Tim Walton
BUFFALO, NY – Supreme Court Judge Henry Nowak has decided to hold his ruling until Wednesday. The delay comes so he has time to review several pages of papers that were filed as late as noon today.
This comes after an hour hearing between the state and the petitioners attorneys, HoganWillag.
91 Western New York bars, restaurants and pizzerias filed a lawsuit Christmas Eve seeking to be able to re-open immediately. Since then, that number has grown to around 60 establishments. The case was first heard two weeks ago, where the Judge told the state to negotiate with the restaurants to find a middle ground for them to re-open, or come back to court with data that justifies the shutdown.
Those 91 restaurants are seeking a temporary restraining order allowing them to re-open at 50% capacity, which is where they were when the state’s data showed they only contributed to 1.43% of cases.
The petitioners argued that by Cuomo’s own admittance, only 1.43% of COVID-19 cases came from bars or restaurants in comparison to 73.84% of COVID-19 cases, that came from homes and private gatherings.
The restaurants, claimed the state was operating with a “disturbing and gross abuse of their power”, and claimed the regulations have all been established with no scientific evidence or data to back up the restrictions.
Bars and restaurants have been given a number of “nonsense” restrictions that at times seem to be hypocritical and baseless. Under Cuomo’s orders, when they were allowed to open, families of 5 could drive in the same car to a restaurant, but told they could only sit 4 to a table.
They also had to order food with a drink, while complying with the same social distancing measures that would be in place if they just order a beer.
Furthermore, they had to close by 10pm and patrons could not stand at eat.
The restaurants argued if they can’t open soon, they would be forced to close for good. A claim that the state responded by claiming it was “speculative” that restaurants would have to close, despite a restaurant closing almost every single day in New York.
In a surprise argument from the state, they argued that restaurants are not safe to open, due to a claim they made that 6 feet apart is not enough space to be safe.
HoganWillig added additional points during the arguments saying that people don’t respect laws that don’t make sense. An example is that you can eat on one side of the canal and not the other 100 yards away, or one side of Transit and not the other.
Additionally they compared, Erie County to the Capital Region, which includes Albany. There are currently zero restrictions there despite higher positivity rate, higher occupied hospital beds and higher occupied ICU rooms.
The State’s own website shows the Capital Region has a 10% positivity rate over a 7 day rolling average, and only 17% of ICU beds available. Western New York has 8.5% positivity rate and 37% of ICU beds available. You can find that chart here.
Despite the state’s pwn website showing that, the lawyer for the state claimed Albany is only around 3% positivity rate.
The establishments on the lawsuit include:
-AMHERST PIZZA & ALE HOUSE, INC., (AMHERST PIZZA & ALE HOUSE)
-BOTTOMS UP V, LLC d/b/a BOTTOMS UP,
-CAMPFIRE GRILL II, INC,
-DA BADA, INC. d/b/a BADA BING BAR AND GRILL,
-DDF RESTAURANTS, INC. d/b/a DUFF’S FAMOUS WINGS,
-DON BENOIT d/b/a PRESCOTT’S PROVISIONS,
-DVS PROPERTIES, LLC,
-GALLERY EVENTS, LLC d/b/a VENU,
-ICE HOUSE PUB, LLC, d/b/a ICE HOUSE PUB,
-JOHN DOE CORP.,
-KFEATHER5, LLC d/b/a DUFF’S FAMOUS WINGS,
-KMT MANAGEMENT, INC. d/b/a BUFFALO BREW PUB,
-LADY BIRDS RESTAURANTS, LLC d/b/a THE BAYOU,
-LYONS, BIGGANE, INC. d/b/a THE BYRD HOUSE RESTAURANT,
-MAMBRINO KING WINE-COFFEE BAR LLC,
-MARY SANTARINI d/b/a LONDA’S DINER,
-MCCANS, INC. d/b/a MOONEY’S SPORTS BAR & GRILL,
-MKC RESTAURANTS, LLC d/b/s NEAT,
-OVERPASS PUB, LLC d/b/a OVERPASS PUB,
-PHAROHS GC, INC., (PHAROAH’S GENTLEMAN’S CLUB)
-RAPHAEL’S CORP. d/b/a RAPHAEL’S,
-SANTORA’S PHASE II, LLC,
-SANTORA’S PIZZA PUB AND GRILL, INC., (SANTORO’S PIZZA PUB & GRILL)
-SCOTT A. JARGIELLO d/b/a CAMPFIRE GRILL,
-SHOWNY, LLC d/b/a SCULPTURE HOSPITALITY OF WNY,
-SMITH BUDUSON, INC. d/b/a ROBBIE’S BAR AND GRILL,
-TACO COCINE ELLICOTT, LLC d/b/a DEEP SOUTH TACO,
-TACO COCINE HERTEL, LLC d/b/a DEEP SOUTH TACO,
-TANTALUS, LLC, d/b/a THE YELLING GOAT RESTAURANT,
-TBF ENTERPRISES, INC.,
-TETON SKY CORP. d/b/a TETON KITCHEN and
TETON KITCHEN ELMWOOD,
-THE DEFIELDS CORPORATION d/b/a
–THE FIRE HOUSE SPORTS BAR & GRILL,
-THE HOWLING ROOSTER, LLC,
-WNY BEER CLUB, LLC d/b/a RUSTY NICKEL BREWING CO.,
-WNY RESTAURANT SYSTEM d/b/a DUFF’S FAMOUS WINGS,
-99 BRICK OVEN BAR AND GRILLE, LLC, (99 BRICK OVEN)
-5786 TRANSIT RD, INC. d/b/a FIELDSTONE COUNTRY INN, and
-8444 TRANSIT RD, LLC d/b/a TAVERN AT WINDSOR PARK,
This case follows that of other similar ones including a suit filed by Buffalo gym owner Robby Dinero. Dinero was granted a victory yesterday and is now able to open at 100%.
