SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

722
CA 22-01133
PRESENT: SMITH, J.P., CURRAN, BANNISTER, OGDEN, AND NOWAK, JJ.

IN THE MATTER OF GEORGE BORRELLO, NEW YORK

STATE SENATOR, CHRIS TAGUE, NEW YORK STATE
ASSEMBLYMAN, MICHAEL LAWLER, NEW YORK STATE
ASSEMBLYMAN, AND UNITING NYS, LLC,
PETITIONERS-PLAINTIFFS-RESPONDENTS,

V MEMORANDUM AND ORDER

KATHLEEN C. HOCHUL, NEW YORK STATE GOVERNOR,

MARY T. BASSETT, NEW YORK STATE COMMISSIONER
OF HEALTH, NEW YORK STATE DEPARTMENT OF HEALTH
AND PUBLIC HEALTH AND HEALTH PLANNING COUNCIL,
RESPONDENTS-DEFENDANTS-APPELLANTS.

LETITIA JAMES, ATTORNEY GENERAL, ALBANY (JONATHAN D. HITSOUS OF

COUNSEL), FOR RESPONDENTS-DEFENDANTS-APPELLANTS.

COX LAWYERS, PLLC, BRONXVILLE (ROBERTA A. FLOWER COX OF COUNSEL), FOR

PETITIONERS-PLAINTIFFS-RESPONDENTS.

GREGORY DOLIN, WASHINGTON, DC, FOR NEW CIVIL LIBERTIES ALLIANCE,

AMICUS CURIAE.

Appeal from a judgment (denominated order and judgment) of the

Supreme Court, Cattaraugus County (Ronald D. Ploetz, A.J.), entered
July 11, 2022, in a proceeding pursuant to CPLR article 78 and
declaratory judgment action. The judgment adjudged 10 NYCRR 2.13
null, void, and unenforceable and permanently enjoined respondents
from enforcing and from readopting that regulation.

It is hereby ORDERED that the judgment so appealed from is

unanimously reversed on the law without costs and the third amended
petition-complaint is dismissed.

Memorandum: At the outset of the COVID-19 pandemic, the Governor

of the State of New York declared a state disaster emergency and
authorized the Commissioner of respondent-defendant New York State
Department of Health (DOH) to promulgate emergency regulations and
amend the State Sanitary Code (see Executive Order [A. Cuomo] No. 202
[9 NYCRR 8.202]). DOH responded by promulgating and then regularly
readopting a series of emergency regulations, including 10 NYCRR 2.13,
which replaced preexisting related regulations and set forth isolation
and quarantine procedures aimed at controlling the spread of highly
contagious communicable diseases. DOH eventually expressed its intent
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to adopt 10 NYCRR 2.13 permanently.

Petitioners-plaintiffs (petitioners), consisting of three members

of the New York State Legislature (legislator petitioners) and an
advocacy organization (organization petitioner), commenced this hybrid
CPLR article 78 proceeding and declaratory judgment action seeking,
among other things, a declaration that respondents-defendants
(respondents) promulgated the subject regulation in violation of the
State Constitution and the separation of powers doctrine and that the
regulation is invalid, as well as an injunction preventing respondents
from implementing or enforcing the regulation. Supreme Court, without
addressing whether petitioners had standing despite respondents having
raised that threshold issue in their answer and opposition papers,
determined that respondents violated the separation of powers doctrine
in promulgating the regulation by exceeding the scope of their
delegated powers and encroaching upon the legislative domain of
policymaking. The court therefore adjudged 10 NYCRR 2.13 null, void,
and unenforceable and permanently enjoined respondents from enforcing
and from readopting that regulation. Respondents appeal, and we now
reverse the judgment and dismiss the third amended petition-complaint
on the ground that petitioners lack standing.

“Whether a person seeking relief is a proper party to request an

adjudication is an aspect of justiciability which, when challenged,
must be considered at the outset of any litigation” (Society of
Plastics Indus. v County of Suffolk, 77 NY2d 761, 769 [1991]).
“Standing is a threshold determination, resting in part on policy
considerations, that a person should be allowed access to the courts
to adjudicate the merits of a particular dispute that satisfies the
other justiciability criteria” (id.). “Under the common law, there is
little doubt that a ‘court has no inherent power to right a wrong
unless thereby the civil, property or personal rights of the plaintiff
in the action or the petitioner in the proceeding are affected’ ” (id.
at 772, quoting Schieffelin v Komfort, 212 NY 520, 530 [1914]; see
Matter of Mental Hygiene Legal Serv. v Daniels, 33 NY3d 44, 50
[2019]). “Related to this principle is ‘a general prohibition on one
litigant raising the legal rights of another’ ” (Daniels, 33 NY3d at
50, quoting Society of Plastics Indus., 77 NY2d at 773). Thus, if the
issue of standing is raised, “[a] petitioner challenging government
agency action pursuant to an article 78 petition has the burden of
demonstrating an injury in fact and that the alleged injury falls
within the zone of interests or concerns sought to be promoted or
protected by the statutory provision under which the [government] has
acted” (Matter of Stevens v New York State Div. of Criminal Justice
Servs., — NY3d —, —, 2023 NY Slip Op 05351, *3 [2023] [internal
quotation marks omitted]; see Daniels, 33 NY3d at 50; New York State
Assn. of Nurse Anesthetists v Novello, 2 NY3d 207, 211 [2004]). “The
injury-in-fact requirement necessitates a showing that the party has
an actual legal stake in the matter being adjudicated and has suffered
a cognizable harm . . . that is not tenuous, ephemeral, or conjectural
but is sufficiently concrete and particularized to warrant judicial
intervention” (Daniels, 33 NY3d at 50 [internal quotation marks
omitted]; see Stevens, — NY3d at —, 2023 NY Slip Op 05351, *3; New
York State Assn. of Nurse Anesthetists, 2 NY3d at 214; Society of
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Plastics Indus., 77 NY2d at 772).

Addressing first respondents’ contention that the legislator

petitioners lack standing, we note that “[c]ases considering
legislator standing generally fall into one of three categories: lost
political battles, nullification of votes and usurpation of power”
(Silver v Pataki, 96 NY2d 532, 539 [2001], rearg denied 96 NY2d 938
[2001]). “Only circumstances presented by the latter two categories
confer legislator standing” (id.). Thus, “in limited circumstances,
legislators do have . . . standing to sue when conduct unlawfully
interferes with or usurps their duties as legislators” (id. at 542).
Nonetheless, to confer legislator standing, the alleged action must
have caused “a direct and personal injury [that] is . . . within a
legislator’s zone of interest and . . . represents a concrete and
particularized harm” (id. at 540 [internal quotation marks omitted];
see Matter of Townsend v Spitzer, 69 AD3d 1026, 1027 [3d Dept 2010],
lv denied 15 NY3d 702 [2010]; Matter of Montano v County Legislature
of County of Suffolk, 70 AD3d 203, 216 [2d Dept 2009]; see generally
Raines v Byrd, 521 US 811, 818-830 [1997]). When there is no vote
nullification and a legislator otherwise “suffer[s] no direct,
personal injury beyond an abstract institutional harm,” the legislator
lacks standing (Silver, 96 NY2d at 540; see Montano, 70 AD3d at 215-
216; Urban Justice Ctr. v Pataki, 38 AD3d 20, 25-26 [1st Dept 2006],
appeal dismissed & lv denied 8 NY3d 958 [2007]; see generally Raines,
521 US at 821, 826, 829).

In the case before us, “[n]o vote nullification [is] alleged”

(Silver, 96 NY2d at 540) inasmuch as the legislator petitioners have
expressly disclaimed any reliance on that category of legislator
standing, and thus only the usurpation category is at issue. With
respect to that category, we conclude that the legislator petitioners
failed to fulfill the injury-in-fact requirement to establish standing
inasmuch as we discern no allegation of “a direct and personal injury”
that “represents a concrete and particularized harm” (id. [emphasis
added and internal quotation marks omitted]; see Urban Justice Ctr.,
38 AD3d at 25; see also Montano, 70 AD3d at 215-216). The legislator
petitioners, who sued in their official capacities, alleged in the
operative pleading that respondents, in promulgating the challenged
regulation, exceeded their executive powers, thereby usurping the
power of the legislator petitioners “and all New York State
legislators similarly situated” by prohibiting them from performing
their duties to represent their constituents and to make laws on
behalf of the people of New York. The legislator petitioners
specifically alleged that respondents violated the separation of
powers doctrine because the ability to make laws lies with the
legislature and yet respondents had “exceeded the scope of their
authority, . . . abused their regulat[ion-]making power, and . . .
impermissibly crossed into the realm of law-making to the detriment of
[the legislator petitioners] and all those legislators similarly
situated.” Indeed, regarding the purported usurpation of their power,
the legislator petitioners alleged that they sustained the “same
injury” as all other legislators. Inasmuch as the legislator
petitioners merely asserted an alleged harm to the separation of
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powers shared by the legislative branch as a whole, they failed to

establish that they suffered a “direct, personal injury beyond an
abstract institutional harm” (Silver, 96 NY2d at 540 [emphasis added];
see Urban Justice Ctr., 38 AD3d at 25; see also Montano, 70 AD3d at
215-216; see generally Raines, 521 US at 821). Unlike circumstances
in which a legislator demonstrates a concrete, personal injury arising
from, for example, deprivation of a specific statutory right to
participate in the legislative process as an individual member of a
particular committee (see Dodak v State Admin. Bd., 441 Mich 547, 559-
561, 495 NW2d 539, 545-546 [1993]) or disproportionate allocation of
funds to operate a legislative office (see Urban Justice Ctr., 38 AD3d
at 25), we conclude that the injury alleged by the legislator
petitioners here “involve[s] only ‘a type of institutional injury (the
diminution of legislative power),’ which does not provide standing”
(id.). To the extent that the legislator petitioners assert that they
have standing based on alleged harm to the participation of their
constituents in the policymaking process, we reject that assertion
because the legislator petitioners “may not raise legal grievances on
behalf of others” (id. at 27; see Society of Plastics Indus., 77 NY2d
at 773).

Next, addressing respondents’ contention that the organization

petitioner lacks standing, we note that “[a]n organization can
establish standing in several ways” (Daniels, 33 NY3d at 51). An
organization “may demonstrate ‘associational standing’ by asserting a
claim on behalf of its members, provided ‘that at least one of its
members would have standing to sue, that it is representative of the
organizational purposes it asserts and that the case would not require
the participation of individual members’ ” (id., quoting New York
State Assn. of Nurse Anesthetists, 2 NY3d at 211). “Alternatively, an
organization can demonstrate ‘standing in its own right to seek
judicial relief from injury to itself and to vindicate whatever rights
and immunities the association itself may enjoy’ ” (id., quoting Warth
v Seldin, 422 US 490, 511 [1975]; see Society of Plastics Indus., 77
NY2d at 772-773). “Under this option, an organization—just like an
individual—must show that it has suffered an ‘injury in fact’ and that
its concerns fall within the ‘zone of interests’ sought to be
protected by the statutory provision under which the government agency
has acted” (Daniels, 33 NY3d at 51).

Here, we agree with respondents that the organization petitioner

also lacks standing. First, the organization petitioner failed to
demonstrate that “ ‘at least one of its members would have standing to
sue’ ” (id.). The organization petitioner did not claim that any of
its members had been personally subjected to isolation and quarantine
under any regulation, and the affidavits of certain members of the
organization petitioner setting forth potential impacts of an
isolation and quarantine order on others fail to establish that any
member “has suffered a cognizable harm . . . that is not tenuous,
ephemeral, or conjectural but is [instead] sufficiently concrete and
particularized to warrant judicial intervention” (id. at 50 [internal
quotation marks omitted]; see Rudder v Pataki, 93 NY2d 273, 279
[1999]). Insofar as the organization petitioner alleged the
generalized concern that promulgation of the regulation deprived its
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members of a voice in the policymaking process, the organization

petitioner failed to “articulate any direct injury to its [members],
other than the injury every citizen allegedly suffers by reason of the
challenged [action] of the . . . executive branch[ ]” (Urban Justice
Ctr., 38 AD3d at 24; see Matter of Brennan Ctr. for Justice at NYU
Sch. of Law v New York State Bd. of Elections, 159 AD3d 1301,
1304-1305 [3d Dept 2018], lv denied 32 NY3d 912 [2019]; Schulz v
Cuomo, 133 AD3d 945, 947 [3d Dept 2015], appeal dismissed 26 NY3d 1139
[2016], lv denied 27 NY3d 907 [2016], reconsideration denied 27 NY3d
1047 [2016]; see generally Matter of Transactive Corp. v New York
State Dept. of Social Servs., 92 NY2d 579, 587 [1998]). Second, we
conclude for the same reason that the organization petitioner lacks
standing to bring the challenge in its own name inasmuch as it “has
failed to allege a personally concrete and demonstrable injury
distinct from that suffered by the public at large” (Urban Justice
Ctr. v Silver, 66 AD3d 567, 568 [1st Dept 2009]).

Finally, we are cognizant that “standing rules should not be

applied in an overly restrictive manner where the result would be to
completely shield a particular action from judicial review” (Stevens,
— NY3d at —, 2023 NY Slip Op 05351, *3 [internal quotation marks
omitted]). However, inasmuch as the legislature retains its power to
address the regulation and there exists a large pool of potential
challengers to the regulation who could assert a concrete and
particularized harm, we conclude that “this is not a case where to
deny standing to these [petitioners] would insulate government action
from judicial scrutiny” (Rudder, 93 NY2d at 280; see Society of
Plastics Indus., 77 NY2d at 779).

Entered: November 17, 2023 Ann Dillon Flynn

Clerk of the Court