NYSCEF DOC. NO. 36 SUPREME COURT STATE OF NEW YORK COUNTY OF ROCKLAND INDEX NO. 031783/2019 RECEIVED NYSCEF: o4X05/2019 b: W.D., on behalf of his minor children, A. J. and E.E., on behalf of their minor children, A. a J.J., on behalf of her minor child, L.V.G., on behalf of his four minor children; D. and R.J., on behalf of their minor children, S. K.K., on behalf of her minor children, M. L.K., on behalf of his minor child, M.K., on behalf of his minor child, V.L., on behalf of her two minor children; V.M. and A.M., on behalf of their minor child, T. and M.M., on behalf of their minor children, Y., N. K.M., on behalf of her minor children, R. M.P., on behalf of his minor children, Tr. and Te.; 9., on behalf of her minor child, M.R., on behalf of her 1minor children, R. J.R., on behalf of her minor child, T.T., on behalf of his minor child, Y.T., on behalf of her minor child, P.J. and M.O., on behalf of their minor son, C.B., on behalf of her minor child, J.H., on behalf of his minor children, J.M. and J.H.: V.M., on behalf of her minor child, J.F. and S.L., on behalf of their minor child, R.E., on behalf of her minor child M.R., on behalf of her minor child, K.F., on behalf of her minor child, C.C., on behalf of her minor child, L.C., on behalf of her minor child, J.M.D., on behalf of her minor childiren], K.D. and L.B., on behalf of his minor child, and on behalf of her minor children L.N. and J.N.: Petitioners, ?against? COUNTY OF ROCKLAND, Respondents. R5 and for a Proceeding Brought? Pursuant to Article 78 of the Practice Law and Rules To commence the statutory time period for appeals as of right 5513?a33, you are advised to serve a copy of this order, with notice of entry, upon all parties. DECISION ORDER Index No: 031783/2019 wf?ggy no .oanvniidnig NYSCEF DOC. NO. 36 RECEIVED NYSCEF: HON. ROLF M. THORSEN, A.J.S.C. Petitioners commenced {due within Article proceeding to challenge a ?Declaration of a Local State of Emergency for Rockland County" (hereinafter ?Emergency Declaration") issued by Edwin J. Day, the County Executive of Rockland County, on March 26, 2019 and amended on March 28, 2019. The Emergency Declaration, which was issued ix: response to a: measles outbreak ix: Rockland {busty pursuant to Executive Law ?24, provides, in relevant part, as follows: I. Prohibitions From 12:01 March 27, 2019 to 11:59 April 25, 2019, no parent or guardian of a minor or infant under the age of 18 shall cause, allow, permit, or suffer a minor or infant under their supervision, to enter any place of public assembly in Rockland County, if that ininor tn: infant .is run; vaccinated against measles for any reason other than being serologically immune to measles as documented by a physician, or prevented from receiving a measles vaccination for a medical reason documented by a physician, or because the infant is under the age of 6 months. The Emergency Declaration defines ?a place of public assembly? as: ?a place where' more than 10 persons are intended to congregate for purposes such as civic, governmental, social, or religious functions, or for recreation or shopping, or for food cm: drink consumption, or awaiting transportation, or for daycare or educational purposes, or for medical treatment. A place of public assembly shall also include public transportation vehicles, including but not limited to, publicly or privately owned buses or trains, but does not include taxi or livery vehicles.? Petitioners herein are the parents of children Emergency Declaration in that their children a who are not vaccinated pursuant to a religious exemption are now excluded from attending school and other places of public assembly.1 Thus, Petitioners commenced the within Article 78 proceeding seeking an Order declaring the Emergency Declaration to be null and void on the grounds that the Emergencv Declaration is, inter ?alia, arbitrary and capricious and contrary to law. Upon the filing of 1 It is undisputed that the schools attended by Petitioners? children have no reported cases of the measles. Page 2 of Km ?217R?g/9019 NYSCEF DOC. N0. 36 RECEXVED NYSCEF: 04/05/2019 their Petition, Petitioners also moved, by way of Order to Show Cause, for temporary injunctive relief, an Order temporarily enjoining Respondent from enforcing the Emergency Declaration and permitting Petitioners? children to return to school and otherwise assemble in public places. Respondent opposes the issuance of a stay. The Court has considered the following papers: 1. Order to Show Cause, Petition, Sussman Affirmation and Exhibits 1 and 2 attached thereto, Declaration of Dr. Hendrieka Fitzpatrick, and Petitioners? Affidavits; and 2. Respondent?s Memorandum of Law in Opposition to Order to Show Cause and attachment. Having read the foregoing papers and having heard arguments rrom counsel on April 4, 2019 and due consideration having been given, the Court decides as follows: It is wellwsettled that in order obtain a preliminary injunction, the moving party must establish (1) a likelihood of success on the merits, (2) irreparable injury absent a preliminary injunction, and (3) that the equities balance in his or her favor.? Matter of Goldfarh v. Ramaoo, 167 1009, 1010 (2d Dept. 2018)(Internal citations omitted). Whether ??to grant or deny a preliminary injunction lies within the sound discretion of the Supreme Court.?" Id., ouotino, Matter of Armanida Realtv Corp. v. Town (If Oyster Ekmm E26 894, 894?895 Uhi Sept. 2015). Applied here, the Court finds that Petitioners have established their entitlement to a preliminary injunction. ?To establish a likelihood ch success on time merits, the movant must show its right to a preliminary injunction is plain on the facts of the However, the existence of a ihctual dispute will not bar the imposition of a preliminary injunction if it is necessary to preserve the status guo and the party to be enjoined will suffer no great hardship as a result of its issuance.? Melvin v. Union College, 195 447, 448 (2d Dept. 1993)(lnternal citations omitted}. Here, ?etitioners' likelihood of success on the Inerits does not center around (iisputemi facts. Rather, Petitioners? likelihood of success on the merits turns on a legal issue, whether Mr. Day had the authority pursuant to Executive Law ?24 to issue the Emergency Declaration. As expressly stated ill the Emergency Declaration, Mr. Day cited to Executive Law ?24 as the legal basis for which he issued the Emergency Declaration.2 Section 24 (if the Executive Law, entitled ?Local state of emergency; local emergency ordersinrchief executive,? states, in relevant part: 2 Specifically, the Emergency Beclaration states, in relevant part: ?Pursuant to the powers vested in me, by virtue of Executive Law ?24, hereby continue the Declaration of a Local State of Emergency for Rockland County dated March 26, the Measles Outbreak Emergency Directive. gee, Petitioners' Exhibit 1. Page 3 of .. .me NYSCEF DOC. NO. 36 an ?To 431.}. v.4 1. Notwithstanding any inconsistent provision of law, general or special, in the event of a disaster,_ rioting, catastrophe, or similar public emergency within the territorial limits of any cmunty, city, town village, or if! the event of reasonable apprehension of immediate danger thereof, and upon a finding by the chief executive thereof that the public safety is imperiled thereby, such chief executive may proclaim a local state of emergency within any part or all of the territorial limits of such local 2. A local emergency order shall be effective from the time and in the manner? prescribed iJ1 the Such. orders shall cease ix) be in effect five days after promulgation or upon declaration by the chief executive that the state of emergency no longer exists, whichever occurs sooner. The chief executive nevertheless, may extend such orders for additional periods not to exceed five days each during the pendency of the local state of emergency. Executive Law ?24.3 As the definition of ?disaster? set forth in Executive Law includes ?epidemic," Respondent arguesthat Mr. Day was well within his authority to issue the Emergency Declaration. As ?epidemic? is not defined within Executive Law ?24, the Court must look to its ordinary meaning. See, People v. alevnikov, 31 383, 397 a word used in a statute is not defined in the statute, dictionary definitions serve as ?useful guideposts? ill determining t?ua word?s ?ordinary? and ?commonly understood? meaning.?) Thus, an ?epidemic? is defined an; ?an outbreak of disease that spreads quickly and affects many inciixridzial_s at tine sarne tiJne se