BUFFALO, N.Y. — The lawsuit filed on behalf of dozens of Western New York restaurants is now moving forward in state supreme court after the state apparently said no to a key request for 50 percent indoor dining. At the same time some restaurant owners are warning they may be on the brink of shutting down or moving out.
As attorney Corey Hogan puts it, "The state - they were not willing to allow the restaurants to open and if we can't get past that hurdle -there's no room or ability to compromise on anything further."
He is one of the lead attorneys who says they were trying to reach a deal to settle that case on behalf of more than 60, and still counting, restaurant owners in Western New York.
They are beseeching Governor Andrew Cuomo and the state to back off on the take-out or patio dining only order handed down with the Orange Zone designation issued back in November.
Greg Duell of Duff's Restaurant in Amherst brings up the staff and the ripple effect.
"What about the missed income for employees and the products that we're buying from our food purveyors and beverage distributors," Duell said. "That all matters a lot."
The state, which has so far not responded on Monday, has said in the past it's tied to the COVID case surge. But again the businesses and attorneys contend the policy just does not make sense with the state's own reported 1.4 percent transmission rate and so far no directly connected case with a regional restaurant.
As Hogan sums it up, "They're just picking on these guys."
One of those "guys" has appeared in national media and is now battling on his own to get his recently pulled state liquor license back for his prominent Amherst restaurant.
Paul Santora of Santora's Pizza, Pub, and Grill says, "We've really been talking about an exit strategy and that's really how far this has driven us into this county and into this state. I mean I have no interest in supplying the tax revenue that I supply and the amount of employees and the amount of employment we do. And to have it spit back in our face after all the hard work is devastating."
Santora is trying to get a hearing with the NYS Liquor Authority after an inspector visited his establishment and the authority claimed there were violations that lead them to suspend his liquor license.
While the attorneys and restaurant owners are using state courts for their legal challenges, 2 On Your Side asked if they would go to federal courts.
There had been a Supreme Court order which blocked Governor Cuomo's order limiting attendance at Catholic churches in Brooklyn and two Orthodox Jewish synagogues.
We asked if that same approach could be used in the case of the restaurant owners on a constitutional basis. Attorney Steve Cohen says they have some federal court cases but he also notes, "The problem is the 11th amendment prevents the federal courts from compelling a state actor from doing something. So there's certain relief we can get, there's certain constitutional decisions that have been made. But the bigger concern here is that this governor is disregarding orders of the court."
They will be back before New York State Supreme Court Justice Henry Nowak for arguments Friday afternoon. It is not clear if he would issue a ruling after that hearing.
