Courts uphold 10 p.m. curfew for New York bars, restaurants amid COVID pandemic
A federal judge has upheld the 10 p.m. curfew for bars and restaurants in New York, while a state appeals judge rescinded a restraining order that had allowed 91 bars in western New York to operate later into the night.
In the federal case, U.S. District Judge Paul Crotty of the Southern District denied several restaurants and a trade group's bid for a preliminary injunction to halt the curfew, ruling Gov. Andrew Cuomo has the authority to require the early closures.
"To preserve the public health and mitigate further needless death, Governor Cuomo took drastic steps aimed at stopping the spread of the COVID-19 virus," Crotty wrote in a 21-page order Tuesday.
"He was entitled to take these measures pursuant to the police powers delegated to the legislative and executive branches," Crotty added.
The order came as state Attorney General's Office on Tuesday requested the state Appellate Division overturn a state judge's earlier ruling that struck down the 10 p.m. curfew for 91 establishments in Erie and Monroe counties.
By Wednesday, state Appellate Division Associate Justice Patrick NeMoyer effectively rescinded the temporary restraining order that allowed the select few restaurants to operate past 10 p.m. He scheduled oral arguments in the case for Feb. 16.
The state's motion in part asserted federal courts have upheld similar public health actions during the pandemic, which is still raging despite the vaccination effort underway.
"New York State and the country at large are currently in the midst of the most critical stage of the pandemic to date, with death tolls still rising, vaccinations not yet reaching a critical mass, and highly contagious new coronavirus strains proliferating," the motion stated.
"In light of the ongoing rise in COVID-19 cases and deaths, the public interest would be served by permitting the ongoing enforcement of the 10 (p.m.) Closure Rule," it added.
The motion seeks to vacate the ruling by Acting Supreme Court Justice Timothy Walker of Erie County that asserted the curfew, which Cuomo enacted in a November executive order, is likely unconstitutional and violates restaurant owners' equal protection rights.
Walker issued a temporary restraining order that lifted the curfew while the court case proceeds, but only for those bars and restaurants that are plaintiffs in the lawsuit.
NeMoyer's order Wednesday placed a stay on the restraining order, which will keep it lifted until the Appellate Division rules on the state's motion.
Phone calls to an attorney in the state case and restaurant owner in the federal case were not immediately returned Tuesday afternoon.
In both the state and federal cases, the Attorney General's Office and Crotty asserted the restaurants failed to show how the curfew caused immediate and irreparable harm to their businesses.
In the state case, the motion asserted the plaintiffs' evidence of irreparable harm was limited to materially identical affidavits from owners of 16 of the bars
and restaurants that are part of the case.
"These affidavits asserted only that the 10 p.m. Closure Rule has caused them to lose an unspecified amount of revenue," the motion added.
In the federal court order, Crotty addressed the issue by asserting the "real injuries in this case are the substantial losses in revenue caused by the COVID-19 pandemic and its accompanying restrictions.
"As the majority of New Yorkers decide to play it safe and dine at home during the pandemic, restaurants across the state—and especially in New York City—have had to endure substantial losses in revenue," Crotty wrote.
He added the financial injuries are palpable and the significance is not lost on him, but the law didn't support the argument that they warranted a preliminary injunction.
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