Attachment 6 EDNY Hodge v Cuomo 21-cv-01421 Complaint

Case 1:21-cv-01421-NGG Case MDL No. 3011 Document 1 25-6 Filed 03/17/21 Filed 06/24/21 Page 60 Page of 154 60 of PageID 154 #: 316
State Agencies run by the named State Officer Defendants. The liability of the Owner
Operator Defendants and the State Officer Defendants who were complicit by their gross
negligence or active involvement, is set forth in this Class Complaint.
423. Defendant Governor and his Government Agencies are implicated dating back to the
failed settlement involving New York Executive Order 45 (9 NYCRR 3.45) upon the final
and enforceable Memorandum/Order (“Memorandum/Order”) of Judge Lasker
reported at 384 F Supp 800 of November 8, 1974, settled by agreement accepting
Defendant New York State’s offer of Executive Order 45, but Executive Order 45 failed,
and the Percy Class was never notified.
424. This Cause of Action also is to enforce the relief in SDNY Case 73-cv-04279 record of
which was then filed by ECF in Appeal No. 17-2274 as the Docket on Appeal to the United
States Second Circuit Court of Appeals.
425. A ruling by District Court Judge McMahon, EDNY Case No 21-cv-001366, Docket 6,
Attachment 1, that Case 73-cv-04279 was no longer a case and controversy having been
closed, and she instructed “There will be NO REOPENING of this case. If the plaintiffs
or any party wishes to file a new case, go right ahead.” docket #15 of 73-cv-04279. The
Second Circuit Court of Appeals in Appeal 17-2273 affirmed that Percy v. Brennan Case
73-cv-04279, is final. This Cause of Action is that new case.
426. This Cause of action is grounded upon the final and enforceable Memorandum/Order of
Judge Lasker reported at 384 F Supp 800 of November 8, 1974, and the Settlement
agreement accepting Defendant New York State’s offer of Executive Order 45 (Governor
Carey’s Executive Order 45 (9 NYCRR 3.45) in settlement to resolve the issues raised in
the Case 73-cv-04279. Thereupon, Percy v. Brennan Case 73-cv-04279 was closed
without prejudice by Judge Edelstein’s Order of May 4, 1977.
427. Then the New York Court of Appeals in Fullilove v Carey (48 NY2d 826, 1979), decided
together with Fullilove v Beame, 48 NY2d 376, (1979), declared that Executive Order 45
as promulgated by Governor Carey was an unauthorized exercise of legislative power,
illegal and unconstitutional. Implementation of the provisions of said Executive Order
45 was enjoined, including promulgation or enforcement of any rules and regulations
issued pursuant to said Executive Order 45. The Settlement failure caused by the State
of New York's actions or failure to act, are actionable, and were compounded by The State
of New York's misrepresentation in failing to notify the Court and the Percy Class of the
failure of the Settlement.
428. The Office of the Governor and its Government Agencies have actively continued to
obstruct a private solution Alternative Employment Practice demonstrated to be a less
discriminatory employment practice.
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