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Law360 (February 3, 2021, 10:32 PM EST ) New York Gov. Andrew Cuomo made an arbitrary and unconstitutional decision when he allowed casinos and bowling alleys to start reopening during the COVID-19 pandemic but denied that same allowance to arcades, Dave & Buster's said in a lawsuit lodged Wednesday in New York federal court.
The arcade and restaurant chain challenged Cuomo's continued shutdown, saying the specific shutdown of arcades threatens the company's place in the market and the long-term economic viability of its locations in New York.
Despite safely operating in other states and offering to comply with any reasonable public health guidelines New York might prescribe, Dave & Buster's said it is stuck closed while casinos, movie theaters, bowling alleys, gyms and other recreational and entertainment venues are allowed to reopen.
"The arcade shutdown is causing unnecessary financial hardship for plaintiff and its employees every day," Dave & Buster's said.
The company said that before the pandemic it employed more than 1,200 people at 11 locations across New York, but it had to furlough all but 40 of those employees due to the shutdown.
The suit claims violations of the First and 14th amendments to the U.S. Constitution and violations of the New York Constitution. It seeks injunctive relief to block the arcade shutdown, as well as litigation costs and attorney fees.
Dave & Buster's said its venues are large and open and that it has put the safety of its employees and guests first amid the pandemic. The company said it has imposed stringent health protocols and made changes to its floor plans and guidelines to safely operate its arcades and restaurants.
It is currently safely operating its venues in the neighboring states of Connecticut, Massachusetts, New Jersey and Pennsylvania, as well as in dozens of other states, according to the complaint. The company said it was one of the first national chains to implement daily temperature checks of employees and to require employees and guests to wear masks.
"Plaintiff's large store footprints naturally allow for greater social distancing, but to keep its employees and guests safe, plaintiff has rearranged store layouts, posted new safety signs, and shut down games and tables to ensure adequate distancing," the company said. "Plaintiff works cooperatively with departments of health in all areas in which it operates to ensure that best practices are instituted and followed by its employees and patrons."
Beginning in August, New York allowed bowling alleys and fitness centers to start reopening, followed by casinos in September and movie theaters in October, according to the complaint. But those reopening orders did not include arcades, and Cuomo has never explained how arcades are any different from casinos, bowling alleys, aquariums or other indoor entertainment venues, Dave & Buster's said.
The protocols that those other entertainment and fitness facilities have implemented — such as social distancing and mask-wearing — are the same as what Dave & Buster's is already doing at its locations in other states, the company argued.
"The similarities between casinos and arcades are so patent that no other state government currently requires plaintiff to keep its arcades closed while allowing casinos in that state to reopen," Dave & Buster's said.
But the arcade closure persists, the company said, despite the state's own data suggesting that similar businesses are not significant causes of COVID-19 spread.
Representatives for the parties did not immediately respond to requests for comment Wednesday evening.
Dave & Buster's is represented by Julia Tarver Mason Wood, Kannon K. Shanmugam and Brian M. Lipshutz of Paul Weiss Rifkind Wharton & Garrison LLP.
Counsel information for Cuomo was not immediately available.
The case is Dave & Buster's Inc. v. Andrew M. Cuomo, case number unavailable, in the U.S. District Court for the Northern District of New York.
--Editing by Daniel King.
For a reprint of this article, please contact reprints@law360.com.
