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THOMAS E. MCCARTNEY II v. WILLIAM R. AUSTIN ET AL. (08/16/68)
SUPREME COURT OF NEW YORK, SPECIAL TERM, BROOME COUNTY
1968.NY.42785 <http://www.versuslaw.com>; 293 N.Y.S.2d 188; 57 Misc. 2d 525
August 16, 1968
THOMAS E. MCCARTNEY II, AN INFANT, BY THOMAS E. MCCARTNEY, HIS PARENT AND NATURAL GUARDIAN, ET AL., PLAINTIFFS,v.WILLIAM R. AUSTIN ET AL., CONSTITUTING THE BOARD OF EDUCATION OF THE MAINE-ENDWELL SCHOOL DISTRICT, ET AL., DEFENDANTS
Simmonds & Fauci (Salvatore A. Fauci of counsel), for plaintiffs.
Thomas & Ray (Herbert H. Ray of counsel), for defendants.
Louis J. Lefkowitz, Attorney-General (Thomas G. Conway and Ruth Kessler of counsel), for State of New York.
David F. Lee, Jr., J.
In this action for declaratory judgment and injunction defendants move to dismiss plaintiffs' complaint on the ground that "the pleading fails to state a cause of action" (CPLR 3211, subd. [a], par. 7), and for summary judgment pursuant to CPLR 3212. The plaintiffs, by way of cross motion, move for summary judgment.
The infant plaintiff Thomas E. McCartney II who resides with his parents in the Maine-Endwell School District, not having been immunized against poliomyelitis in accordance with section 2164 of the Public Health Law, was refused admittance to the sixth grade class at the Maine-Endwell School in September 1967. Home tutoring was furnished by the School District until sometime late in December, 1967. The home teaching was furnished "pending the determination by the Family Court of Dutchess and Steuben Counties holding the section constitutional". In January, 1968 a summons was served on the plaintiff Thomas E. McCartney in a proceeding in Family Court, Broome County, in which he was charged with having neglected a child under the age of 16 years, the infant plaintiff, in failing to have the child immunized. The proceeding in Family Court has, by order of the Family Court Judge, been stayed and the infant admitted to class, pending the disposition of this action.
The plaintiffs in their action seek judgment declaring:
"1. That Section 2164 of the Public Health Law of the State of New York is illegal, invalid and unconstitutional and is not binding upon the plaintiffs.
"2. That the defendants, and all officers and agents thereof, be restrained from interfering with the attendance of Thomas E. McCartney II at the Maine-Endwell School and that they be ordered to admit him to sixth grade thereof."
The Attorney-General, pursuant to CPLR 1012 (subd. [b]), has been notified of this action and the motions and elected not to intervene. However, a brief has been submitted by the Attorney-General in his statutory capacity under section 71 of the Executive Law in support of the constitutionality of section 2164 of the Public Health Law.
Section 2164 of the Public Health Law, entitled "Definitions; immunization against poliomyelitis", which became effective January 1, 1967, provides, in part:
"2. Every person in parental relation to a child in this state shall have administered to such child an adequate dose or doses of an immunizing agent against poliomyelitis which meets the standards approved by the United States public health service for such biological products, and which is approved by the state department of health.
"5. The physician who administers such immunizing agent against poliomyelitis to any such child shall submit a certificate of such immunization to the local health officer and shall give a copy of the same to the person in parental relation to such child.
"6. No principal, teacher, owner or person in charge of a school shall permit any child to attend such school without the certificate provided for in subdivision five of this section or some other acceptable evidence of the child's immunization against poliomyelitis.
"7. If any physician licensed to practice medicine in this state certifies that such immunization may be detrimental to a child's health, the requirements of this section shall be inapplicable until such immunization is found no longer to be detrimental to the child's health.
"8. This section shall not apply to children whose parent, parents, or guardian are bona fide members of a recognized religious organization whose teachings are contrary to the practices herein required, and no certificate shall be required as a prerequisite to such children being admitted or received into school or attending school."
The complaint alleges, inter alia :
"5. That the defendants have on numerous occasions been requested to admit the plaintiff, Thomas E. McCartney II to his sixth grade class but the defendants have refused and still refuse to do so.
"8. That by reason of the enforcement of the said Statute the plaintiff Thomas E. McCartney II is being deprived of attending school contrary to his absolute right to a primary education in the State of New York.
"9. That the said Statute is unconstitutional, illegal and invalid in that the same was enacted without regard to the plaintiff's individual rights and ...