Group of New York restaurants allowed to reopen after suing state over “arbitrary” restrictions

Group of New York restaurants allowed to reopen after suing state over “arbitrary” restrictions
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A group of New York restaurants will be able to reopen after suing the state over Gov. Andrew Cuomo’s strict lockdowns, the Erie County Supreme Court ruled on Wednesday.

The Daily Caller reports that the restaurants, based in Erie County, argued that Cuomo’s restrictions banning them from offering indoor dining were arbitrary and not based on scientific advisories relating to the coronavirus. 

Judge Henry J. Nowak, who presided over the case, sided with the plaintiffs, writing in his decision that the court could not find evidence that the state’s Department of Health “had a rational basis to designate portions of Erie County as an Orange Zone on November 18, 2020.”

Under Cuomo’s orders, New York implemented a “micro-cluster” strategy to control the spread of the pandemic, which designates areas of the state as red, orange, or yellow zones. Red zones are subject to the most restrictive rules, while orange zones are areas surrounding red zones, and see slightly lessened restrictions. Yellow zones face the least restrictions. The state’s Department of Health based its designations on testing and hospitalization rates, and used contact tracing to determine the areas’ geographic boundaries.

The court added: 

The court also finds irreparable injury to petitioners in the absence of injunctive relief, and a balance of equities in their favor (see Eastman Kodak Co. v Carmosino, 77 AD3d 1434, 1435 [4th Dept 2010]). The loss of goodwill that corresponds with a viable business is not readily quantifiable and constitutes irreparable harm warranting the grant of preliminary injunctive relief. Petitioners have also demonstrated that the Orange Zone designation has caused loss of revenue, unemployment, potential foreclosure and hardship upon Erie County residents.

The court found that Cuomo and the health department “did not identify any clusters requiring Red Zone Status within the designated area” and their only justification was a reference on a government website, stating that the restaurants located in the area “meet the metrics to transition to an Orange Warning Zone. The previous Yellow Zone is expanded to include new parts of Erie County seeing upticks in new cases, positivity, and hospital admissions.”

The court stated that the criteria was not distinctive enough to justify the imposition of lockdown restrictions. Under the state’s guidance, if a yellow zone’s rolling weekly positivity average for 10 days exceeded 2.5 per cent, it would be designated an orange zone. 

“One could envision a scenario where the 7-day rolling average positivity for ten days in a specified area rose and fell above and below the 3% figure on a daily basis,” the court stated. 

“For petitioners, the effect of this change in designation was dramatic,” the judge said. “As a result of the prohibition of all indoor dining in the new Orange Zone, thousands of employees have been laid off and petitioners have suffered financial losses to the point where their bars and restaurants will need to close.”

The court’s ruling follows a Supreme Court ruling last November which ordered Gov. Cuomo and the state of New York to reduce restrictions on places of churches, synagogues and other places of worship.

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  • By David Menzies

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