Everest Foods Inc. v. Cuomo

• Decision Date: 07 February 2022
• Docket Number: 21 Civ. 6316 (AKH)
• Citation: 585 F.Supp.3d 425
• Parties: EVEREST FOODS INC., Punchgini, Inc., A Spice Route Inc., Impeccable Kitchen Bronx Corp., Junoon NYC LLC, Paisley Restaurant, LLC, Paprika II LLC, Payam Inc., Sabharwal Hospitality Group LLC, Surya Hells Kitchen Inc., Sharma & Singh Restaurant Group Inc., and Shree Laxmi Restaurant Inc., Plaintiffs, v. Andrew M. CUOMO, in his individual capacity, and Bill de Blasio, in his individual capacity, Defendants.
• Court: U.S. District Court — Southern District of New York

585 F.Supp.3d 425

EVEREST FOODS INC., Punchgini, Inc., A Spice Route Inc., Impeccable Kitchen Bronx Corp., Junoon NYC LLC, Paisley Restaurant, LLC, Paprika II LLC, Payam Inc., Sabharwal Hospitality Group LLC, Surya Hells Kitchen Inc., Sharma & Singh Restaurant Group Inc., and Shree Laxmi Restaurant Inc., Plaintiffs,

v.Andrew M. CUOMO, in his individual capacity, and Bill de Blasio, in his individual capacity, Defendants.

21 Civ. 6316 (AKH)

United States District Court, S.D. New York.

Signed February 7, 2022

Erica Tobi Yitzhak, William H. Trizano, The Yitzhak Law Group, Great Neck, NY, Michele Marie Bowman, Zukerman Gore Brandeis & Crossman, LLP, New York, NY, for Plaintiffs.

Matthew Joseph Lawson, New York State Office of The Attorney General, New York, NY, for Defendant Andrew M. Cuomo.

Jerald Horowitz, Rachel Kane Moston, New York City Law Department, New York, NY, for Defendant Bill de Blasio.

ORDER AND OPINION GRANTING MOTIONS TO DISMISS THE COMPLAINT

ALVIN K. HELLERSTEIN, U.S.D.J.:

Plaintiffs Everest Foods Inc., Punchgini, Inc., A Spice Route Inc., Impeccable Kitchen Bronx Corp., Junoon NYC LLC, Paisley Restaurant, LLC, Paprika II LLC, Payam Inc., Sabharwal Hospitality Group LLC, Surya Hells Kitchen Inc., Sharma & Singh Restaurant Group Inc., and Shree Laxmi Restaurant Inc. (collectively "Plaintiffs") bring suit for damages under 42 U.S.C. § 1983 against Defendants former-Governor of the State of New York, Andrew M. Cuomo ("Defendant Cuomo") and Mayor of New York City Bill de Blasio ("Defendant de Blasio"), (collectively "Defendants"), in their individual capacities. Complaint ("Compl.), ECF No. 1. Plaintiffs allege that in enforcing executive orders, laws, or regulations aimed at curbing the COVID-19 pandemic, Defendants violated Plaintiffs’ (1) procedural due process rights under the Fourteenth Amendment; (2) substantive due process rights under the Fourteenth Amendment; (3) equal protection rights under the Fourteenth Amendment; (4) property rights under the Takings Clause of the Fifth Amendment; and (5) rights against the impairment of contracts under the Contracts Clause, U.S. Const. art. I, § 10. Defendants moves to dismiss the complaint against for failure to state a claim under Fed. R. Civ. P. 12(b)(6). ECF Nos. 39, 49. For the reasons set forth below, both motions are granted.

BACKGROUND

The following facts are taken from the Plaintiffs’ Complaint, which I must "accept[ ] as true" for the purpose of this motion. Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). Plaintiffs are operators of food businesses in New York City that closed permanently, or suffered loss of business, as a result of executive orders and emergency executive orders issued by Defendants. Compl. ¶¶ 3–17, 23, 26.

On March 7, 2020, Governor Cuomo began issuing a series of executive orders ("EOs") "that declared a state of emergency based on COVID-19 in the State of New York [and] that regulated social and business activities of its residents." Id. ¶ 22. EO 202.1, issued on March 12, 2020, "set[ ] a 50% capacity limit on places of business that had fewer than 500 people in attendance, but exempted schools, hospitals, nursing homes, mass transit, government and law enforcement facilities, and ‘retail establishments including grocery stores.’ " Id. ¶ 24.

Taking his cue from Defendant Cuomo's EOs, NYC Mayor de Blasio also issued a series of Emergency Executive Orders ("EEOs"), which largely mirrored and enforced Defendant Cuomo's EOs, beginning with EEO 98 on March 12, 2020, which declared a state of emergency in New York City. Id. ¶ 26. EEO 99, dated March 15, 2020 and in accordance with EO 202.1, limited restaurants to 50 percent capacity but exempted mass transit and grocery stores. Id. ¶ 28.

On March 16, 2020, Defendant Cuomo issued EO 202.3, which provided that "Any restaurant or bar in the state of New York shall cease serving patrons food or beverage on-premises effective at 8 pm on March 16, 2020, and until further notice shall only serve food or beverage for off-premises consumption." Id. ¶ 29. In turn, Defendant de Blasio issued EEO 100, directing "all establishments – including restaurants, bars, cafes – that offer food or drink" to close until further notice but allowed them to remain open for take-out or delivery so long as customers waiting for take-out did not exceed the 50 percent capacities. Id. ¶ 31.

On March 18, 2020, Defendant Cuomo issued EO 202.6, limiting non-essential businesses to a 50 percent in-person workforce but exempted "[a]ny essential business or entity providing essential services or functions." Id. ¶ 32. In turn, Defendant de Blasio issued EEO 103, directing all businesses that did not qualify as "essential" under EO 202.6 to reduce their in-person workforces by 100 percent. Id. ¶ 34.

Defendant Cuomo also directed the Empire State Development Corporation ("ESDC") to issue guidance "as to which businesses are determined to be essential." Id. EOs 202.7 and 202.8, issued on March 19 and March 20, 2020, respectively, reduced in-person workforces by 75 percent and then by 100 percent, again exempting "essential" businesses. Id. ¶ 33. The guidance issued by the ESDC on March 20, 2020 deemed essential "food banks, farmer's markets, convenience stores, grocery ‘and beverage’ stores, and parks," and thus, "allowed [them] to continue operating." Id. ¶ 56.

On March 29, 2020, EO 202.13 extended the shutdowns of indoor dining to April 15, 2020, as well as "clarif[ied] ... that only certain construction is considered exempt" and directed the ESDC to determine which construction sites could remain open, without explaining why "certain" sites would be safe. Id. ¶ 35. EOs 202.14, 202.18, and 202.31, issued on April 7, 2020, April 16, 2020, and May 14, 2020, extended the shutdowns of indoor dining. Id. ¶¶ 36, 37, 39. EO 202.31, however, allowed other non-essential businesses in construction, agriculture, forestry, fishing and hunting, and curbside or in-store pickup or drop off for retail, manufacturing, and wholesale trade to reopen without explanation as to why such businesses were presumed safe. Id. ¶ 39. As to Defendant de Blasio, throughout April, he continued to issue EEOs "to ensure that the Governor's orders [were] enforced" and incorporating Defendant Cuomo's EO 203 and subsequent orders. Id. ¶ 38.

Further, while the ESDC's March 20, March 25, and April 8, 2020 Guidances allowed businesses to request designation as essential, these Guidances specifically provided that restaurants were "not eligible for designation as an essential business," and an April 10, 2020 Guidance referred to "[a]ny dine-in or on-premise restaurant or bar service, excluding take-out or deliver for off-premise consumption as a non-essential business." Id. ¶¶ 57–58.

On June 4, 2020, Defendant Cuomo "thanked protestors who had taken to the streets of New York City in closely packed crowds" to protest police misconduct against Black people, even though restaurants remained closed, a seeming inconsistency. Id. ¶ 44. Defendant de Blasio also did not enforce social distancing requirements on protesters but did enforce restrictions on indoor dining. Id. ¶ 45.

On June 13, 2020, EO 202.41 removed restrictions on certain industries, including the restaurant and food services industry, in eligible regions, which did not include Plaintiffs’ businesses; instead, EO 202.45, dated June 26, 2020, extended the shutdowns of indoor dining restrictions applicable to Plaintiffs. Id. ¶¶ 40–41. Further, EO 202.48, dated July 6, 2020, specifically exempted indoor food service and dining from the removal of restrictions in EO 202.41. Id. ¶ 43.

For his part, Defendant de Blasio issued EEOs 127 and 128 on June 22 and 27, 2020 "in order to ensure that the Governor's orders [were] enforced" and allowed restaurants to open in streets, under the "Open Restaurants Program," if they had ability to comply with city and state regulations and zoning laws regarding outdoor dining. Id. ¶ 42. Plaintiffs did not have access to sidewalks or streets where they could build extensions and so could not apply to operate under the Program. Id.

During the summer and fall of 2020, Defendant Cuomo issued EOs that allowed the opening of other businesses "where customers enter an indoor space in large groups, share space and air, and touch common surfaces," including construction, museums, art galleries, movie theaters, casinos, bowling alleys, and gyms, subject to adherence to Department of Health guidance and certain capacity limits. Id. ¶ 48. Defendant Cuomo failed to explain how construction, museums, art galleries, movie theaters, casinos, bowling alleys, and gyms are different from restaurants, in light of the fact that Plaintiffs took clear and strong measures to sanitize their premises and offer personal protective equipment to staff and customers, in order to prevent the spread of COVID-19. Id. ¶¶ 49–50. For his part, Defendant de Blasio called indoor dining "a very optional activity, which some people do a lot who have the resources and others can't do at all because they don't have the resources." Id. ¶ 74.

On October 6, 2020, Defendant Cuomo issued EO 202.68, which established red, orange, and yellow zones with different "mitigation measures" to be established by the Department of Health in each, based on "cluster-based cases of COVID-19." Id. ¶ 59. In red zones, restaurants were limited to take-out or delivery; in orange zones, they could seat four or fewer outdoors; and, in yellow zones, they could seat groups of four or fewer indoors. Id.

Defendant Cuomo allowed restaurants to reopen on September 30, 2020, under EO 202.61, at 25 percent indoor capacity with no bar service, and in EO 202.74, dated November 12, 2020, ordered restaurants to cease in-person dining between 10:00 p.m. and 5:00 a.m., a restriction only additionally placed on gyms. Id. ¶ 62. Defendant de Blasio continued to enforce Defendant Cuomo's EOs. Id. 63.

On December 11, 2020, Defendant...