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Lawyers: State attempts to delay decision on 10 p.m. restaurant curfew

Posted at 5:58 PM, Jan 26, 2021

ERIE COUNTY, N.Y. (WKBW) — About 90 Erie County restaurants fought to have indoor dining resume, and despite that win two weeks ago, the majority are still struggling. Peter Gerace, the president of Pharaoh's Gentleman's Club in Cheektowaga, said it's because the 10 p.m. curfew on restaurants still sticks.

"It pretty much destroyed our business. About 75% to 80% of our business is done between 10 p.m. and 4 a.m.," Gerace said, "I still have about 72-73% of my employees laid off. The ones I had come back to work are only working part time."

That's why lawyers at HoganWillig Attorneys at Law tried to appear in front of an emergency State Supreme Court judge Friday in an attempt to have the 10 p.m. restriction lifted ahead of the Bills game Sunday.

"They didn't consider it an emergency. They didn't consider it all that important in the sense that we're not going to be bringing a judge into the equation," Corey Hogan, partner and owner of HoganWillig Attorneys at Law, said.

Monday, the attorneys found the case had been turned over to the federal court. They said this was the state's attempt to delay any decision on the 10 p.m. curfew.

"Federal court would probably take months to get these issues resolved as opposed to days or weeks as we're attempting to do in state court," Hogan said.

But some restaurant owners say time is not on their side. They are on the brink of bankruptcy.

"[I have] probably a couple weeks. A lot of people out there are talking days," Gerace said.

Attorneys at HoganWillig voluntarily dismissed the federal court case. Now, they're completely redesigning the lawsuit, eliminating arguments involving the U.S. Constitution, so the case must be handled within the state.

"The argument will be that the restrictions imposed by the state are arbitrary and capricious. There's no basis for what they're doing. Arguably, they have to have some proof to say 10 p.m. makes a difference," Hogan said.

The case will now move forward on the basis that the 10 p.m. curfew is arbitrary and capricious. Hogan said this is an argument that has already won numerous lawsuits against the state.

"That's what Judge Nowak found. That's what Judge Devlin found. That's what Judge Colaiacovo found. That's what Judge Wojtaszek has found," Hogan said.

A spokesperson for Gov. Cuomo's office issued this statement:
“This is forum shopping, plain and simple — if the plaintiff’s lawyers believed their own arguments held water, they would argue their case in any court. We are happy to defend our actions to save lives in whatever forum the plaintiff wants to bring a suit, but this is simply a waste of judicial resources.”