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Law360, New York (September 22, 2020, 6:14 PM EDT ) A federal judge on Tuesday ordered New York Gov. Andrew Cuomo to quickly respond to a Brooklyn eatery's argument that the "coronavirus does not behave as a vampire, infecting others only when the moon is out," in a suit challenging his plan to close New York City for dining at midnight.
Brooklyn U.S. District Judge Brian M. Cogan ordered the governor's lawyers in Albany to respond by Sept. 29 to a request by The Graham, a bar and eatery near the city's Bushwick and Williamsburg neighborhoods, to block the COVID-19 "food curfew." The judge set arguments on the injunction bid for Oct. 6.
Judge Cogan said he is aware of the "urgency" of the dispute due to the "injurious" impact such regulations have on city dining establishments, which have been reeling since the onset of the deadly virus.
"We're here about the whole thing, which is whether the state can keep people closed at all," Judge Cogan said.
The lawsuit says the midnight service cutoff, announced Sept. 9 and set to take effect Sept. 30, is "arbitrary and unsupported by anything except speculation" that kicking diners out of restaurants earlier than usual combats the spread of COVID-19.
Cuomo's office has responded by saying that the rule exists because "late-night service can encourage individuals to gather and mingle, increasing the risk of COVID transmission."
But The Graham, which is incorporated as the Columbus Ale House, calls that logic unproven and complains that the governor's moves are killing the city's hospitality industry, which has "tirelessly worked, in good faith, to provide as safe of an environment for New Yorkers as possible."
The fact that only the city is subject to the curfew also shows the governor's "bias against the people of New York City," according to the eatery.
The Graham's lawyer, Jonathan Corbett, told Law360 in an email that the state has not explained why the rule is necessary for the city alone, asserting that Cuomo continues to issue rules without consulting industry partners.
"Absent a compelling explanation, we look forward to a retraction of the rule," Corbett said.
The curfew is set to take effect as the state loosens its ban on indoor dining to allow city restaurants to seat diners indoors at 25% capacity.
The New York Attorney General's Office declined to comment.
The restaurant is represented by the Law Office of Jonathan Corbett.
Cuomo is represented by Erin McAlister of the Office of the New York State Attorney General.
The case is Columbus Ale House v. Cuomo, case number 1:20-cv-04291, in the U.S. District Court for the Eastern District of New York.
--Editing by Daniel King.
For a reprint of this article, please contact reprints@law360.com.
