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Law360, New York (October 6, 2020, 5:14 PM EDT ) A federal judge on Tuesday declined to block New York Gov. Andrew Cuomo's rule forbidding New York City restaurants from serving dine-in customers after midnight, saying the dangers of COVID-19 provide a rational basis for a curb that could prevent the spread of the deadly virus.
At the end of a telephone injunction hearing, Brooklyn U.S. District Judge Brian M. Cogan denied a request by The Graham, a bar and eatery near the city's Bushwick and Williamsburg neighborhoods, to block the so-called "food curfew."
"I recognize that the plaintiff's business has struggled during the pandemic," Judge Cogan said. But the state, not the courts, has police power and judges can't be in the habit of blocking such rules unless they are clearly irrational, Judge Cogan said.
"We all know that COVID-19 spreads more easily indoors," the judge said — though he also warned such rules have the potential to "turn New York City into a very different, even desolate, place."
The September lawsuit says the midnight service cutoff, announced Sept. 9, 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 responded by saying 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.
A lawyer for the state, Erin McAlister, told Judge Cogan during Tuesday's hearing that the rule constitutes "one step in a measured reopening." She suggested the possibility that the curfew could be reduced or eliminated depending on rates of virus transmission in the city — though city officials are grappling with rising rates in some Brooklyn neighborhoods.
But, she said, the "line has to be drawn somewhere."
"It's common knowledge that most people going after midnight are going out to mingle and drink," she said.
The restaurant's lawyer Jonathan Corbett countered that the state has provided no data to prove that "hunch." He said many New York City residents routinely dine after midnight because they keep different hours.
"Banning food sales is not rational on that basis," he said. "That doesn't pass the smell test."
After the hearing Corbett called the ruling disappointing and said his client is considering an appeal. The plaintiff also has the theoretical option to go to state court to press a state law claim challenging the rule, over which Judge Cogan declined to exercise jurisdiction.
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 Amy Rowe.
For a reprint of this article, please contact reprints@law360.com.
