NEW YORK State COMPLAINT

CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Donohue et al v. Hochul et al CASE NO.: 21 – CV

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Appendices

Exhibits

Memo of Law

Memorandum of Law in Support of Preliminary Injunction

Pre Hearing Correspondence

11/15/2021 Plaintiffs’ Request for Documents Provided in L.T. et al v. Howard Zucker
11/16/2021 New York State Letter in Opposition
11/16/2021 Plaintiffs’ Response to Defendants’ Objection Stamped Letter from Donohue et al.
11/18/2021 Plaintiffs’ Correspondence with the Documents from L.T., et al v. Zucker 2nd Letter Re Lower Hudson Council of School Superintendents
11/18/2021 Plaintiff’s Supplemental Correspondence with Letter from Lower Hudson Council of Superintendents Request for documents on which the State relied in implementing its mask mandate

New York State Memo of Law in Opposition to Plaintiffs’ Preliminary Injunction

Declaration of Johanne E. Morne, Deputy Director for Community Health for NYSDOH, in Support of State Defendants’ Opposition to Preliminary Injunction

Declaration of Jaclyn Saffir, Assistant Attorney General, in Support of State Defendants’ Opposition to Preliminary Injunction

Exhibit A: M.F. v. Cuomo, et al: Order [Albany County, 607277-21] (dated June 21, 2021)

New York City’s Memorandum of Law in Opposition to Plaintiffs’ Motion for a Preliminary Injunction

Declaration of Jay Varma, NYC Mayor’s Sr. Advisor for Public Health, in Support of City Defendants’ Opposition to Preliminary Injunction

Declaration of Josh Morgenstern, Sr. Advisor of Division of Specialized Instruction and Student Support, in Support of City Defendants’ Opposition to Preliminary Injunction

Exhibit A: Allied Pediatric Health Care Letter, Re: Medical Exemption on Behalf of E.F.
Exhibit B: P37R: David Marquis School of the Arts Denial Letter (E.F. Medical Exemption)

Declaration of Marilyn Richter, NYC Attorney, in Support of City Defendants’ Opposition to Preliminary Injunction

Exhibit A: USDOE OCR Investigations in Five States Regarding Prohibitions of Universal Indoor Masking
Exhibit B: USDOE OCR Letter to Superintendent Hofmeister
Exhibit C: E.T., et al v. Mike Morath, et al [21-cv-00717-LY] Statement of Interest of the United States of America
Exhibit D: Chief Judge Laura Taylor Swain Letter Re: Restrictions on Entry to the Courthouses
Exhibit E: United States Court of Appeals Second Circuit: Notice of Proposed Rule Masking
Exhibit F: Supreme Court of the United States Office of the Clerk: Oral Argument Session Rules (dated Sept. 27, 2021)

NEW YORK State COMPLAINT

CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Donohue et al v. Hochul et al CASE NO.: 21 – CV

Appendices

Exhibits

Pre Hearing Correspondence

11/15/2021 Plaintiffs’ Request for Documents Provided in L.T. et al v. Howard Zucker

11/16/2021 New York State Letter in Opposition

11/16/2021 Plaintiffs’ Response to Defendants’ Objection Stamped Letter from Donohue et al.

11/18/2021 Plaintiffs’ Correspondence with the Documents from L.T., et al v. Zucker 2nd Letter Re Lower Hudson Council of School Superintendents

11/18/2021 Plaintiff’s Supplemental Correspondence with Letter from Lower Hudson Council of Superintendents Request for documents on which the State relied in implementing its mask mandate

New York State Memo of Law in Opposition to Plaintiffs’ Preliminary Injunction

Exhibit A: 61-1 Repeal of 66-3, replace with Section 2.60 [10 NYCRR]

Exhibit B: 61-1 COVID-19 Updates (dated June 7, 2021): Governor Cuomo Announces School Districts Can Allow Students to Remove Masks Outdoors

Exhibit C: 61-1 COVID-19 Updates (dated June 15, 2021): Governor Cuomo Announces COVID-19 Restrictions Lifted as 70% of Adult New Yorkers Have Received First Dose of COVID-19 Vaccine

Exhibit D: 61-1 COVID-19 Vaccines (dated September 11, 2021): Governor Cuomo Announces New York Ending COVID-19 State Disaster Emergency on June 24

Exhibit E: 61-1 COVID-19 Vaccines (dated August 5, 2021): Statement from New York State Department of Health Commissioner Dr. Howard Zucker

Exhibit F: 61-1 State Education Department Issues Health and Safety Guide to Reopen New York State Schools (dated August 12, 2021)

Exhibit H: 61-1 On First Daye in Office, Governor Hochul Announces Comprehensive Plan to Help Ensure a Safe, Productive Return to Schools This Fall (dated Aug. 24, 2021)

Exhibit I: 61-1 NYS DOH: Commissioner’s Determination on Indoor Masking Pursuant to 10 NYCRR 2.60 (Aug. 27, 2021)

Exhibit J: 61-1 NYS DOH: Interim Guidance for Classroom Instruction in P-12 Schools During the 2021-2022 Academic Year (dated Sept. 2, 2021)

Exhibit K: 61-1 Governor Hochul Announces Series of Universal Requirements to Protect New Yorkers amid Rise of Delta Variant (Sept. 15, 2021)

Exhibit L: 61-1 CDC: Emerging SARS-CoV-2 Variants (updated Jan. 3, 2021)

Exhibit M: 61-1 CDC: Delta Variant: What We Know About the Science (updated Aug. 26, 2021)

Exhibit N: 61-1 Morbidity and Mortality Weekly Report: Hospitalizations Associated with COVID-19 Among Children and Adolescents – COVID NET, 14 States, March 1, 2020–August 14, 2021, Miranda J. Delahoy, PhD, et al. (dated Sept. 10, 2021)

Exhibit O: 61-1 Morbidity and Mortality Weekly Report: Trends in COVID-19 Cases, Emergency Department Visits, and Hospital Admissions Among Children and Adolescents Aged 0-17 Years–United States, August 2020-August 2021, David A. Siegel, MD, et al (dated Sept. 10, 2021)

Exhibit P: 61-2 Children’s Hospital Association & AAP: Children and COVID-19: State Data Report (dated Sept. 2, 2021) [**No NYS Data collected**]

Exhibit Q: 61-2 Children’s Hospital Association & AAP: Children and COVID-19: State Data Report (dated Sept. 9, 2021) [**No NYS Data collected**]

Exhibit R: 61-2 FDA News Release: FDA Authorizes Pfizer-BioNTech COVID-19 Vaccine for Emergency Use in Children 5 through 11 Years of Age (dated Oct. 29, 2021)

Exhibit S: 61-3 ARTICLE: ‘Every case except one was delta’: UB scientists urge vaccines, masking as delta variant rages, Nick Veronica (Aug. 13, 2021)

Exhibit T: 61-3 CDC: Delta variant: What We Know About the Science (updated Aug. 26, 2021)

Exhibit U: 61-3 CDC: Science Brief: COVID-19 Vaccines and Vaccination (updated Sept. 15, 2021)

Exhibit V: 61-4 CDC: SARS-CoV-2 Variant Classifications and Definitions (updated Sept. 11, 2021)

Exhibit W: 61-4 WHO: Transmission of SARS-CoV-2: implications for infection prevention precautions (Mar. 29, 2020)

Exhibit X: 61-4 WHO: Coronavirus disease (COVID-19): How is it transmitted? (updated Oct. 20, 2020)

Exhibit Y: 61-4 CDC Updates “How COVID is Spread” Webpage (Oct. 5, 2020)

Exhibit Z: 61-4 CDC: Scientific Brief: SARS-CoV-2 Transmission (updated May 7, 2021)

Exhibit AA: 61-5 CDC: Interim Clinical Guidance for Management of Patients with Confirmed Coronavirus Disease (COVID-19) (updated Feb. 12, 2021)

Exhibit BB: 61-5 CDC: Guidance for COVID-19 Prevention in K-12 Schools (dated Aug. 5, 2021)

Exhibit CC: 61-5 Proceedings of the National Academy of Sciences of the United States of America: RESEARCH ARTICLE: Identifying airborne transmission as the dominant route for the Spread of COVID-19, Renyi Zhang, et al. (June 30, 2020)

Exhibit DD: 61-5 OPINION ARTICLE: The Hill: Mask Mandates are constitutionally permissible, by Shelley Cavalieri, et al. (date unknown)

Exhibit EE: 61-5 (Unsigned) Letter from U.S. Food & Drug Administration (FDA), Re: Manufacturers of Face Masks; Health Care Personnel; Hospital Purchasing Departments and Distributors; and Any Other Stakeholders (dated Apr. 24, 2020)

Exhibit FF: 61-5 Annals of Internal Medicine: Effectiveness of Adding a Mask Recommendation to Other Public Health Measures to Prevent SARS-CoV-2 Infection in Danish Mask Wearers, Henning Bundgaard, DMSc, et al (April & May 2020)

Exhibit GG: 61-5 The New England Journal of Medicine: SARS-CoV-s Transmission among Marine Recruits during Quarantine (dated Dec. 17, 2020), A.G. Letizia I. Ramos, et al.

Exhibit HH: 61-5 WHO: Advice on the use of masks in the context of COVID-19, Interim guidance (dated June 5, 2020)

Exhibit II: 61-5 WHO: Coronavirus Disease (COVID-19) advice for the public: when and how to use masks (updated Dec. 1, 2020)

Exhibit JJ: 61-5 Coronavirus disease (COVID-19): Children and Masks (dated Aug 21, 2020)

Exhibit KK: 61-5 CDC: Scientific Brief: Community Use of Cloth Masks to Control the Spread of SARS-CoV-2 (updated Nov. 20, 2020)

Exhibit LL: 61-5 An evidence review of face masks against COVID-19, Jeremy Howard, et al (Dec. 5, 2020)

Exhibit MM: 61-5 USA Today ARTICLE: Fact check: Dr. Anthony Fauci did not say masks contributed to Spanish flu deaths, Miriam Fauzia (dated Nov. 12, 2020)

Exhibit NN: 61-5 ARTICLE: Experts Sets Straight 5 Common Face Mask Myths (SOURCE UNKNOWN) by UnityPointHealth (dated Aug. 29, 2021)

Exhibit OO: 61-6 ACTA PAEDIATRICA Mini Review: The impact of face masks on children–A mini review, Martin Eberhart, et al (dated Dec. 9, 2020)

Exhibit PP: 61-6 JAMA Network: Original Investigation: Assessment of Respiratory Function in Infants and Young Children Wearing Face Masks During the COVID-19 Pandemic, Riccardo Lubrano, MD, et al. (Mar. 2, 2021)

Exhibit QQ: 61-6 CDC: Guidance for COVID-19 Prevention in K-12 Schools (updated Aug. 5, 2021)

Exhibit RR: 61-6 CDC: Guidance for Wearing Masks (updated Apr. 19, 2021)

Exhibit SS: 61-6 NYS Publication: Reopening New York: Guidelines for In-Person Instruction at Pre-K to Grade 12 Schools (date unknown)

Exhibit TT: 61-6 NYS DOH: Interim Guidance for In-Person Instruction at Pre-K to Grade 12 Schools During the COVID-19 Public Health Emergency (as of June 7, 2021)

Exhibit UU: 61-6 CDC: Help Stop the Spread of COVID-19 in Children (updated Sept. 17, 2020)

Exhibit VV: 61-6 CDC: Summary of Recent Changes (updates as of Dec. 18, 2020)

Exhibit WW: 61-6 CDC: Science Brief: Transmission of SARS-CoV-2 in K-12 Schools (updated Mar. 19, 2021)

Exhibit XX: 61-6 UNICEF: COVID-19 and School Closure: One Year of Education Disruption (date unknown)

Exhibit YY: 61-6 UNICEF: Considerations for school-related public health measures in the context of COVID-19 (dated Sept. 14, 2020)

Exhibit ZZ: 61-6 American Academy of Pediatrics: COVID-19 Guidance for Safe Schools (updated July 2021)

Exhibit AAA: 61-7 The ABC Science Collaborative (North Carolina’s Plan A) (date unknown)

Exhibit BBB: 61-7 Pediatrics Journal: Incidence and Secondary Transmission of SARS-CoV-2 Infections in Schools, Kanecia O. Zimmerman, MD, et al. (Jan. 5, 2021)

Exhibit CCC: 61-7 The ABC Science Collaborative, Re: “The Reopen Our Schools Act of 2021” (S.L. 2021-4) (dated June 30, 2021)

Exhibit DDD: 61-7 CDC: Corrected Report, Rebecca B. Hershow, PhD, et al. (dated Mar. 26, 2021)

Exhibit FFF: 61-7 Mortality and Morbidity Weekly Report: Mask Use and Ventilation Improvements to Reduce COVID-19 Incidence in Elementary Schools–Georgia, November 16–December 11, 2020. Jenna Gettings, DVM, et al. (May 21, 2021)

Exhibit GGG: 61-7 Mortality and Morbidity Weekly Report: COVID-19 Cases and Transmission in 17 K-12 Schools–Wood County, Wisconsin, August 31–November 29, 2020. Amy Falk, MD, et al. (Jan. 26, 2021)

Exhibit HHH: 61-7 Journal of the Pediatric Infectious Diseases Society: SARS-CoV-2 Incidence and Transmission in 48 K-12 Virginia Public Schools During Community Surge. Leah C. Rowland, et al (Mar. 18, 2021)

Exhibit III: 61-7 SARS-CoV-2 Acquisition and Immune Pathogenesis Among School-Aged Learners in Four Diverse Schools. Dan M. Cooper, et al. (dated June 17, 2021)

Exhibit JJJ: 61-7 Mortality and Morbidity Weekly Report: Association Between K-12 School Mask Policies and School Associated COVID-19 Outbreaks–Maricopa and Pima Counties, Arizona, July-August 2021. Megan John, PhD, et al. (Sept. 24, 2021)

Exhibit KKK: 61-7 Mortality and Morbidity Weekly Report: Pediatric COVID-19 Cases in Counties With and Without School Mask Requirements–United States, July 1 – September 4, 2021 (dated Sept. 24, 2021) Samantha E. Budzyn, MPH, et al.

Exhibit LLL: 61-7 ARTICLE: Today.com: State-by-State guide to school face mask mandates. Kait Hanson (Aug. 10, 2021)

Exhibit A: M.F. v. Cuomo, et al: Order [Albany County, 607277-21] (dated June 21, 2021)

New York City’s Memorandum of Law in Opposition to Plaintiffs’ Motion for a Preliminary Injunction

Exhibit A: 64-1 Commissioner’s Determination on Indoor Masking Pursuant to 10 NYCRR 2.60 (dated Aug. 27, 2021)

Exhibit B: 64-2 Interim NYSDOH Guidance for Classroom Instruction in P-12 Schools During the 2021-2022 Academic Year (dated Sept. 2, 2021)

Exhibit C: 64-2 Health and Safety Guide for the 2021-2022 School Year (dated August 2021)

Exhibit D: 64-4 CDC Guidance for COVID-19 Prevention in K-12 Schools (Updated Nov. 5, 2021)

Exhibit P: 61-2 Children’s Hospital Association & AAP: Children and COVID-19: State Data Report (dated Sept. 2, 2021) [No NYS Data collected]

Exhibit Q: 61-2 Children’s Hospital Association & AAP: Children and COVID-19: State Data Report (dated Sept. 9, 2021) [No NYS Data collected]