Lowry v. McDonald, et al.

Opinion

os

2 Ghats One KL Office of the New York State Letitia James Attorney General Attorney General

April 27, 2026 VIA ECF Hon. Jennifer L. Rochon Southern District of New York Daniel Patrick Moynihan Court House 500 Pearl Street New York, NY 10007 Re: Lowry v. McDonald, et al.. SDNY Docket No. 26-CV-00968 Dear Judge Rochon: This office represents defendants James McDonald, in his official capacity as Commissioner of the New York State Department of Health (“DOH”) and Joseph A. Giovannetti, in his official capacity as Director of the Bureau of Investigations in the above-titled action. Defendants write pursuant to Your Honor’s Individual Practice Rule 1(F) seeking an adjournment of the deadline to respond to the First Amended Complaint (ECF No. 10) from April 30, 2026 to June 15, 2026. This is Defendants’ first request for an extension. Plaintiff consents to this request, which does not affect any scheduled dates. In this action, Plaintiff claims that she is a pediatric nurse who works for Dr. Mark Nesselson—a physician whose vaccination practices are under investigation by DOH for potential violations of Public Health Law Article 21 (Control of Acute Communicable Diseases). She purports to request injunctive and declaratory relief as against an administrative subpoena DOH issued to her seeking her testimony concerning Dr. Nesselson’s potential violations of the statute.! Plaintiff filed the initial Complaint on February 4, 2026 (ECF No. 1), and the First Amended Complaint on March 26, 2026 (ECF No. 10). Defendants were served on April 9, 2026 (ECF Nos. 21-21), and therefore their response to the First Amended Complaint is currently due on April 30, 2026. Defendants request that their deadline to respond to the First Amended Complaint be

' Last year, Dr. Nesselson filed a federal action challenging DOH’s investigation, which was assigned to Your Honor, Mark Nesselson M.D. v. James McDonald, et al., SDNY Docket No. 25- cv-04464 (JLR)(OTW) (“the Nesselson Action”). On April 15, 2025, Defendants requested that the instant action be marked related to the Nesse/son Action, and transferred from Judge Valerie E. Caproni, who received the initial assignment, to this Court. See ECF No. 24. On April 24, 2026, this proceeding was marked related to the Nesse/son Action, and reassigned.

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The Honorable Jennifer L. Rochon Page 2 of 2 April 27, 2026 extended for 45 days, i.e., until June 15, 2026. This extension will permit counsel sufficient time to fully respond to the claims raised in the First Amended Complaint while also permitting sufficient time for client review. This request also takes into account counsel’s other deadlines in federal court and the Appellate Division. Further, I write pursuant to Federal Rule 26(c) to request that discovery be stayed pending resolution of Defendants’ anticipated motion to dismiss. Plaintiff consents to this request. A stay of discovery is warranted because the dismissal motion will show that Plaintiff’s claims are unmeritorious. Moody v. Sedgwick Claims Mgmt. Servs., Inc., No. 25-CV-08671 (JHR) (VF), 2026 WL 550217, at *2 (S.D.N.Y. Feb. 27, 2026). Under binding precedent, Plaintiff’s challenge to the administrative subpoena is unripe because DOH has not yet moved in court to enforce it. Schulz v. IRS, 395 F.3d 463, 464 (2d Cir. 2005) (claimed injury from federal administrative summonses was abstract because “[t]he IRS has not initiated any enforcement procedure against [plaintiff].”); see also Khan v. McDonald, No. 24-cv-4745, at *3 (JIMA)(ST), 2025 WL 2726607 (E.D.N.Y. Sept. 25, 2025) (holding that DOH subpoena issued by the agency’s Bureau of Investigations concerning physician’s vaccination practice was “not ripe for review” where DOH had not moved for enforcement). Moreover, DOH’s issuance of the administrative subpoena does not violate the Fourth Amendment as Plaintiff has the opportunity to challenge it before compliance, including in any enforcement proceeding. Plaintiff also does not demonstrate any prejudice from a stay, and in fact, consents to it. Accordingly, Defendants request that discovery be stayed and the initial pretrial conference scheduled for June 17, 2026 (ECF No. 25) be adjourned sine die. Thank you for your Honor’s consideration of these requests.

Respectfully submitted, /s/_ Jessica Preis JESSICA PREIS Assistant Attorney General 212-416-8817 Jessica.Preis@ag.ny.gov ce: All Parties (via ECF)

Requests GRANTED. Defendants shall respond to the First Amended Complaint by June 15, 2026, and discovery shall be stayed pending resolution of Defendants’ anticipated motion to dismiss. Accordingly, the initial pre-trial conference scheduled at Dkt. 25 is ADJOURNED. The Clerk of Court is respectfully directed to terminate the motions at Dkts. 18, 24, and 26. SO ORDERED. Dated: April 28, 2026 New York, New York : £3, □□□ L. ROCHON United States District Judge