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Law360 (December 16, 2020, 11:23 PM EST ) New York Gov. Andrew Cuomo said Wednesday that a suit challenging his "food curfew" halting dine-in service at midnight should be thrown out in light of his new COVID-19 safety regulations banning all indoor dining at any time, rules that he said render a restaurant's claims moot.
In its September suit, the Graham, a bar and eatery near New York City's Bushwick and Williamsburg neighborhoods in Brooklyn, alleged that Cuomo's cutoff is "arbitrary and unsupported by anything except speculation" that kicking diners out at a certain time 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 transmission risk.
A New York federal judge upheld the policy in October, and the case has since landed in the Second Circuit.
This week, Cuomo issued a new executive order that prohibits indoor food service and dining in the city at any hour, day or night, the governor said in Wednesday's motion to dismiss. That means the rule that the Graham is challenging is no longer in effect, he said.
And there's no exception to the mootness doctrine that applies to this case, Cuomo said. The governor hadn't signed the new rules to avoid a decision in this litigation — rather, the new regulations are in response to the "ongoing surge of COVID-19 cases and related hospitalizations," he said.
Jonathan Corbett, counsel for the Graham, told Law360 on Wednesday that "a case does not become moot just because [the governor] changes his mind from week to week as to the details of the restrictions."
"It is shocking that Gov. Cuomo continues to seek to evade judicial review of his orders," Corbett said. "One would think that, with the bravado with which he conducts his daily press conferences, he would not shy away from showing the data and evidence he claims justifies the destruction of an entire industry."
The bar and restaurant had claimed in its suit that under a thought test established by the U.S. Supreme Court's landmark 1905 Jacobson v. Massachusetts
decision, there has to be a real and substantial relationship between the policy and the restriction, "not the speculative relationship proposed by the state."But U.S. District Judge Brian M. Cogan disagreed, saying the dangers of COVID-19 provide a rational basis for a curb that could prevent the virus's spread and rejecting the establishment's injunction request.
Earlier this month, the restaurant's appeal was met by a dubious Second Circuit panel. During a virtual hearing, U.S. Circuit Judge Susan L. Carney and U.S. Court of International Trade Judge Richard K. Eaton seemed thoroughly disinclined to overturn the lower court's ruling, saying that an injunction could hamper the fight against the virus.
Representatives for Cuomo and counsel for the Graham didn't immediately return requests for comment late Wednesday.
The Graham, which is incorporated as the Columbus Ale House, is represented before the circuit by the Law Office of Jonathan Corbett.
Cuomo is represented by Assistant Solicitor General Sarah Rosenbluth of the New York State Office of the Attorney General.
The case is Columbus Ale House v. Cuomo, case number 20-3574, in the U.S. Court of Appeals for the Second Circuit.
--Additional reporting by Pete Brush. Editing by Jay Jackson Jr.
Update: This story has been updated to include comment from counsel for the Graham.
For a reprint of this article, please contact reprints@law360.com.
