                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: February 25, 2016                   520977
________________________________

In the Matter of WAYNE SPENCE,
   as President of New York
   State Public Employees
   Federation, AFL-CIO, et al.,
                    Appellants,
      v                                     MEMORANDUM AND ORDER

NIRAV R. SHAH, as Commissioner
   of Health, et al.,
                    Respondents.
________________________________


Calendar Date:   January 12, 2016

Before:   Peters, P.J., McCarthy, Rose and Lynch, JJ.

                             __________


      Lisa M. King, New York State Public Employees Federation,
AFL-CIO, Albany (Katherine J. Vorwald of counsel), for
appellants.

      Eric T. Schneiderman, Attorney General, Albany (Allyson B.
Levine of counsel), for respondents.

                             __________


Lynch, J.

      Appeal from a judgment of the Supreme Court (Hard, J.),
entered June 10, 2014 in Albany County, which dismissed
petitioners' application, in a proceeding pursuant to CPLR
article 78, to review certain regulations promulgated by
respondent Commissioner of Health.

      In 2013, respondent Department of Health (hereinafter DOH)
adopted a regulation, together with conforming regulatory
amendments, that required health care personnel who had not been
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vaccinated for influenza to wear a surgical or procedural mask
during influenza season when in areas where patients or residents
may be present (see 10 NYCRR 2.59; see also 10 NYCRR 405.3,
415.19, 751.6, 763.13, 766.11, 793.5).1 Petitioners, the
President of the Public Employees Federation and four registered
nurses represented by that union, commenced this proceeding
seeking to annul 10 NYCRR 2.59 and the conforming regulatory
amendments. They asserted that when promulgating the regulation,
DOH acted in an arbitrary, capricious and irrational manner, and
also that DOH exceeded its authority and violated the separation
of powers doctrine.2 Supreme Court dismissed the petition and
petitioners appeal.

      Initially, we find that, although minor amendments were
made to 10 NYCRR 2.59 in November 2014 when this appeal was
pending, those amendments do not render the appeal moot. Indeed,
both parties urged in their appellate briefs that the amendments
did not impact the appeal; however, petitioners changed their
position and argued mootness in their reply brief. Since
mootness can be raised at any time (see Gabriel v Prime, 30 AD3d
955, 956 [2006]), we briefly address such argument. "Where the
case presents a live controversy and enduring consequences
potentially flow from the [judgment] appealed from, the appeal is
not moot" (Matter of New York State Commn. on Jud. Conduct v
Rubenstein, 23 NY3d 570, 576 [2014] [citations omitted]; see
Matter of Veronica P. v Radcliff A., 24 NY3d 668, 671 [2015]).
The 2014 amendments narrowed slightly the applicability of the


    1
        The regulation was proposed by respondent Public Health
and Health Planning Council pursuant to its authority under
Public Health Law § 225, and it was approved by respondent
Commissioner of Health. The Council and Commissioner are part of
DOH, and we will herein reference DOH rather than each of these
separate respondents.
    2
        Inasmuch as petitioners raised a facial challenge to the
constitutionality of a regulation, we convert their CPLR article
78 proceeding to a combined CPLR article 78 proceeding and action
for declaratory judgment (see Matter of Carney v New York State
Dept. of Motor Vehs., 133 AD3d 1150, 1151 n 1 [2015]).
                              -3-                520977

mask-wearing requirement from an area where patients "may be
present" to where they are "typically present," and also carved a
few exceptions, such as for personnel providing speech therapy or
working with a patient who lip reads. The amendments did not
otherwise meaningfully change the mask-wearing requirement for
non-vaccinated personnel, and the amendments do not in any way
adversely affect or change the basis of petitioners' challenge to
the regulatory requirement. If petitioners prevail in their
challenge to the original regulation, personnel to whom the
current regulation applies will be affected (see Kerwick v New
York State Bd. of Equalization & Assessment, 117 AD2d 65, 67-68
[1986]). The fact that DOH also clarified that local health care
facilities could adopt more stringent policies has no bearing on
this challenge to the merits of the requirements set forth in
DOH's regulation. The appeal is not moot since "the rights of
the parties will be directly affected by the determination of the
appeal" (Matter of Veronica P. v Radcliff A., 24 NY3d at 671
[internal quotation marks and citation omitted]; see Matter of
Town of Amsterdam v Amsterdam Indus. Dev. Agency, 95 AD3d 1539,
1540-1541 [2012]; cf. Matter of Law Enforcement Officers Union,
Dist. Council 82, AFSCME, AFL-CIO v State of New York, 229 AD2d
286, 289-290 [1997], lv denied 90 NY2d 807 [1997] [appeal moot
where regulation superceded an emergency regulation and contained
consequential changes]).

      Next, we consider petitioners' contention that DOH acted
beyond its delegated power and violated the separation of powers
doctrine. "The issues of delegation of power and separation of
powers overlap and are often considered together. This makes
sense because, if an agency was not delegated the authority to
enact certain rules, then it would usurp authority of the
legislative branch by enacting those rules" (Greater N.Y. Taxi
Assn. v New York City Taxi & Limousine Commn., 25 NY3d 600, 608
[2015] [internal citation omitted]). Analysis of the delegation
of power implicates the four "coalescing circumstances" set forth
in Boreali v Axelrod (71 NY2d 1, 11 [1987]), which are "non-
mandatory, somewhat-intertwined factors for courts to consider
when determining whether an agency has crossed the hazy 'line
between administrative rule-making and legislative policy-
making'" (Greater N.Y. Taxi Assn. v New York City Taxi &
Limousine Commn., 25 NY3d at 610, quoting Boreali v Axelrod, 71
                              -4-                520977

NY2d at 11; see Matter of New York Statewide Coalition of
Hispanic Chambers of Commerce v New York City Dept. of Health &
Mental Hygiene, 23 NY3d 681, 696 [2014]; Matter of NYC
C.L.A.S.H., Inc. v New York State Off. of Parks, Recreation &
Historic Preserv., 125 AD3d 105, 108 [2014], lv denied 25 NY3d
963 [2015]). Those factors include "whether the agency: (1)
operated outside of its proper sphere of authority by balancing
competing social concerns in reliance solely on its own ideas of
sound public policy; (2) engaged in typical, interstitial
rulemaking or wrote on a clean slate, creating its own
comprehensive set of rules without the benefit of legislative
guidance; (3) acted in an area in which the Legislature has
repeatedly tried – and failed – to reach agreement in the face of
substantial public debate and vigorous lobbying by a variety of
interested factions; and (4) applied its special expertise or
technical competence to develop the challenged regulations"
(Matter of Acevedo v New York State Dept. of Motor Vehs., 132
AD3d 112, 119 [2015] [internal quotation marks, brackets and
citations omitted]; accord Boreali v Axelrod, 71 NY2d at 12-14).

      Here, the Legislature delegated broad authority to DOH to
consider and implement regulations regarding the preservation and
improvement of public health, as well as establishing standards
in health care facilities that serve to foster the prevention and
treatment of human disease (see Public Health Law §§ 225, 2800,
2803, 3612, 4010). Addressing and attempting to minimize the
risk of patient exposure to influenza during influenza season
falls comfortably within the intent of the underlying
legislation. DOH did not operate outside its sphere of authority
or without the benefit of legislative guidance. The regulation
offers the options of being vaccinated or, if not, wearing a
mask. It thus affords workers options while advancing the
closely tailored goal of attempting to minimize an unwarranted
and unnecessary public health risk from the spread of influenza.
Although there had ostensibly been a prior effort by the
Legislature to address mandatory influenza vaccinations for
health care personnel, it had died in committee, and there is not
a record of repeated efforts to legislatively address the issue
with concomitant substantial public debate and lobbying.
Preventing or reducing the spread of influenza implicated
scientific and medical issues within DOH's expertise. The agency
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had its director of the Bureau of Healthcare Associated
Infections, Emily C. Lutterloh – a medical doctor and expert in
the field – conduct an extensive study and analysis regarding
influenza transmission in health care facilities and effective
ways to address this serious issue. Upon considering the Boreali
factors, as well as other circumstances relevant to whether DOH
acted beyond its power, we are unpersuaded that DOH crossed into
the legislative sphere.

      Petitioners further argue that the challenged regulation
(and its conforming regulatory amendments) was arbitrary,
capricious, irrational and contrary to law. "An administrative
agency's exercise of its rule-making powers is accorded a high
degree of judicial deference, especially when the agency acts in
the area of its particular expertise" (Matter of Consolation
Nursing Home v Commissioner of N.Y. State Dept. of Health, 85
NY2d 326, 331 [1995] [citations omitted]; see Matter of
Reconstruction Home & Health Care Ctr., Inc. v Daines, 65 AD3d
786, 787 [2009], lv denied 14 NY3d 706 [2010]). "'[T]he party
seeking to nullify such a regulation has the heavy burden of
showing that the regulation is unreasonable and unsupported by
any evidence'" (Matter of Big Apple Food Vendors' Assn. v Street
Vendor Review Panel, 90 NY2d 402, 408 [1997], quoting Matter of
Consolation Nursing Home v Commissioner of N.Y. State Dept. of
Health, 85 NY2d at 331-332). Contrary to petitioners'
contention, the record contains sufficient scientific and factual
evidence to support the regulation. Information reviewed by DOH
when considering the regulation included, among others, studies
and recommendations by the Centers for Disease Control and
Prevention, the United States Food and Drug Administration, the
Infectious Disease Society of America, as well as various journal
articles from experts in the field. Lutterloh submitted a
detailed affidavit discussing at length various pertinent issues
that were considered when formulating the regulation, including
the serious and potentially widespread health risk posed by
influenza in health care facilities, data and studies relevant to
the spread of influenza, various approaches to the problem
considered by experts in the field, potential concerns and
consequences implicated by assorted methods of attempting to
minimize the influenza risks, and the reasons for the approach
recommended and ultimately taken in the regulation. Petitioners
                              -6-                  520977

failed to show that the regulation (and its conforming regulatory
amendments) was unreasonable or unsupported by evidence in the
record.

     Peters, P.J., McCarthy and Rose, JJ., concur.



      ORDERED that the judgment is modified, on the law, without
costs, by partially converting the matter to a declaratory
judgment action; it is declared that petitioners have not shown
10 NYCRR 2.59 (and its conforming regulatory amendments as cited
herein) to be invalid; and, as so modified, affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
