A federal judge Wednesday dismissed a lawsuit brought by nine Buffalo-area businesses challenging Gov. Andrew Cuomo’s executive orders halting or limiting activity at their establishments amid the Covid-19 pandemic.
Read the full story from News Staff Reporter Sandra Tan
U.S. District Judge William M. Skretny called it the state's role to determine and implement, with wide latitude, the emergency measures it deems reasonably necessary for protecting the public against the disease.
"While reasonable minds may differ, New York is not required to respond to a public-health emergency as plaintiffs would like," Skretny said. "Nor may the state’s actions taken in reliance on expert scientific advice be second-guessed, for it is particularly when officials act in areas fraught with medical and scientific uncertainties that their latitude is especially broad."
Cuomo issued executive orders in March limiting the size of gatherings, requiring social distancing and ordering businesses deemed "nonessential" to shut down. A regional, phased reopening process started in May.
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The businesses – three bars, two strip clubs, a bowling center, a billiard hall, a DJ service and a martial arts studio – claimed Cuomo overstepped his authority in his use of executive orders, while the attorney general and state lawmakers went along with it, despite having the power to intervene. In their federal lawsuit filed in August, the businesses said the state officials' response to the public health crisis caused financial harm and were "a disturbing and gross abuse of their power" and “permitted the State of New York to take on the governmental attributes of a monarchy.”
"You and I are witnessing the reversal of 200 years of constitutional law and civil rights," lawyer Steven M. Cohen told The Buffalo News. "Generations of law students to come will be criticizing the decisions that are being handed down in this Covid era, including the one today by Judge Skretny.
"Our constitutional foundation is crumbling before my very eyes," said Cohen, who represented the businesses with attorney Corey J. Hogan.
Skretny noted in his decision that the respiratory disease spreads rapidly by person-to-person transmission, resulting in an epidemic the likes of which has not been seen in this country since 1918, with more than 25,000 deaths in New York alone.
"The record reflects that the orders are based on expert scientific and medical advice and are directly related to protecting the citizenry against the spread of Covid-19," Skretny said.
Skretny denied the businesses a temporary restraining order and preliminary injunction against Cuomo's orders. And he granted the state's motion to dismiss the case, although he will allow the businesses to file an amended complaint if done so within two weeks. If they do not, the case will be closed.
The attorneys for the businesses said that if Cuomo had not issued the executive orders, the businesses themselves would have used their own judgment to implement safety and health protocols.
Keeping customers and employees 6 feet apart renders their businesses unworkable, according to their lawsuit.
The plaintiffs in the case are Pharaohs, a Cheektowaga strip club; the Body Shop, a strip club in Buffalo; Bimber's Delwood, a bar in Kenmore; Soonertunes Productions; Bison Billiards in Clarence; Karate Ken's in Lockport; Five Star Lanes in South Buffalo; Four Aces Bar & Grill in Woodlawn; and the Cowboy, a bar on Chippewa Street.
The restaurant and bar plaintiffs said they are complying with the regulations and even exceed the state-imposed safety protocols and restrictions as they seek to return to profitability. But they say they are doing so under “constant fear” and “constant threats” of being closed by governmental agencies.
The state's defense centered on a submission to the court from Dr. Elizabeth M. Dufort, the medical director of the New York State Department of Health.
"She sets forth the reasoning behind the executive orders, the need for the limitations, and the imminent dangers faced if they are lifted," Skretny said. "And she attests that the governor issued each executive order in consultation with medical professionals and scientists to mitigate the 'grave threat' posed by the disease. Plaintiffs offer nothing in response. They neither challenge Dr. Dufort’s assertions nor offer any competing evidence of their own, despite alleging that the basis for the executive orders is 'medical disinformation.' ”
Skretny also said that "weakening the state’s response to a public-health crisis by enjoining it from enforcing measures employed specifically to stop the spread of Covid-19 is not in the public interest."
