Actions

Indoor dining allowed to temporarily resume for restaurants who sued NYS, permanent decision next week

Restaurant
Posted at 4:56 PM, Jan 13, 2021
and last updated 2021-01-14 10:19:51-05

ERIE COUNTY, N.Y. (WKBW) — UPDATE: Thursday morning, Erie County responded to the preliminary injunction detailed below by allowing all restaurants in Erie County's Orange Zone to operate under Yellow Zone restrictions. Read more here.

Supreme Court Judge Henry Nowak announced Wednesday restaurants in Erie County who sued the state due to its Orange Zone restrictions can temporarily reopen indoor dining with a permanent decision expected next week.

Those restaurants must operate under Yellow Zone restrictions according to the judge's decision, which allows for indoor and outdoor dining with a maximum of four people per table.

“Let’s do it the right way, let’s lead by example," said Brandon Carr, the owner of The Quarter, one of the restaurant's in the suit. "Stay at the 50% capacity, make sure tables are distanced, masks are on when they’re not seated, and let’s do this appropriately for everybody.”

Thirty-seven restaurants filed a lawsuit against Governor Andrew Cuomo and other legislative and health officials in the state regarding shutdowns in Erie County’s Orange Zone December 24th. The list quickly grew to more than 90 restaurants.

“It’s about seeing the customer, it’s about watching your customers interact with your employees especially the regulars," said Paul Santora, owner of Santora's Pizza Pub and Grill Restaurants. "It’s the coolest thing you’ve ever seen, it’s like watching Cheers sometimes.”

In his decision Judge Nowak wrote in part, "Considering the record presented, this court cannot find evidence that the State had a rational basis to designate portions of Erie County as an Orange Zone on November 18, 2020."

He also said the restaurants demonstrated the orange zone caused hardship to residents, unemployment, and loss of revenue.

January 9th, the state and the restaurants presented their cases in court. Judge Nowak said he would need extra time to make a decision. Attorneys from HoganWillig, representing the restaurants, asked restaurants reopen under the same guidance from the state set in June. Lawyers for the state said they're relying on CDC guidance, classifying indoor dining as high risk.

December 28th, New York State Supreme Court Judge Nowak said the state must compromise on COVID-19 restrictions on bars and restaurants. Neither the state nor restaurants were willing to compromise.

Attorneys at HoganWillig said the governor’s closure of indoor dining is unconstitutional. Attorneys said this infringes on owners' rights to earn an honest living.

On December 11th, during his press briefing, Governor Cuomo said bars and restaurants, state-wide, account for only 1.43% of COVID-19 cases. Cuomo said 73.84% of COVID-19 cases come from household or social gatherings.

Lawyers said the government can’t keep indoor dining shutdown because it’s been statistically shown restaurants are not the cause of the COVID-19 spread.

Representatives from the state said they sympathize with the restaurant's financial losses, but they are on the side of saving lives. The state said not allowing indoor dining is a way to prevent the spread of COVID-19.

The following restaurants were listed on the judge's decision, dozens of others were also part of the lawsuit

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.
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/b/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.
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 SANTARINI 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
MIKEYCATIE, INC. d/b/a ROOKIES SPORTS BAR
MKC RESTAURANTS, LLC d/b/s NEAT
MPR RESTAURANTS WNY, Inc. 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
PHAROHS 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
3G ENTERTAINMENT, INC., d/b/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. d/b/a SCORES
5786 TRANSIT RD., INC. d/b/a FIELDSTONE COUNTRY INN, and
8444 TRANSIT RD., LLC d/b/a TAVERN AT WINDSOR PARK

Restaurants in the orange zone not named in the lawsuit will still be closed for indoor dining.

“The court’s decision only applies to our clients," said Corey Hogan, partner at HoganWillig. "I don’t know what the governor’s intentions will be now that perhaps 80 restaurants will be opened up in Erie County and many more will not be allowed to operate.”

A spokesperson for the state tells 7 Eyewitness News that it is reviewing the decision.

The next step is a court hearing on Tuesday, before the judge decides whether this decision will be permanent.