Two blogs in 7 day! Impressive!

I’m going to start making these shorter—I’ve realized that it takes far too long for me to prepare these, so I think I’m just going to start making them bit shorter—more readable for readers. Of course, if you have additional questions, I am here 24/7 for all your needs.

I am just stopping by to chime in on recent developments in a case we are all closely following Athletes Unleashed, Inc., v. Andrew M. Cuomo, et al., Index No. 81246/2020.  I hear so much from both sides of the isle that I just can’t trust anything anymore…

I am seeing a lot of comments out there that Athletes Unleashed, Inc. won a huge victory.  One of the more aggressive comments came from their attorney, Todd Aldinger, stating that “the judge also ruled that the governor’s directive that gyms be restricted to opening to no more than a third of their capacity or a third of their normal class size prior to the pandemic is arbitrary and capricious.” (See Harold McNeil, Barbara O’Brien, Lawyer: State Supreme Court judge again rules in favor of Athletes Unleashed, Feb. 23, 2021.)

While I love their fight, I do donate funds to the GoFundMe accounts when I see them, and wish I could find a client with enough funds to get me to take this on, for the record, since I am tracking this case pretty aggressively, I am just not seeing the correct rulings being reporting on– and while I love that this gives people hope and inspiration to keep fighting, I also don’t want people to think this horrible situation is going to simply go away once it gets in front of a Judge.

Contrary to what I am reading, here is what was actually ordered:

  • Declaring Executive Law Sec. 29-a as unconstitutional was denied.
  • Executive Order 202.3, 202.6, 202.57 and 202.68 are expired and may not be extended further.
  • The City may not impose the 33% class size against Athletes Unleashed.
  • Declaring the 33% capacity restriction as arbitrary and capricious is denied;
  • Declaring the 33% mask mandate as arbitrary and capricious is denied;

So literally at this time, the only thing that I can say comfortably here is:

  • Athlete’s Unleashed does not have to follow a 33% class size.
  • Executive Orders 202.3, 202.6, 202.57 and 202.68 are expired and may not apply against them.

Certainly not the impact that you would see from the news articles, were they seem to report massive success here.  While I am praying for a massive victory to reclaim our constitutional rights back, I’m just not seeing it from the Courts, from the Legislature, or even from the residents of New York.

How our Judges and Court System rule so narrow is beyond me.  With states reopening like FL, TX and NV, and with their economies booming, and deaths still lower than NYC, I do not know anymore how you say with a straight face that these pandemic rules and regulations are working, are necessary, are based on science or any rationale, and are even taken seriously?

Also, how Cuomo has no check to these executive orders (all arbitrary and capricious in my eyes), and then EXTEND those powers to the agencies to do his unconstitutional bidding, is also beyond me.  The case law is pretty clear from my perspective as far as what the agencies can do.

  • Agencies, as creatures of the legislature, act pursuant to specific grants of authority conferred by their creator. In discharging responsibilities, an agency is clothed with those powers expressly conferred by its authorizing statute, as well as those required by necessary implication. (See. Campagna v. Shaffer, 536 N.E.2d 368)
  • an administrative officer has no power to declare through administrative fiat that which was never contemplated or delegated by the legislature. (See. Campagna)
  • An agency cannot by its regulations effect its vision of societal policy choices, and may adopt only rules and regulations which are in harmony with the statutory responsibilities it has been given to administer. (See. Campagna)

The rules and directives of these Agencies are outright unconstitutional and if you are telling me that forcing businesses to operate their legal business at “X” capacity, or the curfews where certain institutions have to close down at a certain time, is not “effecting its vision of societal policy choices,” then clearly, I cannot read English anymore.

The Courts in New York have been just as disappointing as the rest of them. When your only hope is the Court system, who used to challenge the Emperor as recently as January 2020 on his unconstitutional provisions, and now even the Court system is either (a) rendering ineffective or obscenely narrow rulings, or (b) making up reasoning for the Emperor, which was never there to begin with, you have a very scary situation on your hands.

Stay strong.  I am not sure when this will ever end, but if you plan on residing here for the long haul, and not moving to Florida like the rest of New York, just stay strong!

Yours in law and lifts,

Vinny