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Law360 (August 31, 2020, 8:54 PM EDT ) A New York City restaurant is suing Mayor Bill de Blasio and Gov. Andrew Cuomo in state court for $2 billion over "unfair" COVID-19 dining restrictions, which it says have kept hundreds of restaurants' premises shuttered while allowing eateries in nearby counties to serve customers indoors.
Queens restaurant Il Bacco Ristorante filed a proposed class action Friday claiming that New York City is now the only region in the state that doesn't allow indoor dining due to the coronavirus pandemic, while restaurants in neighboring suburban counties such as Nassau, Suffolk and Westchester are free to serve meals within their premises.
Il Bacco, located in Little Neck, says it's only about 500 feet from Nassau County and continues to lose income due to the shutdown orders that began in March — even though Cuomo's Phase III reopening on July 6 has allowed restaurants across the county border to serve diners indoors.
"If a restaurant patron travels 500 feet east or one city block east from plaintiff's restaurant, patrons are in Nassau County and can enjoy indoor dining in an air conditioned room," Il Bacco's complaint says. "According to Governor Cuomo, it is dangerous to eat at plaintiff's restaurant in Little Neck, Queens, but it is safe to dine indoors a few hundred feet east of plaintiff."
The suit claims that the rule preventing New York City restaurants from serving diners indoors is discriminatory because it's the only municipality where eateries can't reopen indoor spaces at half capacity.
Yet the city, along with the rest of the state, has seen 20 straight days of COVID-19 infections at a rate below 1%, with "excellent" compliance and only two businesses out of 1,000 receiving violations, according to the suit. This data shows that there is no longer a virus-related state of emergency in New York, the suit says.
Il Bacco, a family owned and operated restaurant for 28 years, says it fears that if it can't open for indoor dining immediately, it's dire financial situation will force it to permanently close down. This is the plight that the hundreds of other restaurants in the proposed class also face, the restaurant claims.
"At the present time, plaintiff and all others similarly situated have lost over $2 billion in revenue and have had to lay off at least 150,000 employees throughout New York City," the suit says.
The suit seeks $2 billion in compensation and a judgment saying the executive orders violate the restaurants' constitutional rights, along with a preliminary injunction enjoining Cuomo from enforcing the shutdown orders or issuing any further shutdowns.
Representatives for Il Bacco and the state and city did not immediately respond Monday to requests for comment.
Il Bacco is represented by James G. Mermigis of The Mermigis Law Group PC.
Counsel information for the state and city was not immediately available.
The case is Il Bacco Restaurant Corp. v. New York Gov. Andrew Cuomo et al., case number 156910/2020, in the Supreme Court of the State of New York, County of New York.
--Editing by Breda Lund.
For a reprint of this article, please contact reprints@law360.com.
