wkbw_49278_Super7_658x90.png

Actions

Judge issues temporary restraining order, almost a hundred WNY restaurants can stay open after 10 p.m.

"I'm thrilled to be open past 10 p.m."
SANTORAS.png
Posted at 12:03 PM, Feb 05, 2021
and last updated 2021-02-05 17:17:14-05

BUFFALO, N.Y. (WKBW) — More than 90 bars and restaurants in Western New York that sued New York State over the 10 p.m. indoor dining curfew can temporarily stay open after 10 p.m. following a judge's decision.

HoganWillig Attorneys at Law says a judge has granted a temporary restraining order to allow 91 restaurants to remain open after 10 p.m.

curfewwin.jpeg
Some business owners join lawyers at HoganWillig Friday.

The law firm says the establishments can stay open to their regular closing hours. That means if they are normally open until 4 a.m., they can remain open until that time under this order. All other state mandated restrictions, such as a limit of 10 people per table and at least six-feet between tables, remain in place and are not affected by this ruling.

The lawsuit was filed by HoganWillig and Lipsitz Green Scime Cambria.

“I’m thrilled to be open past 10 p.m.,” declared Greg Duell, owner, Duff’s at Eastern Hills Mall in Clarence.

The decision came just in time for Super Bowl weekend.

gregduellduffs.jpg
Greg Duell, owner, Duff’s at Eastern Hills Mall in Clarence.

“A lot of the people at the tables were ecstatic because guess what they can go out for tonight? — cocktails,” Duell said.

Duell said that’s the reaction he got from customers when they learned his restaurant can stay open past 10 p.m.

The temporary restraining order allows the more than 90 businesses suing the state to stay open as late as their pre-COVIDclosing time.

Some of the owners joined lawyers at HoganWillig in Amherst to celebrate this win.

“There's no danger to the public here,” stated Corey Hogan, attorney.

Hogan said his clients won their argument that restaurants are not increasing the spread of COVID and rates statewide have actually dropped since indoor dinning resumed.

On January 14th, when the state announced it was allowing indoor dining again, the statewide positivity rate was 6.4 percent.

COVIDGFXNEW.png
Statewide COVID rate.

Friday, 22 days since indoor dining has resumed, that rate has dipped even lower, to 4.3 percent.

“What we are doing is not contributing to any type of danger to the public,” Hogan noted.

But while there's victory in Western New York for those 90-plus bars and restaurants, Governor Andrew Cuomo is not backing down from his state imposed curfew for the rest of businesses state-wide.

cuomo.jpg
Governor Andrew Cuomo at Friday's briefing.

“No, we are not thinking about changing the curfew for Super Bowl Sunday. Maybe if the Bills were in the super bowl — it would be a different conversation — just kidding,” responded Cuomo.

Lawyers say this is only temporary and will have to return to argue their case March 15.

NEATOWNER .jpg
Casey Mullett, owner, Neat Wood, Whiskey, Wine Restaurant, Williamsville.

“And we know that it will take a while to get the public — that has kind of been drilled in their head that — restaurants are the bad guys — that’s not the case and we feel that, more than ever, the course of the past three weeks,” responded Casey Mullett, owner, Neat Wood, Whiskey, Wine Restaurant, Williamsville.

The retraining order comes just as some area bars and restaurants say they are dealing with some very difficult financial times.

SANTORA.jpg
Paul Santora, owner of Santora’s Restaurant.

“I haven't received a pay in over two and a half months to keep my staff going and I don't see that happening in the very near future,” explained Paul Santora, owner of Santora’s Restaurant.

Peter Gerace owns Pharaoh's Gentlemen's Night Club. He said he was “at the end of his rope” and is thankful he now can start calling his employees back.

GERACE.jpg
Peter Gerace owns Pharaoh's Gentlemen's Night Club.

“75 to 80 percent of my business is done between 10 p.m. and 4 a.m. — we still have 73 percent of our employees laid off,” explained Gerace.

Owners say it won't be an instant financial gain, but staying open past 10 should be a start to rebuilding their business.

“The 10’o’clock does make a huge ordeal for us as far as being able to have live music again,” Santora noted.

“Now we can make educated business decisions — how to staff our restaurant — how to put people back to work,” Duell noted.

Paul Cambria of Lipsitz Green Scime Cambria released the following statement:

“We were able to convince the Court that the state had no justification for choosing 10pm as the magic number for when restaurants stop being safe. The social distancing and mask requirements work just as well at 9:59pm as they do at 11pm, midnight, or 2am.”

In November 2020 the state put a 10 p.m. curfew in place for restaurants, gyms and bars due to an increased COVID-19 positivity rate in the state.

The New York State Restaurant Association has also called on the state to push back its 10 p.m. curfew to midnight citing neighboring Massachusetts eliminating curfews and adjusting capacity limits.

The temporary restraining order allowing bars and restaurants to remain open after 10 p.m. applies to the following:

A.C.+ J RESTAURANT, INC. d/b/a THE PEPPERMILL RESTAURANT,
ALFIERI DUQUIN, INC.,
AMHERST PIZZA & ALE HOUSE, INC.,
BANCHETTI BY RIZZOS, INC., d/b/a BANCHETTI BY RIZZO'S,
BILL SHAFLUCAS, LLC, d/b/a BREW BUS BUFFALO and DJ TRIVIA OF WNY,
BOTTOMS UP V, LLC d/b/a BOTTOMS UP,
BUFFALO'S BEST CATERING, LLC,
BUFFALO GRILL N ALE HOUSE, LLC d/b/a, BUFFALO GRILL N ALE HOUSE,
BVPK, INC.,
CAMPFIRE GRILL II, INC,
CARJONS RESTAURANT GROUP, INC. d/b/a SHARE
KITCHEN + BAR ROOM,
CHICK'S RESTAURANT AND LANES, INC.,
COWBOY OF CHIPPEWA, INC., d/b/a THE COWBOY
COLONIE LOUNGE, INC. d/b/a COLONIE LOUNGE,
CRITCHEN, LLC, d/b/a THE CRITCHEN,
DA BADA, INC. d/b/a BADABING BAR AND GRILL,
DADDY GOO GOO, LLC, d/b/a CASA DI FRANCESCA'S,
DDF RESTAURANTS, INC. d/b/a DUFF'S FAMOUS WINGS,
DON BENOIT d/b/a PRESCOTT'S PROVISIONS,
DVS PROPERTIES, LLC,
D&R KAZ,. INC. d/b/a KAZ'S BAR,
EXPO MARKET, INC.,
GALLERY EVENTS, LLC d/h/a VENU,
GABRIEL'S GATE, INC.,
GERTIES, INC. d/b/a GERTIE'S RESTAURANT,
GREEK TO ME RESTAURANT, LLC, d/b/a GREEK TO ME RESTAURANT,
GYPSY BOHEMIAN GROVE BAR, INC.,
HUTCH & ASSOCIATES, INC., d/b/a HUTCH'S RESTAURANT
ICE HOUSE PUB, LLC, d/b/a ICE HOUSE PUB,
JMB ENTERPRISES OF ERIE, INC. d/b/a MURPH'S WARSAW GRILL,
JOHN DOE CORP.,
KFEATHER5, LLC d/b/a DUFF'S FAMOUS WINGS,
KMT MANAGEMENT, INC, d/b/a BUFFALO BREW PUB,
KELLY'S KORNER, INC.,
KOOKOOVAYIA, LLC, d/b/a DUFFS OF ORCHARD PARK,
LADY BIRDS RESTAURANTS, LLC d/b/a THE BAYOU,
LOCAL BUFFALO, LLC,
LOCAL GRILLE & CATERING, LLC,
LYONS, BIGGANE, INC. d/b/a THE BYRD HOUSE RESTAURANT
MALBEAT INC., d/b/a MALLWITZ'S ISLAND LANE,
MAMBRINO KING WINE-COFFEE BAR, LLC,
MANFURT & TORALTI RESTAURANTS, INC.,
MARY·SANTARINl d/b/a LONDA'S DINER,
MATILDA BIRD,· LLC d/b/a THE GLOBE,
MCCANS, INC. d/b/a MOONEY'S SPORTS BAR & GRILL,
MGPUBLIC, LLC,
MIKEYCA TIE, INC. d/b/a ROOKIES SPORTS BAR
MKC RESTAURANTS, LLC dlb/s NEAT,
MPR RESTAURANTS WNY, lnc. d/b/a SCHNITZEL & CO.,
MUSTANG SALLYS SPIRITS AND GRILL, INC. d/b/a NY SHOWGIRLS,
MY TOMATO PIE, INC.,
OVERPASS PUB, LLC d/b/a OVERPASS PUB,
PHARAOHS GC, INC.,
RADCOL, INC. d/b/a RADIGAN'S,
RAPHAEL'S CORP. d/b/a RAPHAEL'S,
RIZOTTO, INC., d/b/a RIZOTTO ITALIAN EATERY,
RIZZO'S CASA DI ITALIA, INC., d/b/a RIZZO'S CASA DI ITALIA,
RUSSELL M. BRAUN, INC. d/b/a SMOKIN LITTLE DINER
SANTORA 'S PHASE II, LLC,
SANTORA'S PIZZA PUB AND GRILL, INC.,
SCOTT A. JARGIELLO d/b/a CAMPFIRE GRILL,
SCHWEIS SPRINGER, LLC, d/b/a EBENEZER ALE HOUSE
SHOWNY, LLC d/b/a SCULPTURE HOSPITALITY OF WNY,
SMITH BUDUSON, INC .. d/b/a ROBBIE'S BAR AND GRILL,
SPORTS CITY PIZZA PUB, INC. d/b/a SPORTS CITY PIZZA PUB,
STEEL CITY PUB, INC. d/b/a STEEL CITY PUB,
SUNNY'S DRIVE IN, INC., d/b/a NINA'S CUSTARD,
SUNNY'S DRIVE IN TRANSIT, INC.,
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 CORP. d/b/a
THE FIRE HOUSE SPORTS BAR & GRILL,
THE HOWLING ROOSTER, LLC,
THE ORIGINAL PANCAKE HOUSE OF ORCHARD PARK, INC.,
THE ORIGINAL PANCAKE HOUSE OF WILLIAMSVILLE, INC.,
TRACY STREET PRODUCTIONS, INC.,
WILLIAM JAMES DEVELOPMENT CORP. d/b/a RODNEY'S RESTAURANT
WNY BEER CLUB, LLC d/b/a RUSTY NICKEL BREWING CO.,
WNY RESTAURANT SYSTEM d/b/a DUFF'S FAMOUS WINGS,
30 ENTERTAINMENT, INC., dlb/a MANOR LANES,
23 S. BUFFALO ST., INC. d/b/a THE POUR HOUSE BAR AND GRILL
99 BRICK OVEN BAR AND GRILLE, LLC,
3989 MAIN STREET, INC. d/b/a, BRUNNER'S TAVERN,
5111 GENESEE ST., INC. dfb/a SCORES,
5786 TRANSIT RD., INC. d/b/a FIELDSTONE COUNTRY INN, and
8444 TRANSIT RD., LLC d/b/a TAVERN AT WINDSOR PARK

The New York State Restaurant Association (NYSRA) issued the following statement in response to Friday's court decision:

“Today’s court decision is a big win for some restaurants in Western New York, but once again we have an uneven playing field and not all can enjoy a later closing time. We now have another patchwork system of restrictions when you also take into account later closing times in neighboring states New Jersey and Connecticut. This all adds up to a competitive disadvantage for an industry that is barely hanging on. We’re pleading with Governor Cuomo to push back the curfew and allow indoor dining until at least midnight.”

Melissa Fleischut, president and CEO of NYSRA