Gallivan v. Cuomo
| Decision Date | 27 February 2021 |
| Docket Number | 801046/2021 |
| Parties | Patrick M. GALLIVAN, et al., Petitioners/Plaintiffs, v. Andrew M. CUOMO, et al., Respondents/Defendants. |
| Court | New York Supreme Court |
LIPSITZ GREEN SCIME CAMBRIA LLP, Paul J. Cambria, Esq., Of Counsel, Todd J. Aldinger, Esq., Of Counsel, Attorneys for Petitioners
HOGAN WILLIG, Corey J. Hogan, Esq., Of Counsel, Nicholas A. Taylor, Esq., Of Counsel, Attorneys for Petitioners
LETITIA JAMES, ATTORNEY GENERAL, STATE OF NEW YORK, Ryan L. Belka, Assistant Attorney General, Of Counsel, Joel Terragnoli, Assistant Attorney General, Of Counsel, Attorneys for Respondents
The Petition and Complaint in this hybrid proceeding (NYSCEF Doc. No. 1) seeks a preliminary injunction and a temporary restraining order, enjoining the Respondents and those acting in concert with them, from extending, implementing, or enforcing that portion of Executive Order 202.74, issued by Respondent, Andrew M. Cuomo, Governor of New York (the "Governor"), on November 12, 2020 ("EO 202.74"), which implemented an operational curfew on restaurants and bars (the "Curfew"):
All businesses that are licensed by the State Liquor Authority for on premises service of alcoholic beverages, shall cease all on premises service and consumption of food and beverages (including alcoholic beverages), inside or outside, at or before 10:00PM and shall not reopen before the later of any stipulated opening hours or existing county opening hours permit ....
All restaurants, irrespective of whether such restaurant is licensed by the State Liquor Authority, shall cease in-person dining at 10:00PM, but may continue curbside takeout and delivery service after 10:00PM so long as otherwise permitted, and may reopen no earlier than 5:00AM (Doc. No. 3) (the "Application for a Preliminary Injunction").
Respondents have applied, pursuant to CPLR 506(b), 510, 511, and 6311(1), to change venue from Erie County to Albany County (the "Motion to Change Venue") (Doc. Nos. 45-52).
On February 5, 2021, this Court issued a Temporary Restraining Order, which ordered, in relevant part, "that Petitioners are hereby permitted to operate their businesses pursuant to the NYS Department of Health Interim Guidance for Food Services during the COVID-19 Public Health Emergency (the "Interim Guidance for food Service"), without the application of the ... Curfew [imposed by EO 202.74]" (the "TRO") (Doc. No. 43).
Respondents sought expedited review of the TRO, pursuant to CPLR 5704(a), and on February 10, 2021, the Hon. Patrick H. NeMoyer, Associate Justice of the Appellate Division, Fourth Department (the "Fourth Department"), temporarily stayed the TRO pending determination of Respondents’ motion to vacate it. Thereafter, on February 16, 2021, Justice NeMoyer issued a Decision and Order granting the motion and vacating the TRO (the "NeMoyer Decision") (Doc. No. 59).
On February 14, 2021 (between the date of Justice NeMoyer's temporary stay of the TRO on February 10, 2021, and the issuance of the NeMoyer Decision on February 16, 2021), the Governor modified EO 202.74 by extending the Curfew from 10:00 p.m., to 11:00 p.m. Such modification is embodied in Executive Order 202.94 ("EO 202.94") (Doc. No. 112).
This matter arises out of the global pandemic associated with the spread of a novel coronavirus known as COVID-19 which, in January 2020 was linked to an outbreak of pneumonia
of unknown etiology in Wuhan City, in the Hubei Province of China (the "Pandemic") (Doc. No. 60, ¶7). Since then, COVID-19 has impacted nearly every aspect of daily life.
The history of the Pandemic, its impact on the world and particularly New York State, as well as the State's response to it, are described in detail in the Affidavit of Debra S. Blog, M.D., MPH, the Director of the Division of Epidemiology, New York State Department of Health (the "Blog Affidavit"), submitted in opposition to the Petition and Complaint, and the Court refers to such portions of her affidavit without separately stating the facts and circumstances surrounding the Pandemic and COVID-19 herein (Id. , at ¶¶7-43).
However, and as demonstrated more fully below, Dr. Blog has not fully described the extent to which the situation today is far improved since the Curfew was issued approximately three and a half months ago on November 12, 2020. Virtually all of the metrics used to measure the extent of the Pandemic and its impact on Western New York, such as, inter alia , percent positivity rate and hospitalization rates, have vastly improved since that time, which is not sufficiently addressed in the Blog Affidavit, leaving the reader with a negatively skewed impression of the Pandemic's current impact on the population, the healthcare system, and society overall.
For the reasons which follow, the Motion to Change Venue is denied. Respondents have not satisfied their burden of demonstrating that Erie County is an improper venue for this proceeding pursuant to CPLR 506(b).
In order to prevail on their motion, Respondents must establish either, that the determinations regarding the issuance of the Curfew were made in Albany County, the material events otherwise took place in Albany County, or that the Respondents’ principal offices are located in Albany County ( CPLR 506[b] ).
In support of their motion, Respondents submit the affidavit of Bryon Backenson, Acting Director for Disease Control of the Bureau of Communicable Disease Control in the Division of Epidemiology, New York Sate Department of Health ("NYSDOH") (Doc. No. 47). He states, relevant to this motion, that "Executive Orders 202.24 ... and 202.94 were developed in consultation with the [NYSDOH]", and that "[a]ll determinations regarding the issuance of these Executive Orders took place in Albany, New York (Id. , at par. 6).
Mr. Backenson avers that his affidavit is based on "personal knowledge" (although he provides no details of the basis for same), "discussions with [NYSDOH] staff" (without identifying any such persons, when and where these discussions occurred, or the substance of any such discussions, much less the substance of any such "determinations"), and "[NYSDOH] records" (without identifying, or submitting these records to the court for review and consideration as part of the record on this motion).
The law is clear that conclusory allegations are insufficient to sustain a party's burden as a matter of law (see, Collazo v. Netherland Prop. Assets LLC , 35 N.Y.3d 987, 125 N.Y.S.3d 337, 149 N.E.3d 30 [2020] ); affidavits based, in whole or in part, on hearsay lack probative value (see, Bank of NY Mellon v. Gordon , 171 A.D.3d 197, 97 N.Y.S.3d 286 [2d Dept. 2019] ); and an affidavit by an individual lacking personal knowledge of the facts does not establish the proponent's prima facie burden (see, e.g., Vermette v. Kenworth Truck Co. , 68 N.Y.2d 714, 506 N.Y.S.2d 313, 497 N.E.2d 680 [1986] ).
Based on this record, Respondents failed to establish their burden that Erie County is an improper venue for this action, and the motion is denied.
Moreover, venue in Erie County is proper, pursuant to CPLR 6311(1), because Respondents, NYS Liquor Authority and NYS Department of Health, have regional offices located in Erie County, and the challenged Curfew and its underlying directives are being enforced in Erie County.
Venue is proper in Erie County, pursuant to CPLR 510(3), because most of the material witnesses are present in Erie County ( Varone v. Memoli , 121 A.D.2d 213, 503 N.Y.S.2d 29 [1st Dept. 1986] ).
Respondents contend that, in evaluating whether Petitioners may be entitled to a preliminary injunction, this Court is bound by the NeMoyer Decision in accordance with the Doctrine of law of the case (the "Doctrine"). The Doctrine "is a rule of practice, an articulation of sound policy that, when an issue is once judicially determined, that should be the end of the matter as far as Judges and courts of co-ordinate jurisdiction are concerned" ( Martin v. Cohoes , 37 N.Y.2d 162, 165, 371 N.Y.S.2d 687, 332 N.E.2d 867 [1975] ). Further, "[a]n appellate court's resolution of an issue on a prior appeal constitutes the law of the case and is binding on ... Supreme Court, as well as on the appellate court" ( Micro-Link, LLC v. Town of Amherst , 155 A.D.3d 1638, 1640, 65 N.Y.S.3d 399 [4th Dept. 2017] ). Thus, "the law of the case Doctrine forecloses re-examination of a question previously determined by an appellate court in the same action, absent a showing of subsequent evidence or change in the law" ( Id. ).
However, the Doctrine does not apply to the procedural facts and circumstances of this matter. While the Court agrees with, and is bound by, the holdings of the decisions concerning the Doctrine upon which Respondents rely, such decisions are distinguishable from this matter, because they relate to appellate decisions made by the full appellate panel in the context of appeals following final judgments. On the contrary, the NeMoyer Decision was issued by a single Associate Justice of the Fourth Department in the narrow and limited context of reviewing the validity of a temporary restraining order.
Respondents contend further that Petitioners’ claims are moot, because Petitioners have achieved all the relief they sought to obtain by having filed this action. They rely on the decision in Pleasant View Baptist Church v. Beshear, 838 Fed.Appx. 936, *1 (6th Cir. 2020) (and similar decisions), which determined, in relevant part, that "[o]nce the law is off the books and replaced with a ‘new rule’ that does not injure the plaintiff, a case becomes moot, leaving us with an absence of jurisdiction to adjudicate the case." However, the Governor's modification of EO 202.74 (namely, to extend the Curfew from 10:00 p.m. to 11:00 p.m.) did not provide the Restaurant/Bar Petitioners1 with a "new rule that does...
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