d/b/a Seaport House v. Cuomo

Background

Governor Andrew Cuomo issued two executive orders in response to a second surge of COVID-19 infections. Executive Order 202.74 required all New York restaurants to stop indoor and outdoor dining at 10 p.m. Executive Order 202.81 required New York City restaurants to suspend indoor dining. The opinion refers to these restrictions together as the “Dining Policy.”

The plaintiffs were Hopkins Hawley LLC d/b/a Seaport House, a New York City restaurant; The Greater New York Merchants’ Alliance, a nonprofit advocacy group representing restaurant owners across New York; and Costin Tarsoaga, a restaurant worker. They sued Governor Cuomo, the New York City Department of Finance, the New York City Sheriff’s Department, and Mayor Bill de Blasio, in their personal and official capacities where stated in the caption.

The plaintiffs sought a preliminary injunction, which is a court order issued before final judgment to prevent alleged harm while a case continues. They asked the court to stop enforcement of the Dining Policy, permit qualifying New York City restaurants to operate at 50% indoor capacity, and allow all New York restaurants to serve customers until midnight. They claimed that the Dining Policy violated the Fourteenth Amendment’s Due Process Clause, the First Amendment, and the Dormant Commerce Clause.

Standard for a Preliminary Injunction

Because the requested injunction would affect government action taken in the public interest, the court required the plaintiffs to show irreparable harm, a likelihood of success on the merits, and that the public interest favored granting the injunction. The court did not decide whether a heightened standard applied to the requested injunction because it concluded that the plaintiffs could not prevail even under the ordinary standard.

Judicial Review of the COVID-19 Restrictions

The court held that the deferential standard from Jacobson v. Massachusetts still applied. Under that standard, a public-health measure may be invalidated if it has no real or substantial relation to public health or is plainly and palpably an invasion of fundamental constitutional rights. The court acknowledged that later decisions had questioned Jacobson’s continuing relevance, but concluded that Jacobson had not been expressly overruled and directly addressed the circumstances before the court.

The court distinguished decisions involving restrictions on religious worship because this case involved restaurant dining and did not involve a religious-exercise claim. It also analyzed the plaintiffs’ claims under traditional constitutional standards and concluded that the claims would fail under either approach.

Likelihood of Success

The court ruled that the plaintiffs were unlikely to succeed under the Jacobson standard. It found that the Dining Policy was related to public welfare because public-health evidence identified restaurants, particularly indoor dining, as settings with increased COVID-19 transmission risks. The court also concluded that the plaintiffs’ requested relief implicitly recognized that restaurants could be subject to some public-health regulation, because they sought only a 50% indoor-capacity rule and a later closing time.

For the Fourteenth Amendment claims, the court rejected both procedural and substantive due process theories. It held that procedural due process protections do not apply to legislative government action, and found that the Dining Policy was legislative because it applied generally to restaurants and operated prospectively. The court also found that the policy did not shock the conscience and did not interfere with a fundamental right. It treated the asserted right to operate restaurants without the Dining Policy’s restrictions as an economic liberty, not a fundamental constitutional right.

The court also ruled that the plaintiffs were unlikely to succeed on their Dormant Commerce Clause claim. It found that the Dining Policy applied only to restaurants in New York and New York City, did not discriminate against interstate commerce, and did not have the practical effect of controlling commerce outside New York. Even assuming incidental effects on interstate commerce, the court concluded that the plaintiffs had not shown that those effects were out of proportion to the local benefit of reducing COVID-19 transmission.

The court rejected the First Amendment freedom-of-assembly claim as well. It concluded that the social interactions associated with restaurant dining did not fall within the First Amendment’s protection for purposes of the plaintiffs’ claim. Because it found no viable constitutional claim, the court applied rational-basis review, under which government action is valid if it is rationally related to a legitimate governmental purpose. The court held that the Dining Policy satisfied that standard because it had a conceivable scientific basis related to slowing COVID-19’s spread.

Irreparable Harm

The plaintiffs argued that the Dining Policy threatened their businesses with permanent closure. The court recognized that the threat of a business’s continued existence can constitute irreparable harm, but found that the plaintiffs had not provided evidence showing that their establishments were imminently likely to close because of the policy.

The court characterized the plaintiffs’ demonstrated injuries primarily as lost revenue caused by the pandemic and its restrictions. It held that monetary losses generally do not support a preliminary injunction because they can be addressed through money damages. The irreparable-harm factor therefore weighed against the injunction.

Public Interest

The court held that preventing the spread of COVID-19 was a compelling public interest and that the Dining Policy advanced that interest. It was not persuaded by the plaintiffs’ assertions that their ventilation systems made their restaurants safer or that reopening restaurants would reduce private indoor gatherings. The court found insufficient evidence supporting those assertions, including evidence specific to the plaintiffs’ establishments.

The court also emphasized that Governor Cuomo, rather than the court, was responsible for making the state’s public-health policy choices. It concluded that federalism, separation of powers, and judicial restraint required respect for the governor’s decision to impose the restrictions during the second surge of infections.

Disposition

Judge Paul A. Crotty denied the plaintiffs’ motion for a preliminary injunction and directed the Clerk of Court to terminate the motion at ECF 16. The defendants were directed to respond to the complaint under the court’s February 3, 2021 order.