Judge temporarily lifts 10 p.m. curfew for bars, restaurants that sued New York State

"We were able to convince the court that the state had no justification for choosing 10 p.m. as the magic number for when restaurants stop being safe," attorney Paul Cambria, whose firm represented two plaintiffs in the case, said in a written statement. "The social distancing and mask requirements work just as well at 9:59 p.m. as they do at 11 p.m., midnight, or 2 a.m."

State Supreme Court Justice Timothy J. Walker granted the businesses a temporary restraining order prohibiting the state from enforcing the curfew. In his ruling, Walker said the businesses demonstrated a reasonable likelihood of success on the merits of their claims and that they would suffer irreparable harm unless the state was restrained from enforcing its restaurant curfew directive.

The judge's temporary restraining order immediately allows the businesses, which also include some in Monroe County, to temporarily operate without any curfew.

Attorney Steven M. Cohen cited the upcoming Super Bowl in a court document he submitted arguing for the curfew to be lifted. 

The curfew added to the financial strain felt through the pandemic by the businesses and those who sued "are on the verge of shutdown, economic disaster, insolvency and/or bankruptcy," Cohen wrote.

“We do 75 percent of all of our business between 10 p.m. and 4 a.m.,” said Peter G. Gerace Jr., owner of Pharaoh’s Gentleman’s Club in Cheektowaga. “This curfew hurt everyone in bars and restaurants.” 

The temporary restraining order remains in effect until the court decides on whether to grant a preliminary injunction, and a hearing for oral arguments on that issue was scheduled for March 15.

The group of business owners filed the initial suit two weeks ago seeking to end the state-ordered closing time.

In the suit, attorneys argued against Gov. Andrew Cuomo's Nov. 13 order requiring licensees of the state Liquor Authority to close between 10 p.m. and 5 a.m. The order also limited those businesses to curbside, food-only pickup. The closure time also applied to gyms.

Lawyers argued the state issued the restrictions without evidence or rationale that the measures reduce the spread of Covid-19. They also argued the state unfairly targeted the businesses and overstepped its legal authority.

The businesses are asking for the court to issue an injunction for a temporary or permanent halt to stop the state for enforcing the order.

At Prescott’s Provisions, a City of Tonawanda restaurant, the lifted curfew was welcome news. The restaurant’s owner, Don Benoit, was one of the lawsuit’s plaintiffs.

The restaurant normally closes at 10 p.m., but the curfew meant the restaurant would stop seating new patrons at 8:30 p.m., said Vincent Thompson, executive chef and general manager.

The lifted curfew means the restaurant will have more time to seat more people, which could equate to a couple thousand dollars in additional revenue each night, he said.

Some of the later evening’s diners would often have to take their dessert to go.

"We don’t have to rush them out," Thompson said.

In an affidavit submitted to the court last month, Benoit estimated his restaurant's losses last year due to Covid-19 restrictions at about $250,000, or about a 25% drop in business. If the curfew was allowed to continue, Benoit wrote he believed he would eventually be forced to shut down.

State Sen. Patrick Gallivan, an Elma Republican and one of the plaintiffs in the case, called the judge's ruling a challenge to "the governor's unilateral control of New York's pandemic response."

"The 10 p.m. curfew is just one example of how the governor has exceeded his authority," Gallivan said in a news release. "Once again, I call on my legislature colleagues to end the governor's unilateral control and restore our system of checks and balances in state government. The judge's decision is great news for everyone in the restaurant industry. I urge customers to support local restaurants and businesses while continuing to exercise practical health and safety procedures, such as wearing a mask and social distancing."

In a previously unrelated lawsuit over indoor dining in "orange zones," the initial ruling by the judge in that case that permitted indoor dining applied only to the businesses that sued. But the state later allowed the ruling to apply to all restaurants in orange zones, even if they were not a party to the suit.

The curfew suit named Cuomo, the state Department of Health and the state Liquor Authority as defendants.

The governor's office is reviewing the judge's decision, a spokesman said.