thursday, October 15, 2020

: 2:00 p.m.

THE ROMAN CATHOLIC DIOCESE OF

BROOKLYN, NEW YORK,

Plaintiff,

-against-

GOVERNOR ANDREW M. CUOMO in

his official capacity,

Defendant.

- - - - - - - - - - - - - - - X

TRANSCRIPT OF CIVIL CAUSE FOR PRELIMINARY INJUNCTION HEARING

BEFORE THE HONORABLE NICHOLAS G. GARAUFIS

SENIOR UNITED STATES DISTRICT COURT JUDGE

A P P E A R A N C E S:

For the Plaintiff:

GIBSON, DUNN & CRUTCHER, LLP

200 Park Avenue, 48th Floor

New York, New York 10166

BY:RANDY MASTRO, ESQ.

WILLIAM J. MOCCIA, ESQ.

AKIVA SHAPIRO, ESQ.

For the Defendant:

LETITIA JAMES

ATTORNEY GENERAL OF THE STATE OF NEW YORK

28 Liberty Street

New York, New York 10005

BY:SETH FARBER, ESQ.

Court Reporter:

Linda A. Marino,

Official Court Reporter

E-mail: lindacsr@aol.com

Proceedings recorded by computerized stenography.

produced by Computer-aided Transcription.

LAM

OCR

RPR

Transcript

Case 1:20-cv-04844-NGG-CLP Document 31-1 Filed 10/16/20 Page 3 of 127 PageID #: 745

Proceedings

THE COURTROOM DEPUTY: This is a preliminary

injunction hearing.

Beginning with the Plaintiffs, please state your

appearances for the record.

Plaintiff?

MR. SHAPIRO:

Dunn.

This is Akiva Shapiro from Gibson

I believe Randy Mastro is on.

THE COURT:

Where are you?

THE COURTROOM DEPUTY:

Mr. Mastro, state your appearance.

He was just on.

Now we lost

him.

THE COURT:

Let's just wait a moment for him to

reappear.

(Pause in proceedings.)

MR. MASTRO:

Hi.

THE COURT:

Mr. Mastro, please state your

appearance.

MR. MASTRO:

Certainly, your Honor.

Randy Mastro,

of Gibson Dunn & Crutcher, along with my colleagues Akiva

Shapiro and William Moccia.

THE COURT:

Just for the sake of seeing all of your

head, could you adjust the camera?

otherwise.

MR. MASTRO:

It's disconcerting

My head is big enough already, your

Honor.

LAM

OCR

RPR

Case 1:20-cv-04844-NGG-CLP Document 31-1 Filed 10/16/20 Page 4 of 127 PageID #: 746

Proceedings

Is this better?

THE COURT:

helpful to make the adjustment.

MR. MASTRO:

Because I'm not that athletic.

It's somewhat better, yes.

I lost the video.

THE COURTROOM DEPUTY:

THE COURT:

I can hear you.

(Pause in proceedings.)

MR. FARBER:

Defendant.

problems.

Books are

There's a reason I went into the law:

I see you.

He lost his video.

Your Honor, this is Seth Farber for the

Unfortunately, I've been having connection

THE COURT:

FEMALE SPEAKER:

THE COURT:

Yes, we can.

MR. MASTRO:

Thank you.

Sorry about the delay.

THE COURT:

All right.

So, we have Mr. Mastro and

All right, Mr. Farber.

Can you see Randy now?

co-counsel and Mr. Farber.

That's all counsel?

Mr. Farber, anyone else?

MR. FARBER:

the Defendant today, your Honor.

THE COURT:

This is the case of the Roman Catholic Diocese of

No, I'll be the only one appearing for

Thank you very much, sir.

LAM

OCR

RPR

Case 1:20-cv-04844-NGG-CLP Document 31-1 Filed 10/16/20 Page 5 of 127 PageID #: 747

Proceedings

Brooklyn against Governor Andrew Cuomo.

proceeding is to provide an evidentiary hearing in connection

with the Plaintiff's motion for preliminary injunction against

the Governor of the State of New York in connection with

limitations on religious worship in Catholic churches during

the COVID-19 pandemic under Executive Order 202.68.

The purpose of this

So, let me just state how we're going to proceed

here.

Defendant has one witness.

Defendant's witness, and the Court has considered the

objection and overruled the objection.

So, we're going to proceed.

The Plaintiff has two witnesses, I understand, and the

The Plaintiff has objected to the

And how we will proceed

is that we will take the Plaintiff's witnesses first and then,

depending on how much time has transpired, we'll take a break

and then take the Defendant's witness.

First, I'll indicate that I've reviewed all of the

papers that have been submitted by the parties.

is that we will complete all of the testimony this afternoon,

which will permit the Court to try to issue a decision before

the weekend.

objective.

And my hope

So, I wish to mention that that's my hope and my

Also, before we move into the testimony, let me

thank Judge Eric Komitee for handling the application for

temporary restraining order last Friday when I was not

available.

LAM

OCR

RPR

Case 1:20-cv-04844-NGG-CLP Document 31-1 Filed 10/16/20 Page 6 of 127 PageID #: 748

Proceedings

So, at this point, is there anything preliminary

prior to beginning hearing from the witnesses?

Anything from you, Mr Mastro?

MR. MASTRO:

Your Honor, nothing other than will

your Honor take any argument at the conclusion of the hearing?

THE COURT:

It really depends on how late we go, but

I could hear some argument.

discuss all those issues in great detail and that may be

sufficient, but if there's something that you want to put a

finer point on I certainly would like to hear from you --

I have all of your papers which

MR. MASTRO:

Thank you, your Honor.

THE COURT:

-- and from the State's attorney.

And Mr. Farber, anything from you before we get

started?

Mr. Farber?

Well, we need Mr. Farber.

Is Mr. Backenson on the call?

MR. BACKENSON:

THE COURT:

I know Commissioner Esposito for many years in

Yes, I am.

I just wanted to identify you.

dealing with the City of New York.

And Bishop Chappetto, is this the Bishop?

BISHOP CHAPPETTO:

THE COURT:

just waiting for Mr. Farber.

Yes, your Honor.

So, we have all of our witnesses.

LAM

OCR

RPR

I'm

Case 1:20-cv-04844-NGG-CLP Document 31-1 Filed 10/16/20 Page 7 of 127 PageID #: 749

Proceedings

(Pause in proceedings.)

THE COURT:

mute until they're called upon?

Would everyone put their microphones on

That will make it a lot easier.

If you want to

object --

MR. FARBER:

Can anyone hear me?

THE COURT:

Mr. Farber?

MR. FARBER:

Yes, yes, your Honor.

THE COURT:

You're back?

Are we ready?

order of proceedings?

MR. FARBER:

Okay.

Did you hear what I said about the

I did, your Honor.

You asked

Mr. Mastro if he had anything prior to proceeding and you then

asked me.

I do not, your Honor.

THE COURT:

Thank you.

MR. FARBER:

We are ready to proceed.

for my technical issues.

Thank you.

I apologize

I don't understand them, but okay.

THE COURT:

Did you provide a phone number to Mr. Reccoppa, my

Is there a phone number, just in case?

courtroom deputy, just in case?

MR. FARBER:

Yes, he has my cell phone number.

THE COURT:

All right.

Mr. Mastro, you may call your first witness.

LAM

OCR

Let's proceed, then.

RPR

Case 1:20-cv-04844-NGG-CLP Document 31-1 Filed 10/16/20 Page 8 of 127 PageID #: 750

Chappetto - Direct - Moccia

MR. MASTRO:

And my colleague Will Moccia is going to do the

Your Honor, Bishop Chappetto.

direct examination.

THE COURT:

Thank you.

MR. MOCCIA:

Your Honor, this is Will Moccia, Gibson

Dunn, on behalf of Plaintiff.

We call Bishop Raymond Chappetto.

THE COURT:

THE COURTROOM DEPUTY:

Please swear in the witness.

Sir, just raise your right

hand, please.

Do you solemnly swear the testimony you shall give

to the Court will be the truth, the whole truth, and nothing

but the truth, so help you God?

BISHOP CHAPPETTO:

THE COURTROOM DEPUTY:

THE COURT:

Go ahead, sir.

MR. MOCCIA:

RAYMOND F. CHAPPETTO,

I do swear that.

Thank you.

Thank you, your Honor.

called by the Plaintiff, having been

first duly sworn, was examined and testified

as follows:

DIRECT EXAMINATION

BY MR. MOCCIA:

Good afternoon, Mr. Chappetto.

LAM

OCR

RPR

Case 1:20-cv-04844-NGG-CLP Document 31-1 Filed 10/16/20 Page 9 of 127 PageID #: 751

Chappetto - Direct - Moccia

Good afternoon, Will.

Could you briefly describe for the Court your current

occupation?

Brooklyn, and I serve as the Vicar General and the Vicar for

Clergy.

Church; is that correct?

That's correct.

How long have you held that position?

I have been the Vicar for Clergy since 2009 and I've been

the Vicar General of the Diocese since 2013.

Vicar General?

say, of the Diocese of Brooklyn.

Bishop DiMarzio and the governance of the Diocese.

offer public Mass within the Diocese?

Yes, I have.

And is that at one church?

My role consists of going around to various churches for

many different reasons; various celebrations, I help out in

different churches.

different churches for special occasions, so I do visit many

Yes.

I am a Roman Catholic bishop of the Diocese of

And that's a clerical position within the Roman Catholic

And just in brief, what are your responsibilities as

Vicar General is sort of the vice president, you might

I work very closely with

And since assuming that role, have you continued to also

I also get specific assignments to

LAM

OCR

RPR

Case 1:20-cv-04844-NGG-CLP Document 31-1 Filed 10/16/20 Page 10 of 127 PageID #: 752

Chappetto - Direct - Moccia

churches.

Catholic Church?

I was ordained on May 29, 1971.

And can you briefly walk us through some of the positions

you've held in the Diocese since your ordination?

pastor -- at four different parishes.

territorial vicar, taking care of 62 parishes in the Brooklyn

west region.

Brooklyn, two in Queens.

When were you initially ordained as a priest in the Roman

I've been a parochial vicar -- that means an assistant

I served as a

I was pastor of three different parishes; one in

Then I became an auxiliary bishop, and, after that,

I assumed the responsibilities in the administration of the

Diocese as well as my pastoral functions.

referred to in the Catholic Church as "pastoral roles"?

a pastoral role as well.

just in general terms explain what it means in the Catholic

Church when someone refers to a "pastoral role"?

of the Church and you preside over various celebrations;

baptisms, funerals, weddings, of course the Eucharist every

Sunday and weekday Mass as well.

And, so, is it fair to say that you held what would be

Yes, I have both roles; I have an administrative role and

Just so that we're clear for the record, can you please

"Pastoral role" means that you celebrate the sacraments

LAM

OCR

RPR

Case 1:20-cv-04844-NGG-CLP Document 31-1 Filed 10/16/20 Page 11 of 127 PageID #: 753

Chappetto - Direct - Moccia

about the same thing, to a few documents that have been filed

in this case.

I'd like to turn now, just so that we're all talking

Do you have in front of you a document titled,

"Declaration of Bishop Raymond F. Chappetto in support of

Plaintiff's application for temporary restraining order and

preliminary injunction"?

Yes, I do.

Do you recognize that document?

Yes, I do.

And, again, just so that we're clear for the record, does

the document at the top have a header that identifies it as

Document No. 5?

Yes, it does.

And are you familiar with the contents of that document?

Yes, I am very familiar with it.

And are you familiar with the materials that are attached

to it as Exhibit A?

Yes.

And have you re-read that document since you first

executed it?

Yes, I have.

And you signed that document under penalty of perjury; is

that correct?

They are memos, and I'm familiar with them.

That's correct.

LAM

OCR

RPR

Case 1:20-cv-04844-NGG-CLP Document 31-1 Filed 10/16/20 Page 12 of 127 PageID #: 754

Chappetto - Direct - Moccia

the contents of that document true and correct?

have corrected in a supplemental document.

To the best of your knowledge as you sit here today, are

There are some corrections that I think one of which we

Correction number one would be the names and number

of parishes that have been affected by the executive order.

We have corrected it in a supplemental document because we

received interactive maps that helped us to get a clearer

picture and better identify the parishes that were affected.

So, yes, that's the first correction, would be in the

supplemental document.

that have been affected by the executive order.

We do say that there are 26 parishes

The second correction is that in the listing of the

people who have assisted Joseph Esposito in the reopening

committee that was formed, the last -- it's paragraph eight on

page three, the last sentence is incorrect.

typographical error.

It must be a

The last sentence reads, "The commission regularly

consulted with a mental health expert."

medical health expert.

substituted for "mental."

It should say a

The word "medical" should be

That's the second correction.

Thank you very much for those.

Aside from those two corrections that you've

identified, are the remaining contents of the declaration true

and correct as you sit here today?

LAM

OCR

RPR

Case 1:20-cv-04844-NGG-CLP Document 31-1 Filed 10/16/20 Page 13 of 127 PageID #: 755

Chappetto - Direct - Moccia

true.

Aside from those two items, the documents are correct and

Thank you very much.

The second document I want to just briefly discuss

is titled, "Supplemental declaration of Bishop Raymond F.

Chappetto in further support of Plaintiff's application for

preliminary injunction."

Do you have that document in front of you?

Yes, I do.

And are you familiar with that document?

Yes, I'm very familiar with it, yes.

And, again, just so the record is clear, does the header

at the top of that document identify it as Document 21?

That's correct.

And have you re-read that document since you first

executed it?

Yes, I have.

And you signed that document under penalty of perjury; is

that correct?

Yes, I did.

And to the best of your knowledge as you sit here today,

are the contents of that document true and correct?

Yes, they are correct and true.

Thank you very much.

about COVID-19.

LAM

So, I want to just now talk briefly

OCR

RPR

Case 1:20-cv-04844-NGG-CLP Document 31-1 Filed 10/16/20 Page 14 of 127 PageID #: 756

Chappetto - Direct - Moccia

In your role as Vicar General, have you been

involved in the Diocese of Brooklyn's response to COVID-19?

Bishop DiMarzio on all aspects of it.

And could you please identify who Bishop DiMarzio is?

Yes.

Catholic Diocese of Brooklyn.

questioning, if I refer simply to the "Diocese," I'll be

referring to the Diocese of Brooklyn; is that okay?

Yes, certainly.

How did the Diocese initially respond to the COVID-19

outbreak in New York?

the public for the safety and protection of the people.

the pandemic first broke out and we saw that it was

escalating, we wanted to be proactive at that point.

the initiative of closing the churches to the public.

prohibited large public gatherings?

We did it before the public demand to do so.

And what, if anything, did the Diocese do in between the

time it closed for public Mass and the time it reopened?

parishes to do virtual Masses, livestreaming Masses, so that

Very much so.

I have been working very closely with

Bishop Nicholas DiMarzio is the Bishop of the Roman

Thank you.

I am Auxiliary Bishop.

For simplicity here on out in this

Well, we took the initiative of closing our churches to

When

We took

And was that before or after the City and State

During that time, we encouraged our pastors and our

LAM

OCR

RPR

Case 1:20-cv-04844-NGG-CLP Document 31-1 Filed 10/16/20 Page 15 of 127 PageID #: 757

Chappetto - Direct - Moccia

the faithful people could continue to worship, you might say,

at a distance.

We did keep in touch with people through phone

calls, through robocalls, through various communications, our

Diocesan newspaper, keeping the people informed of what was

happening, why it was happening, and always looking forward to

a change.

the pandemic itself to prepare for an eventual reopening?

And were there any specific steps taken with respect to

Very much so.

When we came towards the end of the time, we

realized that we would be reopening but we wanted to be

prepared.

Esposito, and this committee's charge was to give advice and

recommendations to the Bishop on how to safely reopen the

churches.

that would later be implemented by the Diocese?

times -- we decided to present our recommendations to the

Bishop for his approval.

I guess let me take a step back.

So, we formed a committee headed by Joseph

Is it correct that the commission developed protocols

That's correct.

After many meetings -- we met many

And you mentioned some meetings of the commission.

Approximately how many people were on this

commission?

LAM

OCR

RPR

Well,

Case 1:20-cv-04844-NGG-CLP Document 31-1 Filed 10/16/20 Page 16 of 127 PageID #: 758

Chappetto - Direct - Moccia

Approximately ten to twelve people.

In general, can you describe their backgrounds?

They came from all different walks in life; some were

police officers, some were legal representatives, some were

Diocesan representatives who knew things about buildings.

So, we had various disciplines represented on the

commission.

corrections to the declarations, but am I correct that there

were also consultations with medical professionals?

that's correct.

consultations?

I believe there were several consultations.

And in general, how often was the commission meeting

during this time period?

we met weekly.

And then as the time came closer, we did not

meet as often.

But at the beginning, I would say it was every

week for four to six weeks.

And you touched on this earlier when we were discussing

Yes, we had a consultation with a medical professional,

And was it one consultation or were there ongoing

We were meeting weekly.

For between four to six weeks,

And then once the document was ready, the commission

had served its purpose, so we disbanded and we did not meet

again.

And this document that you're referring to, are those the

LAM

OCR

RPR

Case 1:20-cv-04844-NGG-CLP Document 31-1 Filed 10/16/20 Page 17 of 127 PageID #: 759

Chappetto - Direct - Moccia

protocols that we discussed a few minutes ago?

That's correct.

And could you just walk us through some of the protocols

that are in that document?

out the church -- and that means with masking tape, other

kinds of markings -- to make sure that the people when they

came back would be socially distanced, so that they would be

six feet apart, they'd be seated every other row.

was the first thing, was the social distancing.

Yes.

We instructed all of our pastors to carefully mark

And that

Then we instructed the people that they would not be

admitted into the church unless they had a mask on.

We told our pastors to get hand sanitizers at the

doors of the church and to post signs at the church entrances

instructing the people that if they did not have a mask on,

they would not be admitted in; and to use the hand sanitizers

upon entrance.

We also instructed them to get cleaning supplies, to

buy them in bulk, so that we could make sure that after every

service, after every Mass, the churches would be cleaned and

sanitized.

mechanically to make sure that the churches were being cleaned

and sanitized in a proper way.

Many of them bought the machines to do it

These are just some of the ways in which we

instructed our pastors to prepare, to get ready, so when the

LAM

OCR

RPR

Case 1:20-cv-04844-NGG-CLP Document 31-1 Filed 10/16/20 Page 18 of 127 PageID #: 760

Chappetto - Direct - Moccia

day would come when we could reopen, then we would be entirely

ready and prepared to make sure the people were kept safe.

the parts of the Mass?

as short as possible so that the people would not be detained

unnecessarily.

And how about the Mass itself?

Were any changes made to

Well, we encouraged the celebrants of the Mass to make it

We changed the way in which Holy Communion was

distributed.

their hand and not on the tongue, which is an option that we

generally do have.

that they would receive in the hand; that they would come up

to the altar, keeping the social distancing, they would keep

their masks on when they received Holy Communion, they would

step to the side, they would then remove their mask, they

would receive the Holy Communion, and then they would put

their mask back on again as they returned to their seats.

reopened at a limited capacity?

reopening, however, was with ten people in which -- the first

reopening was just for visits to the church, without services.

People were told that they would receive in

But for this time period, people were told

And in terms of capacity at Mass, am I correct that you

Yes, we opened up at 25 percent capacity.

The first

And then we went to the second phase, which was

services with ten people.

a priest with ten people present.

LAM

I, myself, celebrated a funeral for

OCR

Only ten people.

RPR

Case 1:20-cv-04844-NGG-CLP Document 31-1 Filed 10/16/20 Page 19 of 127 PageID #: 761

Chappetto - Direct - Moccia

And then we went to the third phase, which was the

reopening at 25 percent capacity.

has permitted larger gatherings; is that correct?

Yes, we have.

Bishop Chappetto, to your knowledge, were the protocols

recommended by the commission adopted by the Diocese?

Yes, they were.

And to your knowledge, were those protocols implemented

by churches within the Diocese?

And you've remained at 25 percent even after the State

Yes, they were.

I have visited many of the churches myself because,

as I mentioned before, I am a Sunday Mass celebrant in the

different churches, and I see how the pastors have implemented

the protocols in a very serious way.

report any incidence of COVID-19?

any incidences.

churches within the Diocese since the reopening you described?

I am not aware of anything that has come to my attention.

And if there were such incidences, would you expect them

to come to your attention?

And does the Diocese have a way for parishioners to

They can call the pastors and let them know if there were

And are you aware of any outbreaks of COVID-19 in any

I think I would be among the first to know.

LAM

OCR

RPR

Case 1:20-cv-04844-NGG-CLP Document 31-1 Filed 10/16/20 Page 20 of 127 PageID #: 762

Chappetto - Direct - Moccia

And why is that?

Because of the position that I hold.

they all have my cell number, they know they can call me at

any time about any reason pertaining to the church or

pertaining to the situation.

there was a COVID breakout from the church.

and saying Masses at the parishes within the Diocese, how

would you describe the level of compliance with the protocols?

complete compliance as I go around.

And the pastors,

So, they would inform me if

And based on your firsthand observations while visiting

I am very much impressed.

I have to be -- what I see is

I complimented one parish that I was at recently.

They formed teams of people because they have four or five

services on a Sunday, four or five Masses on a Sunday, and

there's a team after each Mass that does the cleaning.

in fact, in this particular parish, one time the team for some

reason was not able to make it, and one of the priests himself

did the cleaning to be sure that it was done.

And,

So, I can tell you my own eyes have seen what

they're doing as far as sanitizing, cleaning, people wearing

masks.

it's an annoyance to wear it, they must wear it.

all doing it.

I compliment the people.

I tell them it's not easy,

And they're

So, I would have to say the compliance is excellent.

For those on the call who might not be familiar with the

LAM

OCR

RPR

Case 1:20-cv-04844-NGG-CLP Document 31-1 Filed 10/16/20 Page 21 of 127 PageID #: 763

Chappetto - Direct - Moccia

Catholic faith, could you just in brief explain what it means

to go to Mass?

Sunday; they can go to the vigil Mass on Saturday night or

Mass on Sunday.

Well, for us, the attendance at Mass is obligatory on

It's obligatory.

And the Mass consists of readings from the Sacred

Scriptures; a Homily, which is an explanation of those

readings and how they apply to our daily life; and then the

celebration of the Eucharist, which is the presentation of the

bread and wine, the consecration of the bread and wine into

what we believe is the Body and Blood of our Lord and Savior,

and then the distribution of the Holy Communion to the

individual people.

Eucharist, is the consecration and the distribution of the

Eucharist.

dismissal.

person?

on TV have said, "It's a nice thing to watch it on the TV, but

it's not the same.

That is the heart and center of the

And then there's a dismissal, final prayer and a

How important is it that the Mass be celebrated in

It's absolutely essential because people who have watched

You cannot receive Communion at home."

The priest has no way of bringing Communion to every

household.

at church, it's the fullness of the Eucharist, it's the

complete Eucharist by receiving Holy Communion, and it's

It's impossible.

LAM

So, for them to be in attendance

OCR

RPR

Case 1:20-cv-04844-NGG-CLP Document 31-1 Filed 10/16/20 Page 22 of 127 PageID #: 764

Chappetto - Direct - Moccia

really absolutely essential.

People were starved for Holy Communion during the

pandemic because while they could watch it on TV, which was

very nice, they couldn't receive the Eucharist.

the heartbreak of our people because that's what defines us as

Catholics.

are people of the Mass, and the Mass defines us and it really

tells us who we are.

elaborate, please, on how the lack of in-person Mass impacted

parishioners during the pandemic.

was a hunger on the part of the people.

them personally who told me the spiritual void that they felt

in not being able to receive Holy Communion.

loss for them.

And that was

We are what we call a "Eucharistic people."

And you touched on this briefly, but if you could just

It was definitely a hunger to receive the Eucharist.

I spoke to many of

It was a great

So, coming back to the -- when the Mass was again

allowed to be celebrated with people present, it was a great

joy and a great relief.

satisfied.

Communion.

written on this, but, if you could, just succinctly spell out

from a theological perspective what the significance of Holy

Communion itself is.

The hunger that they had is now being

I'd like to hone in a little more.

You referenced Holy

I realize there are whole theological treatises

LAM

OCR

RPR

Case 1:20-cv-04844-NGG-CLP Document 31-1 Filed 10/16/20 Page 23 of 127 PageID #: 765

Chappetto - Direct - Moccia

Apostles changed the bread and the wine into the Body and

Blood of Christ.

We believe that Jesus at the Last Supper with the twelve

That was the first Mass, at the Last Supper.

We believe that every Mass is a recreation of the

Last Supper, every Mass is a celebration of the Lord's Supper.

And we believe that Jesus said to do this in His memory.

continue that, we celebrate Mass daily.

church there is a Mass.

Every day at every

But on Sunday, the people have the obligation to

attend the Mass because we believe that they are listening to

the Word of God and that they are participating in the Lord's

Supper.

serious part of the Mass and receiving the Holy Communion for

a Catholic is the essence of what it means to be a Catholic.

Holy Communion during Mass?

the choice is up to them:

and then to place the Holy Eucharist into their mouths by

themselves; or the other option that was there prior to the

pandemic was the opportunity receive Communion on their

tongue.

place the Holy Eucharist on their tongue and then they would

consume it that way.

The consecration of the bread and wine is the most

And prior to the pandemic, how would one normally receive

Prior to the pandemic, people would have a choice, and

To receive Communion in their hand

They would extend their tongue and the priest would

And you said that that choice has been removed; is that

LAM

OCR

RPR

Case 1:20-cv-04844-NGG-CLP Document 31-1 Filed 10/16/20 Page 24 of 127 PageID #: 766

Chappetto - Direct - Moccia

correct?

could keep our people safe, yes.

also an option of receiving the Precious Blood during Holy

Communion?

We removed that choice for sanitary reasons so that we

And again now speaking prior to the pandemic, was there

Yes, there was.

Thank you for mentioning that.

That was completely discontinued -- completely -- so

that there would be no chance of anything.

It is not necessary for a Catholic to receive both

the Holy Communion in the form of bread and the Precious

Blood, as we call it, in the form of wine.

necessary to receive the Precious Blood.

host or the wafer -- it is the Body of Christ -- that is

sufficient for a Catholic.

It is not

It's receiving the

So, we discontinued that so there would be no

misunderstanding on the part of anybody that they could

contract any kind of germs.

and people leave the church.

You mentioned about at the end, there's a sending forth

Could you talk briefly about any protocols that were

put in place to make sure that people were safely entering and

existing the churches?

so that they could go out the various exits.

Yes.

We opened the doors of the church, all the doors,

LAM

OCR

RPR

We encourage

Case 1:20-cv-04844-NGG-CLP Document 31-1 Filed 10/16/20 Page 25 of 127 PageID #: 767

Chappetto - Direct - Moccia

them not to the congregate outside as they would do

pre-pandemic so that the people could leave and go home as

soon as possible.

Governor Cuomo have referred to as the "cluster initiative"?

I'm not familiar with that.

I can be more specific.

And are you familiar with what the State of New York and

Are you aware that as part of a recent regulation,

the Governor has issued an executive order that would limit

in-person church attendance in certain geographic areas to 10

or 25 people?

you're referring to that?

Yes.

I am familiar with that, of course.

zones with a limited capacity and the red zones with an even

more limited capacity.

And how does that restriction impact the Diocese?

Oh, a tremendous, tremendous impact.

thing that we are dealing with is the fact that our people

were coming back to Mass after that long period of absence,

they had just started to get used to the idea of coming back

and that it was safe because we made it safe, we made the

environment safe, and then to have this come upon us was very

difficult because it seems like we're going backwards instead

You're referring to the orange zones and the red zones;

Yes, the orange

Yes, I'm very familiar with that.

LAM

OCR

RPR

This is the hardest

Case 1:20-cv-04844-NGG-CLP Document 31-1 Filed 10/16/20 Page 26 of 127 PageID #: 768

Chappetto - Direct - Moccia

of going forwards.

like to tell the Court about the why the Diocese's churches

should be permitted to reopen this Sunday for Mass subject, of

course, to a 25 percent capacity cap and any other safety

measures that the Diocese has implemented and agreed to

implement?

people, people need to worship, people need to be present for

the reception of the Eucharist, people need to be present

because they belong to a community of faith.

that is not very, very easy to swallow.

And Bishop Chappetto, is there anything else that you'd

I think that the essential nature of the worship of our

And to deny them

We need to have our people in church.

We need to

have our people receiving the Eucharist.

there and we have done everything that we could possibly do,

to my knowledge, to make the environment safe for them so that

when they do come into the church they are safe.

continue to do that as much as possible.

And we will

Thank you very much, Bishop Chappetto.

People want to be

MR. MOCCIA:

Your Honor, I have nothing further for

the witness at this point.

THE COURT:

Mr. Farber, do you have any questions for the

All right.

Thank you.

witness?

MR. FARBER:

Thank you, your Honor.

LAM

OCR

RPR

I have a very

Case 1:20-cv-04844-NGG-CLP Document 31-1 Filed 10/16/20 Page 27 of 127 PageID #: 769

Chappetto - Cross - Farber

brief cross, if I might.

THE COURT:

All right.

Please introduce yourself to

Bishop Chappetto.

MR. FARBER:

Yes.

Good afternoon, Bishop.

is Seth Farber.

represent Governor Cuomo today.

My name

I'm with the Attorney General's Office, and I

BISHOP CHAPPETTO:

MR. FARBER:

Thank you.

Thank you, sir.

CROSS-EXAMINATION

BY MR. FARBER:

Paragraph 15 of the -- which is on Page 6 of Document 5, the

first declaration you gave in this case, you state that you

have a reporting structure and you would know whether there

have been any instances of COVID-19 spread in your churches;

correct?

That's correct.

And it's fair to say that you know this based on what

parishioners report to either their parish priest or other

church officials, correct?

That's correct.

So if, for example, a parishioner were asymptomatic and

didn't even know they were COVID positive, of course they

couldn't report that to their parish priest or church

officials, correct?

In your declaration, you state that -- I'm referring to

LAM

OCR

RPR

Case 1:20-cv-04844-NGG-CLP Document 31-1 Filed 10/16/20 Page 28 of 127 PageID #: 770

Chappetto - Redirect - Moccia

report it, you're right.

no particular requirement that parishioners show a negative

COVID test before attending church service; is there?

No, we do not have that provision in the protocols.

Okay.

symptoms of COVID but for whatever reason failed to report

that to a parish priest or a church official, you wouldn't

know that either, correct?

If they failed to report it, we would not know it.

Thank you very much, Bishop.

If they don't know they have it, then they couldn't

Okay.

And my understanding is in your protocol, there's

And similarly, if a parishioner actually had

MR. FARBER:

Nothing further from me.

THE COURT:

All right.

Anything else from Plaintiff's counsel?

MR. MOCCIA:

Thank you.

Your Honor, just a very quick redirect,

if I might.

THE COURT:

REDIRECT EXAMINATION

BY MR. MOCCIA:

might come to church and not be aware or might not have

disclosed that they are COVID positive.

Please.

Bishop Chappetto, Mr. Farber asked you about people who

I just want the record to be clear if any such

person attended Mass, am I correct that they would be

LAM

OCR

RPR

Case 1:20-cv-04844-NGG-CLP Document 31-1 Filed 10/16/20 Page 29 of 127 PageID #: 771

Chappetto - Redirect - Moccia

physically distanced from anyone else attending the Mass?

you have any symptoms, stay home.

protocol.

felt sick or had any symptoms, we've made it very clear that

they were not to come to the Mass.

Mr. Farber's hypothetical scenario where one actor disregards

that instruction, that person would still be attending Mass

subject to all the distancing and the no receipt of the

Precious Blood and everything else we discussed a short time

ago; is that correct?

Absolutely, yes, that's correct.

And then I guess the other question is about the

reporting structure.

Well, we've told people very clearly if you are sick, if

So, we've discouraged them from coming.

Understood.

That's part of the

If they

So, my question then is even assuming

So, am I correct that in addition to just any

informal word of an individual parishioner telling you that

there's an issue, is there also a formal reporting structure

within the Diocese by which the pastors would be directed to

contact someone, either yourself or someone else higher up

within the Diocese, about the situation?

calls made to me because of the outbreak.

waited for that 15-day period to be sure and we received

several calls at the beginning.

Yes.

At beginning of the pandemic, there were numerous

LAM

OCR

And you know, we

But we're talking now at the

RPR

Case 1:20-cv-04844-NGG-CLP Document 31-1 Filed 10/16/20 Page 30 of 127 PageID #: 772

Chappetto - Redirect - Moccia

middle of March.

So, at that time, yes, we did get calls, but then

since then we've done so much and so much time has passed.

Mass, you know, closing the churches, we helped to flatten the

curve.

to do that, conscientiously to do that, to make those numbers

come down.

answer, but I just want to clarify.

Mr. Farber read a portion

of Paragraph 15 of your declaration.

That paragraph also

says, "To my knowledge, since our churches reopened in July

for Mass and other religious ceremonies subject to our safety

protocols, there has not been any COVID-19 outbreak or spread

in any of our churches --"

We helped to bring the numbers down.

We were working

We succeeded in helping and doing our part.

And then you've now largely touched on that with this

MR. FARBER:

I'm going to object, your Honor.

THE COURT:

Overruled.

You can go ahead.

Bishop Chappetto, is that statement correct?

Yes, that's correct.

And just to reiterate, anyone attending Mass would be not

just physically distanced from the other parishioners but also

would be wearing a mask; is that correct?

Yes, they must wear the mask, that's correct.

MR. MOCCIA:

Nothing further, your Honor.

Thank you very much.

LAM

OCR

RPR

Case 1:20-cv-04844-NGG-CLP Document 31-1 Filed 10/16/20 Page 31 of 127 PageID #: 773

Proceedings

THE COURT:

Anything else, Mr. Farber?

MR. FARBER:

No, your Honor, no recross.

THE COURT:

Thank you very much.

Thank you very much, Bishop.

And I'll ask the Plaintiff to call their next

witness.

You have to turn on your microphone, please, Mr.

Mastro.

Not yet.

MR. SHAPIRO:

THE COURT:

You're excused.

I can take over.

I wanted to see if Mr. Mastro can do

this.

(Pause in proceedings.)

THE COURT:

All right.

We'll give him some time.

I'm sure he'll have something to say later.

Just identify yourself.

Everyone when they speak

should identify themselves for the court reporter.

So, go ahead.

MR. SHAPIRO:

Dunn, counsel for the Plaintiff.

Akiva Shapiro, A-K-I-V-A, from Gibson

I will be calling Joseph J. Esposito.

THE COURT:

MR. ESPOSITO:

THE COURT:

THE COURTROOM DEPUTY:

All right, Mr.

Esposito?

Good afternoon, your Honor.

Please swear in the witness.

LAM

OCR

Sir, please raise your right

RPR

Case 1:20-cv-04844-NGG-CLP Document 31-1 Filed 10/16/20 Page 32 of 127 PageID #: 774

Esposito - Direct - Shapiro

hand.

Do you solemnly swear the testimony you shall give

to the Court will be the truth, the whole truth, and nothing

but the truth, so help you God?

MR. ESPOSITO:

THE COURTROOM DEPUTY:

THE COURT:

MR. SHAPIRO:

I do.

Thank you.

You may proceed.

Thank you, your Honor.

JOSEPH J. ESPOSITO,

called by the Plaintiff, having been

first duly sworn, was examined and testified

as follows:

DIRECT EXAMINATION

BY MR. SHAPIRO:

taking the time to be with us.

And good afternoon, Commissioner Esposito.

Thank you for

If we just start out, if you could give the Court a

little bit of a background, a brief overview of your

professional background?

1968 as a police trainee.

next 45 years, ultimately became the chief of the department.

The chief of the department is the highest-ranking uniformed

member of the NYPD.

Sure.

I started in New York City Police Department in

I rose through the ranks during the

I held that position for almost 13 years.

After my mandatory retirement at age 63, I was hired

LAM

OCR

RPR

Case 1:20-cv-04844-NGG-CLP Document 31-1 Filed 10/16/20 Page 33 of 127 PageID #: 775

Esposito - Direct - Shapiro

as the Commissioner for New York City Emergency Management,

where I served from 2014 to 2019.

THE COURT:

Before you go any further, the Court is

very familiar with Commissioner Esposito from his service as

the head of the Office of Emergency Management and also his

tenure in the police department and has the greatest respect

for his accomplishments serving the New York City community.

So, let's go on.

THE WITNESS:

Thank you, your Honor.

MR. MASTRO:

Can you hear me now?

THE COURT:

Yes, I can.

Thank you, Mr. Mastro.

MR. MASTRO:

I'm back.

Thank you.

THE COURT:

Let's proceed.

MR. SHAPIRO:

Certainly, your Honor.

I'm going to

ask only one more question about background just because it

ties in directly to the substance of what we're talking about.

were you involved in preparing for infectious disease

outbreaks or pandemics?

emergencies and prepared for emergencies.

Commissioner of Emergency Management, that was one of our

primary responsibilities:

to help City agencies make plans, and actually have tabletop

exercises where we would deal with certain disasters.

As Commissioner of New York City Emergency Management,

Sure.

I mean, in my role in the NYPD also, we managed

LAM

But as my role as

To train people, to look at plans,

OCR

RPR

And on

Case 1:20-cv-04844-NGG-CLP Document 31-1 Filed 10/16/20 Page 34 of 127 PageID #: 776

Esposito - Direct - Shapiro

a number of occasions, we would deal with pandemic in New

York.

Thank you.

I'll move on past background now.

Do you have in front of you a document titled,

"Declaration of Joseph J. Esposito in support of Plaintiff's

application for a temporary restraining order and preliminary

injunction"?

Yes, I have it in front of me.

Okay.

at the top, the front page?

Yes, it is.

Great.

And that document is titled or marked Document 6

I'm going to call that document your declaration.

Did you review your declaration before signing it on

the last page?

Yes.

And at that time of signing it, you certified, affirmed,

that it was true under penalty of perjury; is that right?

Yes.

Great.

content of your declaration true and correct?

Yes, they are.

Okay.

signed it?

Yes.

And is there anything that you'd like to modify or

And to the best of your knowledge, are the

And have you re-read your declaration since you

LAM

OCR

RPR

Case 1:20-cv-04844-NGG-CLP Document 31-1 Filed 10/16/20 Page 35 of 127 PageID #: 777

Esposito - Direct - Shapiro

correct?

No.

Okay.

response to the COVID-19 pandemic.

the same page, as far as my colleague Mr. Moccia, when I refer

to "the Diocese," I'm referring to the Roman Catholic Church

of Brooklyn, New York, which is the Plaintiff in this action.

How did you come to be involved -- did you come at

Now I'm going turn your attention to the Diocese's

And just so we're all on

some point in time to be involved in the Diocese's response to

the COVID-19 pandemic?

Yes, I was.

How did you come to be involved in it and what was your

role?

known to the Diocese; members of the Diocese, bishops,

monsignors, a lot of the local priests.

on a committee since 2013.

voluntary work, where I investigate misconduct by clergy.

in that role, I became very familiar with the Bishop and the

staff of the Diocese.

Well, I'm a practicing Catholic in Brooklyn.

I'm well

I've actively served

I'm the chair of a committee,

So,

So, and, again, when Corona hit, I was asked to come

onboard and help with the opening of the churches in a safe

manner.

in response to the coronavirus?

And, so, what did the church do or the Diocese do to --

LAM

OCR

RPR

Case 1:20-cv-04844-NGG-CLP Document 31-1 Filed 10/16/20 Page 36 of 127 PageID #: 778

Esposito - Direct - Shapiro

We met on a regular basis.

and city guidelines, we made sure that we used them as our

guidelines to open up the churches.

meetings, communications back and forth with the pastors of

the churches, getting their feedback on our plans that they

developed.

Well, we formed a committee, as the Bishop had stated.

We looked at the federal, state,

Multiple, multiple

Ultimately, the plans were okayed.

Again, we spoke to medical professionals.

We had

people on the committee who were planners, who had planned

major events in the NYPD.

As a result, we come up with these guidelines.

believe it's your Exhibit A.

went out to the parishes.

in effect.

MR. SHAPIRO:

Those were the final plans that

And we went out and put those plans

And just for the record, that's

Exhibit A to Commissioner Esposito's declaration.

recommendations, safety recommendations, were those all made

or done in consultation with medical professionals?

their input, especially on the Communion issue, receiving

Communion.

Okay.

And when you made the various protocol

Yes, yes, I spoke to a number of medical people to get

The other restrictions, again, we complied with the

federal, state, and city restrictions, but we also talked with

medical experts for their input if they thought we had

LAM

OCR

RPR

Case 1:20-cv-04844-NGG-CLP Document 31-1 Filed 10/16/20 Page 37 of 127 PageID #: 779

Esposito - Direct - Shapiro

anything we could modify the plans or add to them.

were really concerned with the part of receiving Communion.

the Holy Communion, so I won't walk through that again, it's

in the record.

But they

And the Bishop has covered the changes that were made to

But if you could, just summarize the other changes

that were made or the other protocols that were put in place

for the churches in the Diocese to ensure the safety.

about receiving Communion.

Sure.

I'd just like to re-stress what the Bishop said

Receiving Communion is a very, very important part

of the Mass service.

really gone to Mass and done their responsibility if they

haven't received.

lot of the parishioners, especially the older parishioners.

It's a very, very important piece to keep in mind.

There are people that feel they haven't

So, that was a real big sore point for a

Things that we did:

The churches should be

sanitized following protocols based on federal, state, and

city; social distancing measures; pews, we knocked off a --

every other pew was closed to ensure that social distancing of

the six feet.

that we had stickers or tape or some kind of marker that

people would stay six feet apart.

member and you lived together with the family, then you could

sit together.

All the pews were marked six feet apart, so

LAM

OCR

Unless you were a family

RPR

Case 1:20-cv-04844-NGG-CLP Document 31-1 Filed 10/16/20 Page 38 of 127 PageID #: 780

Esposito - Direct - Shapiro

Occupancy was limited.

a face mask.

wear gloves.

Again, everyone had to wear

We encouraged gloves also, if you had them, to

Well-ventilated.

We made sure that the churches

kept the windows open a lot of time so that the air could come

through.

Hand sanitizer was provided.

We encouraged the at-risk population, people with

prior medical conditions, we asked them it might be best to

stay away.

We reinforced all the hygiene protocols, hand

washing.

restrooms; we closed the restrooms.

We closed the bathrooms.

Many of the churches have

Things of that nature.

people came in and out of the church?

familiar with Saint Athanasius.

parish.

And how about the entrances and exits and the way that

You know, I'll just mention Saint Athanasius.

I'm very

That's my own personal

They have at least five entrances.

Sunday, the parishioners enter and leave from that main

entrance because they would have the priest who conducted that

Mass be generally at the door of the church or on the

sidewalk.

he'll bless an object if they brought for the kids, they sign

On a normal

And he greets the people; he'll shake their hand,

LAM

OCR

RPR

Case 1:20-cv-04844-NGG-CLP Document 31-1 Filed 10/16/20 Page 39 of 127 PageID #: 781

Esposito - Direct - Shapiro

papers to show that the kids were at church.

So, we eliminated that.

There's no more proceeding

into the church, and the priest comes on the altar from the

sanctuary door.

all.

And, again, he doesn't greet the people at

And again, Saint Athanasius has five doors.

On a

normal Sunday, the main door is used, the side door, we're

making people go out another two doors to really get the back

of the church.

of the church the way they normally would do.

We encourage, a lot, not congregating in front

(Continued on the following page.)

LAM

OCR

RPR

Case 1:20-cv-04844-NGG-CLP Document 31-1 Filed 10/16/20 Page 40 of 127 PageID #: 782

Esposito - direct - Shapiro

BY MR. SHAPIRO:

changes that other churches within the Diocese have made in

the way that they enter and exit?

result of this, St. Athanasius in Williamsburg, Mount Carmel

in Greenpoint, and more churches in Queens, and all of the

protocols we've put in place, I've seen them being used in all

of the churches that I've been to.

any specific cap or percentage that you were limiting

occupancy to?

Yes, the 25 percent.

Okay.

Diocese, is that right?

schedule.

Some added masses.

adapted.

Just even the scheduling of the masses was, was

restructured to help with the, with the problem.

respect to additional employees or individuals in the

churches, inside the churches to ensure compliance?

originally just for prayer on a Monday to Friday basis where

people go into the church, say a prayer and leave.

(Continuing)

And to your knowledge, is that representative of the

Oh, yes, sure.

I visited a number of churches as a

And you had mentioned limiting the occupancy.

Yes.

Great.

Was there

And that was for all the churches in the

And then some of the churches had to modify their

Some removed masses.

And were there any changes made or steps taken with

Sure.

We go back to the original opening.

CMH

OCR

RMR

CRR

FCRR

We opened up

And then

Case 1:20-cv-04844-NGG-CLP Document 31-1 Filed 10/16/20 Page 41 of 127 PageID #: 783

Esposito - direct - Shapiro

after that, we went to a Monday to Friday mass where we have a

mass Monday to Friday, a daily mass.

went to the masses on the weekend, Sundays, and we limited

those folks and we had ushers, some churches hired security

guards.

and he would make sure that everyone wore a mask, social

distancing.

Then, ultimately, we

I know at St. Dominic's, they had a security guard

The numbers were kept to the acceptable level.

So, yes, every church did something.

Either they

organized, as the Bishop had mentioned, different groups to

sanitize the churches, but they all added ushers or people.

put together, the commission put together communicated to

individual churches in the Diocese?

All of them.

And I don't know if I asked before.

in the commission that the Diocese put together?

The chairperson.

And to your knowledge, have the protocols that your

commission put together been adopted by all the churches in

the Diocese?

about the Catholic church, when the Bishop says something, the

parishes listen.

eyes, they did, in fact, listen, right?

And to your knowledge, were the protocols that your group

They were mandated to accept it.

What was your role

If you know anything

And, in fact, in your, from what you saw with your own

CMH

OCR

RMR

CRR

FCRR

Case 1:20-cv-04844-NGG-CLP Document 31-1 Filed 10/16/20 Page 42 of 127 PageID #: 784

Esposito - direct - Shapiro

Without a doubt.

And I guess, you know, I mean, I imagine the parishioners

and the priests throughout the Diocese have the utmost respect

for the Bishop and would certainly follow any directive that

he put out, any mandate that he put out?

St. Athanasius.

We had the confirmation.

confirmation.

Yes.

As a matter of fact, I was, I went to

I guess it was ten days ago or so, Bishop?

We had a double session

We had to split the ceremony to accommodate the

crowd.

confirmation, and we had to use strict regulations because

it's a very, very important sacrament to receive and usually

you bring your whole family.

sponsor and mother and father and it was very, very -- it

wasn't easy to do.

in with more and more people.

they complied but when they don't, we have ushers there to

make sure they comply.

We probably had 120, maybe 150 kids receiving

You only had the

We had people at the church trying to get

THE COURT:

We had to stop them.

I'm sorry.

So, yes,

Where did this event take

place?

THE WITNESS:

THE COURT:

THE WITNESS:

We limited it.

The confirmation?

Yes.

This was at St. Athanasius.

guess it was about 10 days ago, Bishop?

CMH

OCR

RMR

CRR

And I

I think it was last

FCRR

Case 1:20-cv-04844-NGG-CLP Document 31-1 Filed 10/16/20 Page 43 of 127 PageID #: 785

Esposito - direct - Shapiro

Tuesday, I believe.

THE COURT:

All right.

Thank you.

Go ahead.

or instructions in place for priests to report on any COVID-19

instances that they become aware of coming out of church

services?

instruct the parishioners to stay home if they're sick and if

they do feel sick and they were at church there, we've asked

them to report it to their local parish.

been any reported outbreaks or cases that were reported of

that structure?

I would have been notified, yes.

And are you aware of any outbreaks of COVID-19 or spread

in any of the Diocese churches or parishes since the

reopening?

Not to my knowledge.

Just a couple final questions and I'll wrap up.

And did the Diocese, to your knowledge, have any protocol

Yes.

They've been instructed -- the priests will

And would you be told, would you be informed if there had

You're familiar with the order, the executive order

from the Governor that this proceeding is about which, in

practice, limits attendance at churches and the Diocese to a

fixed cap of 10 or 25 people regardless of the size of the

church, right?

Yes.

CMH

OCR

RMR

CRR

FCRR

Case 1:20-cv-04844-NGG-CLP Document 31-1 Filed 10/16/20 Page 44 of 127 PageID #: 786

Esposito - direct - Shapiro

what has the effect been on the churches of the Diocese in

your experience?

church on Sunday just to help communicate that St. Athanasius

was closed.

crying because they can't go to church.

their entire family, they want to come in and celebrate the

mass.

disheartening especially because, really, talking about

Brooklyn and Queens, would have complied, we've gone above and

beyond what the regulations have asked us to do and I think

it's just unfair the way they've done this, with a blanket

statement:

Since that order came out about a week and a half ago,

We've been devastated.

I was at

There were people at the front door of churches

We had to turn them away.

They showed with

It's very, very

Close all the houses of worship.

I think what would be a better way of doing this, if

you want my opinion, is the Health Department has thousands of

people working for them and they have a multitude of

inspectors.

out and visit on a Friday, visit a mosque.

prayer day.

their big prayer day.

churches, Christian churches, all churches.

that house of worship was in violation, well, then you give a

warning, you close them down, take some kind of action against

them, but to do a blanket statement where you're closing all

Well, get a hundred, get 200 inspectors and go

That's their big

On a Saturday, visit the synagogues.

CMH

That's

On a Sunday, go to the Catholic

OCR

RMR

CRR

And if you find

FCRR

Case 1:20-cv-04844-NGG-CLP Document 31-1 Filed 10/16/20 Page 45 of 127 PageID #: 787

Esposito - direct - Shapiro

houses of worship, those that have been complying, ones that

are doing what they can to do the right thing, to close them,

you're really defeating the purpose.

people that are listening to you.

the people that aren't listening to us.

You're smacking the

A better way would be smack

Thank you for that.

Based on your experience in emergency management,

NYPD and information you've obtained chairing the Diocese

COVID-19 commission, do you believe that it's safe for the

churches and the Diocese to stay open as long as they comply

with the 25 percent capacity cap and all of the safety

protocols the Diocese has instituted?

I've been in church every Sunday.

special events, weddings and funerals, Communions,

Confirmations.

rules to the umpteenth percent and to criticize them or to,

you know, make them close as a result of them doing the good

thing is just counterproductive.

like to tell the Court about why the Diocese churches should

be permitted to reopen Sunday for mass, Sunday, subject to the

25 percent cap and the all the other safety measures?

other additional thoughts you want to give the Court?

Without a doubt.

I've been there.

I've been at a number of

They have been, they have been abiding by the

And last question.

Is there anything else that you'd

Any

Well, I think I've articulated it but, again, I just want

CMH

OCR

RMR

CRR

FCRR

Case 1:20-cv-04844-NGG-CLP Document 31-1 Filed 10/16/20 Page 46 of 127 PageID #: 788

Esposito - cross - Farber

to tell you how important it is for the parishioners to go to

church on a Sunday.

parishioners.

They want to meet their fellow

They want to relate to them and talk to them.

It's been very, very stressful.

so many people and they're stressed out to the max.

communication with their co-parishioners.

it on Facebook.

great, putting the masses out, but there's nothing to replace

going to church, seeing your fellow parishioners, seeing your

local, you know, your local religious leader, shaking his

hand, getting a blessing from him on a Sunday.

nothing better than that and we're missing that every Sunday.

And, again, doing it virtually, it helps us but it doesn't

replace being there.

You know, I talk to

They need

You know, you watch

They do a great job, the Diocese is doing

MR. SHAPIRO:

There's

No further questions on direct,

Your Honor.

THE COURT:

Mr. Farber, any question?

MR. FARBER:

Thank you very much.

Very brief, Your Honor.

CROSS-EXAMINATION

BY MR. FARBER:

Good afternoon, Mr. Esposito.

Good afternoon.

My name is Seth Farber.

Office.

I'm with the Attorney General's

I'm representing the defendant Governor Cuomo today.

CMH

OCR

RMR

CRR

FCRR

Case 1:20-cv-04844-NGG-CLP Document 31-1 Filed 10/16/20 Page 47 of 127 PageID #: 789

Esposito - redirect - Shapiro

In brief, sir, you've acknowledged that social

interaction is a big part of the experience of going to

church.

Yes.

Okay.

epidemiology or infectious disease?

conduct at Emergency Management.

training.

Is that fair to say?

Is it fair to say, sir, you have no training in

The only training I have is the tabletops that I would

Okay.

All right.

No, no official medical

Thank you, sir.

THE COURT:

MR. SHAPIRO:

Anything else from plaintiff?

Yes, very briefly, Your Honor.

REDIRECT EXAMINATION

BY MR. SHAPIRO:

social interactions, but all social interactions that occur in

churches since they have reopened have been subject to the

protocols that you and your commission put in place, right?

during the mass, we greet one another.

you know, "Peace be with you," and people will shake hands,

they'll hug, they'll do a cheek kiss.

eliminated also.

you are going to get is you turn around, wave at your fellow

parishioners and say, "Peace be with you."

Commissioner Esposito, Mr. Farber was asking you about

Yes.

There's one thing that wasn't mentioned.

CMH

You know,

You know, we'll say,

That has been

When you say, "Peace be with you," the most

OCR

RMR

CRR

So that social --

FCRR

Case 1:20-cv-04844-NGG-CLP Document 31-1 Filed 10/16/20 Page 48 of 127 PageID #: 790

Esposito - redirect - Shapiro

and we've modified the way we're doing mass.

nowadays?

No contact.

And everyone is social distanced 6 feet or more apart

both during mass and afterwards?

Yes.

Okay.

they're in the church except for the brief moment when they've

stepped to the side and take from the Holy Communion?

No mask, no mass.

And so the parishioners know that the socializing that

they are doing in church is not like any kind of socializing

they would have done in the old days before COVID, right?

That's correct.

And everyone is very careful to maintain all of the

requirements that the Bishop has put in place and mandated

that everyone comply with?

have enough additional ushers and security to mandate that

they do.

time the other day about putting a mask on.

I had to go over

and tell him, "No mask, you can't come in."

He ultimately put

on a mask and came in.

And just to be clear, nobody is shaking the priest's hand

And everyone's wearing a mask the entire time that

Very much so.

That's been our slogan.

And if they don't do it by themselves, we

We, we -- a fellow was giving us a bit of a hard

But to your knowledge, even that kind of brief

CMH

OCR

RMR

CRR

FCRR

Case 1:20-cv-04844-NGG-CLP Document 31-1 Filed 10/16/20 Page 49 of 127 PageID #: 791

Esposito - redirect - Shapiro

intransigences happen very infrequently, right?

regular churchgoer, I could tell, so he wanted to be a little

defiant and we put him in check.

Yes.

Well he was there for a Confirmation.

He was not a

Very good.

And the, the social interaction that people are

really coming to church for nowadays is to be, to gather as a

spiritual community and celebrate mass together under the very

strict guidelines that the church has put in place, fair to

say?

Without a doubt.

Look, I mean a lot of these folks, they want to be

in that building.

to go up to the front.

front of the holy statutes.

We don't even have Holy Water.

eliminated the Holy Water.

gone above and beyond.

appreciate the time.

Okay.

They want to be in that church.

Great.

They want

They want to kneel down and pray in

They want to be in that church.

Another thing.

We've

The fountains are empty.

We've

I'm telling you.

Thank you, Commissioner Esposito.

MR. SHAPIRO:

No further questions from us,

Your Honor.

THE COURT:

Anything further from you, Mr. Farber?

MR. FARBER:

No, Your Honor.

THE COURT:

All right.

CMH

OCR

RMR

Does the plaintiff have any

CRR

FCRR

Case 1:20-cv-04844-NGG-CLP Document 31-1 Filed 10/16/20 Page 50 of 127 PageID #: 792

Backenson - direct - Farber

other witnesses?

Mr. Mastro?

MR. MASTRO:

No, Your Honor.

THE COURT:

Thank you.

All right.

At this point, Mr. Farber, do you want

to call your witness?

MR. FARBER:

I do.

I would call Bryon Backenson.

believe he is on.

THE COURT:

Yes, he is here on video.

MR. FARBER:

Okay.

THE COURT:

So let's swear in the witness.

(The witness is duly sworn/affirmed by the Clerk of

the Court under penalties of perjury.)

THE COURT:

You may proceed, Mr. Farber.

MR. FARBER:

Thank you, Your Honor.

DIRECT EXAMINATION

BY MR. FARBER:

Mr. Backenson, what is your current position?

I'm a research scientist 5 with the New York State

Department of Health.

of Communicable Disease Control for the State Department of

Health.

Biostatistics at the University at Albany School of Public

Health.

Health?

I'm the Deputy Director of the Bureau

I'm an Assistant Professor of Epidemiology and

And how long have you been with the State Department of

CMH

OCR

RMR

CRR

FCRR

Case 1:20-cv-04844-NGG-CLP Document 31-1 Filed 10/16/20 Page 51 of 127 PageID #: 793

Backenson - direct - Farber

consecutively now since 2000.

court?

Madison, New Jersey, a Master of Science in epidemiology and

biostatistics from the University of Albany.

epidemiological issues, is that correct?

I am.

Can you tell the Court who is Debra Blog?

Debra Blog is the director of the Division of

Epidemiology in New York State.

epidemiologist.

Blog is the State epidemiologist for New York.

bureau, the Bureau of Communicable Disease Control, falls

under Deb Blog.

Okay.

I do.

And in what capacity?

Dr. Blog?

is one of 5 bureaus that work under Dr. Blog.

75 or so different diseases in New York State, infectious

diseases, that are mandated to be reported to New York State

Twenty-four years.

I've been with the Department

Can you describe your educational background for the

I have an undergraduate degree from Drew University in

As a general matter, you are familiar with

She's also the State

There is one designated for each state.

Deb

She -- my

And do you work with Ms. Blog, Dr. Blog?

What is your relationship with

So my group, the bureau of communicable disease control

CMH

OCR

RMR

CRR

There are about

FCRR

Case 1:20-cv-04844-NGG-CLP Document 31-1 Filed 10/16/20 Page 52 of 127 PageID #: 794

Backenson - direct - Farber

and county health departments and our group basically

investigates those as well as other issues that come up that

require investigation that may not have made that list quite

yet.

individual cases of disease and clusters of cases of disease,

depending on the pathogen or the disease involved.

this case?

I am.

Have you had a chance to review that declaration?

I have.

Have you had a chance to review the exhibits to that

declaration?

I have.

All right.

contain any statements that you disagree with?

Basically, what we do is we look, we investigate

Are you aware that Dr. Blog has filed a declaration in

Is there anything in that declaration that

MR. MASTRO:

Objection, Your Honor.

THE COURT:

Yes, Mr. Mastro.

MR. FARBER:

I can rephrase.

MR. MASTRO:

It's not a question of rephrasing.

May I please be

heard?

The

questioner is leading his own witness, but this witness, you

know, he's not in a position, he's not qualified as an expert

in the way that the State presented Dr. Blog.

generally familiar with epidemiology and he is now going to be

CMH

OCR

RMR

CRR

He said he's

FCRR

Case 1:20-cv-04844-NGG-CLP Document 31-1 Filed 10/16/20 Page 53 of 127 PageID #: 795

Backenson - direct - Farber

asked to adopt opinions given by Dr. Blog that were really

general conclusions that other courts in this state and

recently in Washington, D.C. found were conclusory and not

based on a sufficient record under Daubert.

This is actually trying to not have the real witness

here who might actually have been qualified to give an

opinion, although challenge it.

not a doctor, not a Ph.D., and who's now being asked to adopt

in its entirety an affidavit or a declaration over 90

paragraphs, 37 exhibits, and he's simply not qualified to give

the opinions that are given in the declaration and it is, you

know, at its core, putting words in the witness' mouth when

the other person should have been here.

We have a subordinate who is

So, Your Honor, I don't mean belabor the point but

we would have objected to opinions being rendered in this

conclusory fashion just as the Northern Division of New York

rejected the Commissioner of Health doing the same thing in a

case in August and a DC district court just did last Friday,

but this witness isn't even qualified to give those conclusory

results.

agree with everything in it?

testimony, Your Honor, certainly not proper expert testimony.

He read her declaration.

THE COURT:

Now he's going to say I

I don't think that's proper

Mr. Farber, you're not providing this

witness as an expert on the issues that would require

expertise of the type that Dr. Blog may or may not have, are

CMH

OCR

RMR

CRR

FCRR

Case 1:20-cv-04844-NGG-CLP Document 31-1 Filed 10/16/20 Page 54 of 127 PageID #: 796

Backenson - direct - Farber

you?

MR. FARBER:

Dr. Blog's expertise, Your Honor.

the background of this policy, public health practices and

other matters with which he is eminently familiar since he

works in that area and has worked in that area for many years.

I'm not offering the witness for

I'm offering the witness on

MR. MASTRO:

Your Honor, may I talk, please?

THE COURT:

Wait, Mr. Mastro.

In that case, why don't you ask him specific

questions which relate to his responsibility in his position

and leave Dr. Blog's declaration as a separate matter that can

be argued about.

a witness and the Court may or may not take her declaration

into account in reaching the determination, but I think this

witness certainly can speak to certain issues.

questions myself so why don't we go ahead with some specific

questions as to issues or --

Dr. Blog did not, is not being presented as

I have a few

MR. FARBER:

Right.

THE COURT:

-- facts that he has specific knowledge

of and then we'll move on from there.

MR. FARBER:

I will move on, Your Honor.

MR. MASTRO:

Thank you, Your Honor.

THE COURT:

Okay.

your position with the Department of Health is and New York

Mr. Backenson, can you tell the court what your role in

CMH

OCR

RMR

CRR

FCRR

Case 1:20-cv-04844-NGG-CLP Document 31-1 Filed 10/16/20 Page 55 of 127 PageID #: 797

Backenson - direct - Farber

State's response to the COVID-19 pandemic?

of communicable diseases in New York State.

that since 2009.

individuals to investigate outbreaks across New York State.

am the, I'm the person who people call at 2 in the morning

when a physician has a question about a case that they don't

know what to do with with regards to reporting that.

So I over -- in my role, I oversee our case investigation

I've been doing

I investigate outbreaks and direct

My first instance with regards to COVID was in

January when I wound up getting phone calls with regards to

individuals who had recently returned from China and I've

worked with other members of the Department ever since in

order to help develop some of the surveillance techniques in

order to, in order to identify cases, some of the policies

involved in trying to address issues when it comes to

isolation and quarantine and so forth with regards to this.

I've also been directly involved in contact tracing and

contact elucidation with all the counties of New York State.

the division of epidemiology, is it infectious diseases?

Communicable Disease Control and we investigate outbreaks and

we try and implement public health measures to help mitigate

spread of outbreaks.

Okay.

And what is the role of your particular section of

It's communicable disease, right.

Okay.

It's the Bureau of

And what is the role of the Division of

CMH

OCR

RMR

CRR

FCRR

Case 1:20-cv-04844-NGG-CLP Document 31-1 Filed 10/16/20 Page 56 of 127 PageID #: 798

Backenson - direct - Farber

Epidemiology in response to the COVID pandemic?

groups.

is a group that deals with hospital-acquired infections.

There's a group that deals with tuberculosis.

that deals with communicable disease data.

broken up by individual subject matter fields, if you will.

transmitted?

inhaling particles that have, that are infected with the

virus, be them aerosols or be they droplets.

again, that's primarily how this happens.

indication that there may be some transmission of this through

picking up the virus on surfaces and then, you know, wiping it

into a mucous membrane like a mouth or an eye.

vast majority of transmission is via the respiratory route.

The Division of Epidemiology encompasses five different

Ours is kind of general communicable disease.

Okay.

There

There's a group

So we're basically

To your knowledge, how is the SARS-CoV-2 virus

It's a respiratory virus.

MR. MASTRO:

It is transmitted primarily by

They are --

There is some

It appears the

Your Honor, I have to object because it

was represented that he wasn't going to try to solicit expert

opinion from the witness and he just elicited the witness',

you know, opinion about how the virus is transmitted.

Your Honor, I didn't hear the witness say and I'm happy to

voir dire him on it, I didn't hear him say he considers

himself to be an expert on COVID-19.

all.

I didn't hear that at

So he's being called to give testimony about, really in

CMH

OCR

RMR

CRR

FCRR

Case 1:20-cv-04844-NGG-CLP Document 31-1 Filed 10/16/20 Page 57 of 127 PageID #: 799

Backenson - direct - Farber

the nature of expert testimony about how the virus --

THE COURT:

Well, your point is well taken but

anyone who's listened over the last eight months to Dr. Fauci

has become an expert on how COVID-19 is transmitted.

generally understood situation, it would seem, and I'm not

taking his statement as an expert statement.

reinforces what we have been, we have come to understand about

the pandemic.

experts on how COVID-19 is transmitted and then there are a

few who have no idea whatsoever.

It's a

It just

There are millions of Americans who are now

So let's just move ahead.

Your point is well taken.

I am not going to rely on this witness on that particular

issue.

MR. MASTRO:

Thank you, Your Honor.

THE COURT:

Yes.

Let's move on.

Let's move on, please.

I'd like

to hear more about the specifics of this particular executive

order and how it came about, 202.68 which imposed new

restrictions in certain neighborhoods in Queens and Brooklyn

which is the subject of this application.

Okay.

MR. FARBER:

Let's go ahead, Mr. Farber.

Sure.

cluster is?

related in one way or another.

Mr. Backenson, can you tell the Court what a COVID

Yes.

A cluster of COVID is a group of cases that are all

CMH

OCR

RMR

It could be related through an

CRR

FCRR

Case 1:20-cv-04844-NGG-CLP Document 31-1 Filed 10/16/20 Page 58 of 127 PageID #: 800

Backenson - direct - Farber

occupational exposure, it could be related through a home

exposure, it could be related through some sort of gathering

but, basically, it's a link between a number of people who are

positive and it's basically, it's, you know -- typically it's

assumed to be three or more individuals who are all linked

together.

Can you tell the court what a superspreader event is?

A super spreader event is something where one particular

infected individual disproportionately infects a number of

other individuals.

multiple circumstances with regards to COVID and other

illnesses for that matter but, typically, that can be from

when one particular individual is in a position where they may

be sharing more virus particles than they would, than another

individual might, particularly a situation that they might be

placed in where people are close together and there are a

number of people who may be susceptible to becoming infected

but, in general, again, it is one individual

disproportionately infecting a number of others.

of worship and superspreader events?

Is there a relationship to your knowledge between houses

MR. MASTRO:

Objection, Your Honor.

Foundation and

he's asking him for, again, expert testimony.

It is something that we've seen in

THE COURT:

Okay.

Sustained.

Superspreader events take place, as you just said,

CMH

OCR

RMR

CRR

FCRR

Case 1:20-cv-04844-NGG-CLP Document 31-1 Filed 10/16/20 Page 59 of 127 PageID #: 801

Backenson - direct - Farber

when there are large groups of people present, is that fair to

say?

Yes.

MR. MASTRO:

Leading the witness, Your Honor.

THE COURT:

Go ahead.

of New York in determining that there were COVID clusters?

proportion of tests that are testing positive so the number of

people getting tested and the number of percentage of those

tests that are returning positive within a different time

period.

cluster initiative?

I am.

Can you tell the Court what the cluster initiative is?

So the cluster initiative is a, it's -- first of all,

it's an identification of areas of increased incidents of

cases in a particular area, particularly compared to other

locations, and it's basically a targeted return to some of the

techniques that were done when New York went on pause back in

March.

basically trying to reduce density in areas where there are

large or larger proportions of people who are testing

positive.

Can you describe the data that was relied on by the State

These would be the data on human cases as well as the

Are you familiar with what the State is calling the

It's limiting businesses, it's limiting movement, it's

CMH

OCR

RMR

CRR

FCRR

Case 1:20-cv-04844-NGG-CLP Document 31-1 Filed 10/16/20 Page 60 of 127 PageID #: 802

Backenson - direct - Farber

number 202.68?

Yes.

Okay.

"orange zone" and "yellow zone" as set forth in that executive

order?

Yes.

Okay.

orange zone and yellow zone are?

individual zones have been set up so that the red zone is an

area that has the highest incident of new cases in an area

that go through the highest proportion of tests being, coming

back positive.

less than that.

Are you familiar with the Governor's executive order

Are you familiar with the terms "red zone,"

And briefly, can you say what the red zone and

So these zones are basically ways that, they're -- the

Orange is less than that and yellow then is

In each of those, there are a number of different

mitigation measures that are taking place.

temporary.

that had been increasing in those particular areas.

They are

They're there to try and help reduce the spread

They include limits on gatherings from none in the

red to 10 in the orange to 25 in the yellow to business just

being essential, just essential businesses being open in the

red zone to some closing of high risk businesses in the orange

zone to all businesses being open in the yellow zone.

are restaurant restrictions from takeout only in the red zone

CMH

OCR

RMR

CRR

FCRR

There

Case 1:20-cv-04844-NGG-CLP Document 31-1 Filed 10/16/20 Page 61 of 127 PageID #: 803

Backenson - direct - Farber

to outdoor dining limited to four at a table only in the

orange zone to indoor and outdoor dining limited to four at a

table in that yellow zone.

and the orange zones.

They're open in the yellow zones but

with required testing.

And churches are limited in the red

zones to 25 percent or 10 -- 25 percent capacity or 10

individuals whichever is smaller, the orange zone is

33 percent capacity or 25 individuals, whichever is smaller,

and in the yellow, it's listed to 50 percent capacity.

zones?

case data as well as testing data.

red zones represent, you know, the highest concentration of

COVID cases, the orange zones the less highest and the yellow

zones the less highest, is that fair to say?

Schools are closed in both the red

Are you aware of the data that was used in creating these

The data that was used for these was a combination of

All right.

As far as you're aware, the red zones, do the

Having looked at the data --

MR. MASTRO:

Objection, Your Honor.

THE COURT:

I'm allowing the answer.

Go ahead.

to the highest incidence rates and the highest testing rates.

Having looked at the data, the zones certainly correspond

THE COURT:

Mr. Farber, if I may.

CMH

Let me just ask this.

OCR

RMR

CRR

Excuse me,

FCRR

Case 1:20-cv-04844-NGG-CLP Document 31-1 Filed 10/16/20 Page 62 of 127 PageID #: 804

Backenson - direct - Farber

Is your office the office that collects this data

and examines and interprets this data?

Is that what you do?

THE WITNESS:

Department of Health collect data.

try and clean data to make sure that the data that's being

used is, is appropriate and, you know, placed in the right

locations and so forth.

does.

THE COURT:

Our office and other offices in the

We do analyze data.

We do

So, yes, that is what our office

And in establishing the zones, is it

your office that established these zones when they became

necessary when the positive test results reached a certain

level of positivity, of testing?

THE WITNESS:

No, Your Honor, my office was not

involved in the creation of a threshold for a particular zone

if that's what you're asking.

THE COURT:

Well, then, if not your office, who's

office calculates the level of positivity and what needs to be

done with a zone a community needs to be placed in?

THE WITNESS:

creation of the zones were done by the executive office.

THE COURT:

I know what we're talking about.

You

mean, the Governor's office, the defendant's office, right?

THE WITNESS:

THE COURT:

These, as I understand it, the

Correct.

And Mr. Farber, the question is, and I'm

sure that you'll asking it eventually on cross-examination,

CMH

OCR

RMR

CRR

FCRR

Case 1:20-cv-04844-NGG-CLP Document 31-1 Filed 10/16/20 Page 63 of 127 PageID #: 805

Backenson - direct - Farber

but my question is you're not, you're not providing any

witness to elucidate that a certain level of positivity

requires a certain level of limiting community activity;

that's not why, why this witness is here, I take it?

MR. FARBER:

That's correct, Your Honor.

This

witness is going to, you know, testify about the general

policy, its reasonableness as a matter of sound

epidemiological and public health practice, but he did not,

you know, create the specific policy of, you know, X percent

do this, X minus Y percent do that.

THE COURT:

That's not this witness.

And he's not an epidemiologist.

other words, he's not the person or group of persons who are

being consulted by the Governor as to establishing these,

these standards or cutoffs for red zones and orange zones and

the yellow zones, correct?

MR. FARBER:

He's in the group that is.

I can't say

that he personally is part of that.

THE COURT:

Well, let me cut to the chase here for a

minute.

and correct me if I'm wrong, Mr. Farber, a representation that

the red zone consists of a positivity rate of at least

8 percent.

I think that in Dr. Blog's declaration, there was,

Is that your understanding?

MR. FARBER:

That is, that is my understanding.

think that, I think that's an approximation and I think

that's --

CMH

OCR

RMR

CRR

FCRR

Case 1:20-cv-04844-NGG-CLP Document 31-1 Filed 10/16/20 Page 64 of 127 PageID #: 806

Backenson - direct - Farber

THE COURT:

Okay.

MR. FARBER:

-- that's an average but I think that's

correct.

I think that's correct.

THE COURT:

Well, it was brought to my attention

this afternoon that the Governor held a press conference at

11:30 this morning at which he indicated that the numbers show

that there are, the positivity rate in the red zone is

4.84 percent at present.

Are you are of this?

Do you have a witness who can talk about what's

going on with the positivity rate and how that might affect

this litigation?

MR. FARBER:

of that, Your Honor.

I have today is, you know, can address it if he knows.

I, you know, I am not, I am not aware

And the witness I, you know, the witness

I can tell the Court that Dr. Blog herself

unfortunately had a medical issue.

her availability, for example, for tomorrow but, you know,

that's what I have.

difficult circumstances, you know, as we indicated in our

letter so, you know, we're, we're all, you know, in a

difficult position.

THE COURT:

Mr. Farber.

MR. FARBER:

Yes.

THE COURT:

This was scheduled -- this hearing was

Unfortunately, Your Honor, we're in

You know, we are dealing with this.

scheduled over the weekend.

CMH

I don't know, you know,

OCR

Mr. Farber.

All right.

RMR

CRR

FCRR

Case 1:20-cv-04844-NGG-CLP Document 31-1 Filed 10/16/20 Page 65 of 127 PageID #: 807

Backenson - direct - Farber

MR. FARBER:

Yes, Your Honor.

THE COURT:

And the Governor is giving, is giving a

press conference this morning and the numbers that he

apparently, you can correct it, I'm not saying this is, this

is just hearsay on my part, but it's valuable here since we're

trying to figure out what to do here.

the red zone is now under 5 percent and that's what I'm,

that's what I'm understanding from this press conference that

he had.

This is a court.

He's now saying that

I don't go to press conferences.

So, you know, I think it is important for your client to be

able to tell you what the latest move is so that we can have

an up to date understanding of what's going on with regard to

this COVID outbreak which I do not minimize in any way, shape

or form, you understand.

picture that is available so that if it is useful, if it is

useful in what we are doing, at least we will have it and be

able to consider it.

I'm just trying to get the latest

So I'm going to let you go ahead.

MR. FARBER:

Okay.

THE COURT:

I just point that out to you and ask you

to provide any additional information by tomorrow morning at

9 o'clock --

MR. FARBER:

Yes, Your Honor.

THE COURT:

-- on this subject and possibly some

CMH

OCR

RMR

CRR

FCRR

Case 1:20-cv-04844-NGG-CLP Document 31-1 Filed 10/16/20 Page 66 of 127 PageID #: 808

Backenson - direct - Farber

sort of declaration by someone who is crunching the numbers as

to how this might affect all these zones that have been

created and affect the rights of the plaintiff in this case

and the parishioners of the Roman Catholic Diocese of

Brooklyn.

So having said all that, you can go back to your

questioning of the witness.

MR. FARBER:

Thank you.

Thank you, Your Honor.

gatherings"?

Yes.

Okay.

202.68 treats nonessential gatherings in the red and orange

zones?

Yes.

How does it treat them?

Gatherings are -- there are no nonessential gatherings in

the red zone and gatherings are limited to ten or less in the

orange zone.

business"?

Yes.

All right.

context of Executive Order 202.68?

Backenson, are you familiar with the term "nonessential

Okay.

And are you familiar with how Executive Order

And are you familiar with the term "essential

And can you please describe that term in the

Essential businesses have been defined earlier, in

CMH

OCR

RMR

CRR

FCRR

Case 1:20-cv-04844-NGG-CLP Document 31-1 Filed 10/16/20 Page 67 of 127 PageID #: 809

Backenson - direct - Farber

earlier executive orders as businesses that are, that are

allowed to remain open because they provide essential services

to the State and to New Yorkers.

and this particular executive order, essential businesses are

allowed to stay open when in the red zone, other businesses

must close; in the orange zone, they are open, there are

personal care and other high risk businesses that are, that

should be closed; and in the yellow zone, there's no

restrictions.

offered evidence that the church officials are not aware of

COVID outbreaks from its churches in red and yellow zones and

that the church has imposed its own hygiene, social

distancing, masking mitigation measures.

Okay.

And with regards to those,

The plaintiff has offered us, the plaintiff

In your view as a epidemiologist with New York

State, is that, in your view, an adequate public health

measure?

MR. MASTRO:

Objection, Your Honor.

THE COURT:

No.

And it's

also --

I'm allowing it.

Go ahead.

certainly appropriate with regards to the phased entry that

has happened starting in mid May.

is trying to have a targeted approach to try and address areas

that have extraordinarily high rates of positivity.

So the measures that have been undertaken were, are

CMH

OCR

RMR

What we're trying to do now

CRR

FCRR

It may --

Case 1:20-cv-04844-NGG-CLP Document 31-1 Filed 10/16/20 Page 68 of 127 PageID #: 810

Backenson - direct - Farber

in situations like this, taking additional steps in order to

try and minimize spread and minimize risk to other individuals

and potentially trying to stop spread from catching hold in

certain areas is appropriate.

actually has lower capacity than the State requires in its

churches.

in cases, the State permits 33 or even higher.

All right.

And plaintiff, plaintiff argues that it

It's at a maximum of 25 percent capacity and when

Why, again, as an epidemiologist with the State of

New York, would it be of concern if the churches in the red

and orange zone continue to operate at 25 percent capacity?

MR. MASTRO:

Same objection, Your Honor.

THE COURT:

Your objection is noted.

You may answer.

what actions the church has taken, but the actions that are

around the church and the individual, the increasing rate of

positivity in the communities surrounding it.

about then potential spread inside, inside this particular

church, potential spread to other people outside the

community.

It is -- I mean, I think the main concern again is not

It's a concern

The goal of COVID mitigation is to try and keep

COVID numbers as small as possible because as we've seen in a

number of situations in New York and nationally and

internationally for that matter, this is a disease that can

CMH

OCR

RMR

CRR

FCRR

Case 1:20-cv-04844-NGG-CLP Document 31-1 Filed 10/16/20 Page 69 of 127 PageID #: 811

Backenson - direct - Farber

spread very, very quickly both in terms of time and a place.

mitigation where there are high positive, positivity COVID

rates in a given area?

Yes.

And can you describe what the CDC's guidance is for such

community mitigation?

increasing rates of number of cases and of incidence rates in

particular areas.

or a combination of both as we're doing here increases in a

particular area, CDC would recommend that additional steps get

taken in order to try and prevent future spread, particularly

in areas of high density.

Are you familiar with the CDC's guidance for community

In short, the CDC takes escalating steps as they're

Okay.

So if incidence rates or positivity rates

And I'm nearly, nearly done here.

Can you explain what you meant concerning density?

the spread, transmission of COVID involves density.

concern that we have is when there are a number of people

present, that it's much easier for one person to infect more

than one individual.

Sure.

So density is a -- one of the main concerns about

The main

What we want to do as epidemiologists, as public

health professionals is try and, whenever there is a case, we

want to have fewer than one case, have that person transmit to

fewer than one individual.

CMH

OCR

That's a term called the

RMR

CRR

FCRR

Case 1:20-cv-04844-NGG-CLP Document 31-1 Filed 10/16/20 Page 70 of 127 PageID #: 812

Backenson - direct - Farber

reproductive rate.

the best ways to do that is to limit the number of people that

a positive individual is --

And so one of the things that we -- one of

THE COURT:

There is someone who's on a telephone call in the

Hold on.

Hold on a minute.

middle of this proceeding and it's very distracting.

either hang up the phone or terminate your involvement in this

proceeding.

THE CLERK:

just going to wait.

THE COURT:

I'm sorry to interrupt, sir.

Judge, I can mute everybody but I was

Thank you very much.

Please complete your

statement.

THE WITNESS:

Certainly.

the number of people that one individual can potentially

transmit to.

It's why we went on pause back in March.

It is

why we are, we recommend masking and social distancing.

It's

why we have certain limits for gatherings, why we have

staggered workplaces, why we have staggered school settings,

why we have no fans in stadiums.

prevent events where one or two positive individuals who may

or may not know that they are ill or positive can potentially

give this to many, many other people at once.

So density is important, basically, in trying to limit

Okay.

It basically is trying to

Thank you, Mr. Backenson.

CMH

OCR

RMR

CRR

FCRR

Case 1:20-cv-04844-NGG-CLP Document 31-1 Filed 10/16/20 Page 71 of 127 PageID #: 813

Backenson - cross - Mastro

MR. FARBER:

That actually concludes my direct.

THE COURT:

All right.

Cross-examination?

MR. MASTRO:

Thank you, Mr. Farber.

Yes, Your Honor.

Thank you,

Your Honor.

THE COURT:

Introduce yourself to the witness.

MR. MASTRO:

Yes.

CROSS-EXAMINATION

BY MR. MASTRO:

doing this as quickly as possible.

Mr. Backenson, I have a few questions.

First --

THE COURT:

This is Mr. Mastro.

MR. MASTRO:

Yes.

THE COURT:

All right.

introduced you to the witness.

MR. MASTRO:

Thank you.

I look forward to

Go ahead, Mr. Mastro.

I'm sorry.

hope you took my father's course, Dr. Julius Mastro?

I am familiar with your father, yes.

and a great father.

Mr. Backenson, I did see you went to Drew University.

Unfortunately, I spent all my time in biology classes but

Well, God rest his soul.

He was a great, great professor

So, Mr. Backenson, just to clarify, you didn't speak

to the Governor about the executive order that's at issue in

this litigation, did you, sir?

CMH

OCR

RMR

CRR

FCRR

Case 1:20-cv-04844-NGG-CLP Document 31-1 Filed 10/16/20 Page 72 of 127 PageID #: 814

Backenson - cross - Mastro

I did not.

You didn't speak to the Executive Office about what that

particular executive order should say, did you, sir?

Before it was created?

Yes.

I wasn't.

So you were not consulted in any way on what that

executive order should say, the parameters that were defined;

you had nothing to do with that, correct?

I did not.

You had nothing to do with what geographic areas

qualified as red zones, did you, sir?

I did not.

Or orange zones or yellow zones for that matter, correct?

No, sir.

And you had no role in defining how this executive order

restricted houses of worship in those zones, correct, sir?

Correct.

And you said the, those decisions about which areas

qualified for which zones, they were made in the Governor's

office, correct?

To my knowledge.

And, sir, who in the Governor's office, the Governor's

office specifically, is, in fact, an epidemiologist?

is any?

CMH

OCR

RMR

CRR

FCRR

Is there

Case 1:20-cv-04844-NGG-CLP Document 31-1 Filed 10/16/20 Page 73 of 127 PageID #: 815

Backenson - cross - Mastro

I do not know, sir.

Who in the Governor's office is a doctor or a scientist

who specializes in infectious disease, do you know, sir?

I do not know, sir.

Is it typical in your experience that -- strike that.

Strike that.

Are you aware that the Governor announced today that

the test results as of yesterday for red zones are down to

4.84 percent positivity?

I heard it earlier in this, here.

But you said your job is tracking trends and rates,

right?

The role of our unit is, yes.

So are you aware that the test results reported yesterday

for red zones are down to 4.84 percent positivity?

aware of that?

of the specific number for this specific region in, in -- I'm

unsure if the term you're talking about is for all the red

zones or just one in particular.

Are you aware of that, sir?

Didn't you say that earlier?

I'm aware that the rates have lowered.

You're

I was not aware

Sir, I want to ask you a few questions.

You said this executive order, they put this

together in the Governor's office, right?

That is my, that's my, that is my understanding.

Yes.

Thank you.

CMH

I want to ask you the following

OCR

RMR

CRR

FCRR

Case 1:20-cv-04844-NGG-CLP Document 31-1 Filed 10/16/20 Page 74 of 127 PageID #: 816

Backenson - cross - Mastro

questions.

Are you aware that the Governor has said publicly

that his latest, that as to his latest executive order, "The

issue is with the ultra-Orthodox community"?

the Governor said that publicly, sir?

I am not.

Do you agree with the Governor that "the issue is with

the ultra-Orthodox community"?

issue?

The, the issue, I believe, is more so with a --

Yes or no, sir.

Are you aware

Sir, do you agree that's the

Yes or no.

Yes or no, please.

THE COURT:

I'll allow him to answer.

MR. FARBER:

I'm going to object -- okay.

THE COURT:

I'm going to allow him to answer.

We'll take your answer on that, please, sir.

No.

Am I correct that the cluster that you're referring to in

these red zones is, as the Governor has said, predominantly an

ultra-Orthodox cluster"?

population.

So you agree with that, correct?

These zones are --

These are areas that have a high population of Orthodox

Do you agree with that?

THE COURT:

I'm sorry.

You can finish your answer.

Go ahead.

CMH

OCR

RMR

CRR

FCRR

Case 1:20-cv-04844-NGG-CLP Document 31-1 Filed 10/16/20 Page 75 of 127 PageID #: 817

Backenson - cross - Mastro

the Orthodox population.

in these neighborhoods is an insular community?

These areas are areas that do have a high proportion of

And do you agree, sir, that the ultra-Orthodox community

MR. FARBER:

Objection.

THE COURT:

Sustained.

these neighborhoods tends not to interact with its neighbors?

Do you agree, sir, that the ultra-Orthodox community in

MR. FARBER:

Objection.

THE COURT:

Sustained.

that you do is contact tracing, right?

Correct.

Have you attempted to do any contact -- contract -- have

you attempted to do any contact tracing work in connection

with these clusters in these red zones in Brooklyn?

jurisdiction of the New York City Health Department.

Department has jurisdiction to enforce the government's

executive orders?

Sir, you said in your testimony that one of the things

I have not.

That's the jurisdiction, that's the

Am I correct, sir, that the New York State Health

MR. FARBER:

Objection.

THE COURT:

No, whether he knows.

MR. FARBER:

Okay.

THE COURT:

Do you know?

CMH

OCR

RMR

CRR

If he knows.

FCRR

Case 1:20-cv-04844-NGG-CLP Document 31-1 Filed 10/16/20 Page 76 of 127 PageID #: 818

Backenson - cross - Mastro

THE WITNESS:

Yes.

Sir, do you know whether the Department of Health, the

State Department of Health has taken any steps to enforce the

Governor's executive order at issue here in relation to COVID

cluster in the ultra-Orthodox community in these Brooklyn red

zone neighborhoods?

has done that?

I do not.

Now, sir, I want to also ask you the following.

Do you know whether the Health Department

You were here listening to the testimony of

Bishop Chappetto and Commissioner Esposito, correct?

Correct.

And you heard Commissioner Esposito say that to his

knowledge, there have not been any outbreaks of COVID-19

stemming from any Catholic church or congregation in New York

City including Brooklyn or Queens.

Did you hear his testimony on that score, sir?

I did.

And as far as you know, that's true and correct

testimony, right, sir?

jurisdiction of the New York City Department of Health.

may be ones that I am not privy to.

Clusters in, outbreaks in New York City are the

(Continued on the following page.)

CMH

OCR

RMR

CRR

FCRR

There

Case 1:20-cv-04844-NGG-CLP Document 31-1 Filed 10/16/20 Page 77 of 127 PageID #: 819

Backenson - cross - Mastro

CROSS EXAMINATION

BY MR. MASTRO:

testimony; right, sir?

jurisdiction of the New York City Department of Health.

(Continuing.)

And as far as you know, that's true and correct

Clusters in -- outbreaks in New York City are the

There may be ones that I'm not privy to.

to his knowledge there hasn't been any outbreak or spread of

COVID 19 in any of these catholic churches in Brooklyn or

Queens.

any spread or outbreak of COVID-19 in any of the diocese's

churches; correct?

specifically originating in a church in this particular

diocese, however, that is the jurisdiction of New York City

Department of Health for investigation.

executive order; right, sir?

Correct.

Now, sir, you mentioned the CDC --

Sir, a simple question.

Commissioner Esposito said that

As far as you know, he's correct, there hasn't been

To the best of my knowledge, there have been no outbreaks

But it's the State, the Governor who imposed this

MR. MASTRO:

Your Honor, I'm having such a good

time.

to help me make sure I get it plugged in and that's my wife.

Can I please have a very brief break so I make sure she plugs

I see my battery is running low and I need my experts

MDL

RPR

CRR

CSR

Case 1:20-cv-04844-NGG-CLP Document 31-1 Filed 10/16/20 Page 78 of 127 PageID #: 820

Backenson - cross - Mastro

in the batteries so I do not lose power here.

THE COURT:

All right.

MR. MASTRO:

appreciated.

Thank you, Your Honor, much

My technical skills are lacking.

THE COURT:

(Brief recess.)

MR. SHAPIRO:

THE COURT:

MR. SHAPIRO:

THE COURT:

Let's take a two-minute

break to plug in Mr. Mastro's battery.

That's apparent.

Mr. Mastro just called me.

I'm sorry.

He is trying to get back on.

I don't know what we are getting right

now.

MR. SHAPIRO:

Your Honor, Mr. Mastro called me and

his computer had died, so he is trying to get back on as

quickly as possible.

apologize.

THE COURT:

He said in a few more minutes, I

That's all right.

We will know when he

is back.

Everyone should remain muted except the speaker.

Is there any word from Mr. Mastro?

MR. SHAPIRO:

I'll try calling him again, Your

Honor.

THE COURT:

it?

Mr. Farber, you are still there, I take

Mr. Farber?

MR. SHAPIRO:

MDL

If there is a way for Mr. Mastro to

RPR

CRR

CSR

Case 1:20-cv-04844-NGG-CLP Document 31-1 Filed 10/16/20 Page 79 of 127 PageID #: 821

Backenson - cross - Mastro

continue the cross by phone, he would do that.

THE COURT:

MR. SHAPIRO:

I will be happy

Is there a number that he should use,

Mr. Reccoppa, for calling so that he can speak?

That would be fine.

take his cross by phone, but I'm also looking for Mr. Farber.

THE COURTROOM DEPUTY:

798200928.

571-353-2300.

Then he enters

That's the dial in number.

MR. FARBER:

Can you hear me?

THE COURT:

Mr. Farber?

MR. FARBER:

Yes, Your Honor.

THE COURT:

I'm glad you are back.

waiting.

trouble with his computer.

We are still

Mr. Mastro is going to call in because he is having

MR. FARBER:

He has my sympathies.

THE COURT:

Yes, I understand that.

Thank you for

your patience, everyone.

MR. MASTRO:

Am I back?

THE COURT:

You are back.

MR. MASTRO:

My perfuse apologies to the witness

Please sit down.

and, Your Honor.

THE COURT:

All right.

You have to promise me you

will have a heart-to-heart conversation with the IT department

at Gibson Dunn before you do another one of these.

MR. MASTRO:

I promise, Your Honor.

a Blackberry.

MDL

RPR

CRR

CSR

I'm still using

Case 1:20-cv-04844-NGG-CLP Document 31-1 Filed 10/16/20 Page 80 of 127 PageID #: 822

Backenson - cross - Mastro

THE COURT:

Some people say that's the way to go.

MR. MASTRO:

Thank you, Your Honor.

THE COURT:

Let's finish up with this witness,

Okay.

please.

Try to get it done.

MR. MASTRO:

I will, Your Honor.

much longer, Your Honor.

BY MR. MASTRO:

Sir, you were asked questions about CDC policies --

THE COURT:

light coming through.

THE WITNESS:

THE COURT:

someone up speaking to you, sir.

That's better.

I don't have that

I hate to do this, but I see the sun

Wrong window.

I don't know if that's the sunlight or

Thank you very much, sir.

Go ahead,

Mr. Mastro.

MR. MASTRO:

Thank you.

Thank you, Your Honor.

familiarity with the CDC's recommendations.

that testimony?

I do.

And, sir, you know that the CDC recommends keeping,

quote, at least six feet away from other people, end quote, as

one of their recommendations in connection with COVID;

correct?

Sir, you were asked some questions earlier about your

MDL

RPR

CRR

CSR

Do you remember

Case 1:20-cv-04844-NGG-CLP Document 31-1 Filed 10/16/20 Page 81 of 127 PageID #: 823

Backenson - cross - Mastro

Correct.

And the diocese's churches are doing just that; correct?

From their testimony, it appears that way.

Thank you.

And you're aware that the CDC recommends that social

distancing, quote, is one of the best tools we have to avoid

being exposed to the virus and slowing its spread locally, end

quote?

Yes.

And that's exactly what the diocese's churches are doing,

social distancing?

You are aware of that, sir?

MR. FARBER:

Objection.

THE COURT:

Sustained.

asked and answered.

guidance as to considerations in connection with communities

of faith?

Yes.

And that's attached as Exhibit BB to the Blog

declaration; correct?

Yes.

You are aware that the CDC expressly says that, quote,

its guidance is not intended to infringe upon rights protected

by the First Amendment to the U.S. Constitution; correct?

Let's move on.

It's been

Sir, are you also aware that the CDC put out expressed

MR. FARBER:

MDL

Objection.

RPR

CRR

CSR

Case 1:20-cv-04844-NGG-CLP Document 31-1 Filed 10/16/20 Page 82 of 127 PageID #: 824

Backenson - cross - Mastro

THE COURT:

You may answer.

says.

adopt any mitigation strategies that are more stringent than

the mitigation strategies as to similarly-situated entities or

activities, end quote, you are aware of that; correct?

That is what it says.

Now, sir, I want to ask you about some of the other

activities from the other businesses and services that are in

red and orange zones that aren't restricted in any way.

I believe that is -- I believe that's what the guidance

And that, quote, No faith community should be asked to

Correct.

Mr. Farber asked you about what has been categorized

as essential businesses or services, and you said you were

familiar with those; correct, sir?

Correct.

And I'm referring you specifically to Mastro declaration,

Exhibit 5, and from the State entitled "Guidance for

determining whether a business enterprise is subject to

workforce reduction under recent executive orders."

Sir, you'll see there on the first page it describe

essential businesses or entities; correct?

five?

Exhibit No. 5.

I'm actually trying to find it.

Supplemental declaration

No, my first declaration, declaration of Randy Mastro,

MDL

RPR

CRR

CSR

Case 1:20-cv-04844-NGG-CLP Document 31-1 Filed 10/16/20 Page 83 of 127 PageID #: 825

Backenson - cross - Mastro

Okay.

I'm referring you specifically, sir, to page 4, essential

retail.

I'm sorry.

Now, essential retail, that means even in the red

zones, they're not subject to any restrictions at all;

correct?

masking and social distancing is part of that.

subject to --

They are.

They are subject to restrictions.

They are --

They are not

There is no --

THE COURT:

Go ahead, sir.

Do not over speak the witness.

They are not subject to -- to density restrictions, yes.

So among those essential retail businesses are grocery

stores, including all food and beverage stores; correct, sir?

Correct.

Does that mean liquor stores too, sir?

Liquor stores have been considered to be essential,

correct.

Liquor stores.

How about convenience stores?

They're also

considered essential?

Correct.

Hardware, appliance, and building material stores;

correct, sir?

MDL

RPR

CRR

CSR

Case 1:20-cv-04844-NGG-CLP Document 31-1 Filed 10/16/20 Page 84 of 127 PageID #: 826

Backenson - cross - Mastro

Correct.

Pet food; correct?

Correct.

Sir, you are aware that there is a Target store in one of

these red zones in Brooklyn; correct?

Correct.

And that's an essential business?

other related items?

correct?

Correct.

And Target is a big box store, very large; correct?

Correct.

this particular one, but I know compared to other Targets,

yes.

people shopping there on any given day, there's no capacity

restriction; correct?

Correct.

Staples, Staples is a hardware store; right?

No.

Staples also has hardware materials, appliances, things

like that.

correct?

trying to remember if the Staples by me was closed during the

They sell food and

Target is an essential business;

I'm not familiar with the square footage of

So that Target store can literally have hundreds of

Staples is a stationery store.

Staples would be considered an essential business;

To be honest, I believe it would.

MDL

RPR

CRR

But to be honest, I'm

CSR

Case 1:20-cv-04844-NGG-CLP Document 31-1 Filed 10/16/20 Page 85 of 127 PageID #: 827

Backenson - cross - Mastro

unessential business period.

Staples in one of these Brooklyn red zone neighborhood is open

today for business; right?

I would not.

And operating without any capacity restriction; correct?

So, sir, you wouldn't be surprised to learn that the

MR. FARBER:

I'm going to object to this line.

THE COURT:

Overruled.

You may continue.

Correct.

Staples is a big box store with hundreds of customers at

a time; correct?

Correct.

Now, sir, I want to ask you, flip to the next page,

because it describes financial institutions as essential, and

listed there are banks, insurance, payroll, accounting, even

services related to financial markets, like your broker,

right?

Correct.

And they've stayed open; correct?

capacity?

Correct.

And there you have staff working in close quarters,

sometimes even confined spaces, members of the public going

there for those services in confined spaces; correct?

They are considered essential businesses?

No restriction on

Depending on the institution.

MDL

RPR

CRR

CSR

Case 1:20-cv-04844-NGG-CLP Document 31-1 Filed 10/16/20 Page 86 of 127 PageID #: 828

Backenson - cross - Mastro

Correct, right?

Correct.

Now, sir, once again I am going to ask you about

something the Governor said.

executive order restricting services in all houses of worship

in these red and orange zones is, quote, Not a highly nuanced,

sophisticated response, end quote?

So -- I'm sorry, can you repeat the question.

Sure.

Governor's executive order restricting services of all houses

of worships in certain geographic zones is, quote, Not a

highly nuanced, sophisticated response, end quote?

quote is?

2020.

Okay.

Pardon?

Was there an objection made or something like that?

sorry?

Do you agree with the statement that the

It's a quota attributed to the Governor on October 6,

I would argue that -- I'm sorry.

Please, go ahead.

THE COURT:

objection.

Do you agree with that?

I'm sorry, do I -- do I need to know who the -- who the

Would you agree that this

I'm

You can't ask your lawyer to make an

That's not.

THE WITNESS:

I wasn't sure.

I just heard cross

talking.

THE COURT:

MDL

Just answer the question, if you can.

RPR

CRR

CSR

Case 1:20-cv-04844-NGG-CLP Document 31-1 Filed 10/16/20 Page 87 of 127 PageID #: 829

Backenson - cross - Mastro

That's all.

THE WITNESS:

I just heard cross talk.

I wasn't

sure.

been a targeted approach to -- to areas that have had high

incidence rates.

to be temporary.

Governor that this is not a policy being written by a scalpel,

this is a policy being cut by a hatchet, end quote?

agree with that?

I would not.

Would you agree with the statement attributed to the

Governor that if we can get the numbers down in the zip codes,

the anxiety comes down and we can have a smarter, more

tailored approach"?

So I think I would disagree.

I mean, I think this has

It is intended to be targeted and intended

Would you agree with the statement attributed to the

Would you

Do you agree with that?

There's a lot to unpack there.

In general, I mean, I think the goal here is to

reduce the rates, the incidence rates, the percent positive

test rates in the zones that have been identified so that we

can remain open.

The point here is I think that this is a targeted

temporary action that is being put into place in order to try

and prevent spread before this -- before the infection kind of

takes hold again in certain areas of the state.

MDL

RPR

CRR

CSR

Case 1:20-cv-04844-NGG-CLP Document 31-1 Filed 10/16/20 Page 88 of 127 PageID #: 830

Backenson - cross - Mastro

And, sir, it's your testimony that -- strike that.

You would agree that what the diocese has done

voluntarily, limiting its church masses to 25 percent of

capacity, wearing masks, social distancing at least six feet

apart, having extra precautions taken around the holy

communion, extra steps taken about entering and exiting to

promote social distancing during -- before and after the mass,

you would agree that all of those things are things that those

catholic churches should be doing; correct?

Correct.

You would also agree, would you not, that the offer, in

the context of this preliminary injunction application, to not

have congregations singing and to make sure that the cantor is

always 12 feet away from anyone else, that that also is

something that promotes safety in the catholic churches;

correct?

Eliminating risky behaviors always helps, correct.

And, again, you personally are not aware of any evidence

of any spread of COVID in any of the catholic churches in this

diocese; correct, sir?

In this diocese, in catholic churches, correct.

And would it be fair to say based on the things that this

diocese has been doing in its churches and has offered to do

going forward, that its doing all the right things to prevent

the spread of COVID in its churches?

MDL

RPR

CRR

Would that be fair to

CSR

Case 1:20-cv-04844-NGG-CLP Document 31-1 Filed 10/16/20 Page 89 of 127 PageID #: 831

Backenson - cross - Mastro

say?

among congregants who come to the churches, yes.

incidents of COVID; correct?

outbreak, but it certainly does not mean that there may not be

people who have tested positive.

had been a congregant who tested positive that necessarily

means that the measures that have been taken protected the

rest of the congregation from outbreak or spread; correct,

sir?

I think they are doing things to try to prevent spread

And they're succeeding, for the past three months, no

I don't know of no incidents of COVID.

We know of no

Since there has been no outbreak or spread, even if there

MR. FARBER:

I'm going to object.

THE COURT:

Sustained.

MR. MASTRO:

Your Honor, I don't have any further

questions of this witness at this time.

Thank you.

THE COURT:

Mr. Farber, anything else from you?

MR. FARBER:

I have a brief recross, Your Honor.

THE COURT:

Please go forward.

MR. FARBER:

Thank you, Your Honor.

THE COURT:

I'm sorry.

MR. FARBER:

Yes.

I forgot where I am.

THE COURT:

MDL

That's a redirect, right?

Redirect.

I'm sorry, Your Honor.

Okay, go ahead.

RPR

CRR

CSR

Case 1:20-cv-04844-NGG-CLP Document 31-1 Filed 10/16/20 Page 90 of 127 PageID #: 832

Backenson - redirect - Farber

MR. FARBER:

A few redirect questions.

apologies.

REDIRECT EXAMINATION

BY MR. FARBER:

for you a number of measures taken by churches in the diocese,

social distancing, masking, reduced singing, changes to the

service.

Mr. Backenson, Mr. Mastro just asked you -- he described

In the context of an area undergoing an increase in

COVID cases, are the measures Mr. Mastro described sufficient

in your view as an epidemiologist?

The measures described are the measures -- I'm sorry.

MR. MASTRO:

Your Honor, I object.

THE COURT:

He may answer.

recommended to churches throughout New York State and many, if

not all churches, are -- many of them are implementing them.

Having -- in an area of increased risk, the same --

you know, additional measures may be needed in order to try to

minimize spread from the community, throughout the community.

stores.

The measures described are measures that have been

Okay.

Now, Mr. Mastro asked you about a variety of

He has Target, Staples, and some other ones in there.

As an epidemiological matter, are those situations

the same as a church service in your view?

In many cases --

MDL

RPR

CRR

CSR

Case 1:20-cv-04844-NGG-CLP Document 31-1 Filed 10/16/20 Page 91 of 127 PageID #: 833

Backenson - redirect - Farber

MR. MASTRO:

Objection, Your Honor.

Objection this

is not even --

THE COURT:

Overruled.

You can ask on recross.

ahead.

establishments are often go in, pick something up, leave.

Being in, you know, one of these establishments for a very

short period of time, oftentimes with -- where people are not

doing things like, you know, talking, singing, chanting,

things of that nature.

different.

In many instances, they may not be.

THE COURT:

The retail

So in some ways they are very

Sir, have you ever been in a Trader

Joe's?

THE WITNESS:

I have.

THE COURT:

Go ahead.

THE WITNESS:

Right.

I can't -- I will not say that

all of them will be.

is certainly different than going into, you know, my local

Staples or my local hardware store.

definitely -- the Trader Joe's where I live still has a line

around the block because they are restricting entry and

limiting the number of people that are inside at any given

time.

THE COURT:

But, you know, going in a Trader Joe's

You know, they're

But for Trader Joe's the State isn't

doing an inspection as to the circulation of air in the Trader

MDL

RPR

CRR

CSR

Case 1:20-cv-04844-NGG-CLP Document 31-1 Filed 10/16/20 Page 92 of 127 PageID #: 834

Backenson - redirect - Farber

Joe's, with lots of people coming and going even if there is a

certain restriction of the number, there is not a restriction

on how long they can stay inside and how many aisles they can

go in, and so forth.

that's not about a big supermarket -- will have a certain

amount of activity over a long period of time by any given

individual and there are the epidemiological issues having to

do with the circulation of air and the circulation of people,

and there's no regulation of that in the state, right?

THE WITNESS:

essential business.

THE COURT:

The Trader Joe's, for instance -- and

Correct, because it's been deemed an

Risk and -- I'm sorry?

Right.

And so you enter one of these

facilities at your own risk, basically?

THE WITNESS:

function of distance and time.

distance to somebody who is positive to be able to be exposed

to that air and/or how long you are exposed to that particular

individual as well.

particular case.

THE COURT:

Correct.

And risk is typically a

So it's a function of your

It's how we define contact through a

Does the State have any rules regarding

providing early shopping for senior citizens in some of these

more crowded venues that are not subject to other rules?

other words, from just to 7:00 a.m., if you are a senior

citizen, you can go in and do your shopping to the exclusion

of other people so that you maintain social distancing and

MDL

RPR

CRR

CSR

Case 1:20-cv-04844-NGG-CLP Document 31-1 Filed 10/16/20 Page 93 of 127 PageID #: 835

Backenson - redirect - Farber

limit the number of people in the facility, does the State

have rules about that?

THE WITNESS:

To the best of my knowledge that is

something that is voluntarily being implemented by stores

themselves as opposed to there being a specific suggestion or

regulation from the State.

And the other thing, with grocery stores it's -- my

particular grocery store that I go to, for example, has all

sorts of arrows on the ground and they say that put it in a

layout of how people are supposed to flow through the store,

but they clearly do not.

being done in order to try, you know, prevent spread may not

necessarily be followed by their customers no matter what the

business or industry may be.

THE COURT:

So sometimes what businesses say is

These are steps that are implemented by

the store voluntarily to help maintain social distancing, but

it's not something that the State has mandated?

THE WITNESS:

There definitely are suggestions that

are put in in terms of the right way in terms of people flow,

and so forth.

mandate, enforcement of any of that.

But it's not -- I don't think there's a

THE COURT:

Do you have more, Mr. Farber?

MR. FARBER:

Very brief, Your Honor.

THE COURT:

Go ahead.

MDL

All right.

RPR

Thank you.

CRR

CSR

Case 1:20-cv-04844-NGG-CLP Document 31-1 Filed 10/16/20 Page 94 of 127 PageID #: 836

Backenson - redirect - Farber

BY MR. FARBER:

prior infections at the churches in the diocese.

this concerned the three or four months prior to the discovery

of the COVID clusters.

most recent clusters of the zones, is that what you're getting

at?

clusters?

I'm sorry.

I'm not understanding your question.

I'm sorry.

My fault.

Mr. Mastro asked you about alleged prior outbreaks or

I believe so.

Yes.

I believe

Are you aware of that?

I think the -- the identification of the

When was the most recent timing of the most recent

Do you recall when the clusters that resulted in the

cluster initiative were identified?

believe it's seven days of data.

increasing rate -- of increasing incidents and rates of

positive test results.

discovered?

September.

What were the State's overall positivity rates in the

three months before that, in June, July, August?

.6 or .7 percent.

Yeah.

These were based on rolling averages of -- I

So, seven previous days of

Do you recall in what month these clusters were

Approximately one percent.

MDL

RPR

On some days it was as low as

CRR

CSR

Case 1:20-cv-04844-NGG-CLP Document 31-1 Filed 10/16/20 Page 95 of 127 PageID #: 837

Backenson - redirect - Farber

would not be particularly surprising to you if a number of

churches or a great number of churches did not report

outbreaks of COVID-19?

in the community at that point in time as well.

outbreaks relevant with respect to a situation where clusters

do develop in these given areas?

outbreak or a cluster if there's less virus circulating in the

community.

community, there is more likelihood of an outbreak?

fair to say?

Correct.

Okay.

orange, yellow, do, to the best of your knowledge, reflect

data points showing higher incidents of COVID-19; is that

correct?

So, in fact, it would be -- so during that period, it

Correct.

And, in fact, is the fact that there were no prior

It is more difficult to -- it's less likely to have an

So in your view, if there's more virus circulating in the

It seemed that there was less virus circulating

Is that

And as far as you know, the areas designated red,

MR. MASTRO:

Objection to form.

THE COURT:

You may answer.

Leading his own

witness.

geographic distribution of higher incidence rates.

From the data I've seen, the clusters reflect the

MDL

RPR

CRR

CSR

Case 1:20-cv-04844-NGG-CLP Document 31-1 Filed 10/16/20 Page 96 of 127 PageID #: 838

Backenson - redirect - Farber

THE COURT:

Have you ever heard of micro clusters,

sir?

THE WITNESS:

THE COURT:

Sure.

Now, apparently, the Governor takes the

position that the orthodox community is not following red zone

rules, and that, for the most part, they never followed

general rules, even though the orthodox community is trying to

be cooperative according to the Governor.

Is that your understanding of what's going on in the

orthodox community?

THE WITNESS:

I've had experience with the orthodox

community in the past and they can be a very difficult

community to deal with.

trying to prevent, you know -- if there is illness circulating

in a portion of a community, I think our concern is trying to

prevent it from spreading into other areas of the community.

THE COURT:

THE WITNESS:

I think our main concern here is

I see.

We've seen this in other parts of the

State where we have had, you know -- I'm working on outbreaks

now in the southern tier of New York where we had clusters

associated one with a church, one with a bar and that have

basically led to broad non-cluster community outbreaks across

the entirety of three counties.

prevent here.

that are all connected to one another to turning into a large

That's what we're trying to

We're trying to prevent a small group of people

MDL

RPR

CRR

CSR

Case 1:20-cv-04844-NGG-CLP Document 31-1 Filed 10/16/20 Page 97 of 127 PageID #: 839

Backenson - redirect - Farber

This text is long and has been trimmed here. Open the source document for the complete record.

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