DiMartile et al v. Cuomo et al

Filing 37

DECISION AND ORDER that the State Defendants' motion for a stay of the preliminary injunction order pending appeal (Dkt. No. #27 ) is DENIED. Plaintiffs' cross-motion for sanctions (Dkt. No. #31 ) is DENIED. Signed by Chief Judge Glenn T. Suddaby on 8/19/2020. (sal )

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
JENNA M. DiMARTILE; JUSTIN G. CRAWFORD;
PAMELLA GIGLIA; JOE DUROLEK; and
DAVID SHAMENDA,
Plaintiffs,
v.

1:20-CV-0859
(GTS/CFH)

ANDREW M. CUOMO; LETITIA JAMES; MARK
POLONCARZ; EMPIRE STATE DEVELOPMENT
CORP.; and ERIE COUNTY DEPARTMENT OF
HEALTH,
Defendants.
____________________________________________
APPEARANCES:

OF COUNSEL:

RUPP BAASE PFALZGRAF & CUNNINGHAM LLC
Counsel for Plaintiffs
424 Main Street
1600 Liberty Building
Buffalo, NY 14202-3616

R. ANTHONY RUPP, III, ESQ.
PHILLIP A. OSWALD, ESQ.

HON. LETITIA A. JAMES
Attorney General for New York
Counsel for State Defendants
The Capitol
Albany, NY 12224

ADRIENNE J. KERWIN, ESQ.
DENISE P. BUCKLEY, ESQ.
Assistants Attorney General

HON. MICHAEL A. SIRAGUSA
Erie County Attorney
Counsel for County Defendants
95 Franklin Street, Suite 1634
Buffalo, NY 14202

MICHELLE PARKER, ESQ.
First Assistant County Attorney

GLENN T. SUDDABY, Chief United States District Judge

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DECISION and ORDER
Currently before the Court, in this civil rights action filed by Jenna M. DiMartile, Justin
G. Crawford, Pamella Giglia, Joe Durolek, and David Shamenda (“Plaintiffs”) against Andrew
M. Cuomo, Letitia James, and Empire State Development Corporation (“State Defendants”), and
Mark Poloncarz and the Erie County Department of Health (“County Defendants”), is the State
Defendants’ motion for a stay of the preliminary injunction granted by the Court on August 7,
2020, pending the State Defendants’ appeal of that preliminary injunction. (Dkt. No. 27.) For
the reasons set forth below, the State Defendants’ motion is denied.
I.

RELEVANT BACKGROUND
A.

Procedural History

On July 31, 2020, Plaintiffs filed a motion for a temporary restraining order and
preliminary injunction. (Dkt. No. 4.) On August 5, 2020, the County Defendants and the State
Defendants each filed cross-motions to dismiss Plaintiffs’ Complaint. (Dkt. Nos. 11, 14.) On
August 7, 2020, the Court held a hearing on Plaintiffs’ motion through video conference, and, on
the same day, granted Plaintiffs’ motion for preliminary injunction and deferred consideration of
Defendants’ cross-motions. (Dkt. No. 20.) On August 11, 2020, the State Defendants filed the
current motion seeking a stay of the preliminary injunction pending appeal to the Second Circuit.
(Dkt. No. 27.) Although the County Defendants do not oppose the State Defendants’ motion,
Plaintiffs do oppose it. (Dkt. No. 27, Attach. 2, at 4; Dkt. No. 27, Attach. 2, at 7.)
B.

Briefing on the State Defendants’ Motion
1.

State Defendants’ Memorandum of Law

Generally, in their motion, the State Defendants argue that the Court should issue a stay
of its preliminary injunction for four reasons: (1) they have shown a probability of success on the
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merits because (a) weddings are not equivalent to ordinary dining, (b) there is no evidence or
reasonable basis for assuming that patrons at the weddings will follow social distancing
protocols and other state-mandated health and safety protocols, and (c) the Court did not apply
the heightened standard applicable to preliminary injunctions that, as here, essentially grant
Plaintiffs all the relief they are seeking; (2) there is a high danger of irreparable injury to the
State Defendants in that allowing weddings to take place with more than 50 individuals in
attendance will likely result in a resurgence of COVID-19 infections; (3) a stay would not
substantially injure Plaintiffs because they would still be permitted to get married and have
weddings at their chosen venue within the 50-person limit and may use other avenues such as
videoconferencing, rescheduling, or having separate gatherings elsewhere for excess guests; and
(4) the public interest strongly favors a stay due to the risks of the spread of COVID-19. (Dkt.
No. 27, Attach. 6 [State Defs.’ Mem. of Law].)
2.

Plaintiffs’ Opposition Memorandum of Law and Cross-Motion for
Sanctions

Generally, in opposition to the State Defendants’ motion, Plaintiffs make three
arguments. (Dkt. No. 31, Attach. 5, at 5-22 [Pls.’ Opp’n Mem. of Law].) First, Plaintiffs argue
that a request for a stay of a preliminary injunction is logically inconsistent with the granting of a
preliminary injunction under Second Circuit law because, in granting the preliminary injunction,
the Court found that Plaintiffs would be irreparably harmed in the absence of an injunction, and
thus the State Defendants cannot make the requisite showing that Plaintiffs would not be harmed
if a stay was granted. (Id. at 5-8.)
Second, Plaintiffs argue that the Court should not consider the declaration from Dr.
Zucker because the State Defendants did not submit that evidence as part of their response to the
motion for preliminary injunction and they should not be permitted to effectively have a second
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chance at litigating issues already decided by this Court. (Id. at 8-9.) In the alternative,
Plaintiffs argue that Dr. Zucker’s declaration does not indicate that the Court’s findings were
somehow erroneous. (Id.)
Third, Plaintiffs argue that the State Defendants have failed to show that a stay is
warranted for the following reasons: (a) the State Defendants are not likely to prevail on the
merits because (i) the standard on appeal is highly deferential to the district court, (ii) the Court
has already considered and rejected the substantive grounds the State Defendants raise here, (iii)
whether guests are likely to comply with social distancing and other safety protocols is not even
a factor in the relevant equal protection analysis, and the State Defendants’ arguments further
compound their failure to treat weddings and wedding guests as equal with other persons who
are trusted to comply with the relevant protocols when engaging in activities like dining at
restaurants, and (iv) the evidence submitted by Plaintiffs shows that weddings are actually safer
than ordinary restaurant dining and other activities that have been allowed at capacities of more
than 50 people; (b) the Court properly found a substantial likelihood of success and a strong
showing of irreparable harm because, although it did not conform to certain specific language
throughout its decision, its analysis makes clear that it found that Plaintiffs made a strong
affirmative showing of a violation of a constitutional right; (c) the State Defendants have not
shown that they will be irreparably harmed absent a stay because they point only to a possibility
that the wedding could result in the spread of COVID-19, which is by its nature speculative; (d)
Plaintiffs would be substantially harmed by a stay of the preliminary injunction based on the
Court’s previous finding of irreparable harm that merited granting the preliminary injunction;
and (e) the public interest would not be served by a stay because the public interest is served by
protecting constitutional rights. (Id. at 10-22.)
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Plaintiffs also argue that Court should grant their cross-motion for sanctions against the
State Defendants because the State Defendants’ motion is frivolous in that the Court already
found that Plaintiffs will be irreparably harmed and thus the State Defendants cannot succeed on
their motion for a stay given that such motion requires them to show that there would not be
significant harm to interested parties if a stay is granted. (Id. at 22-24.) Plaintiffs argue that this
motion is essentially an effort to force the Court to reconsider its decision to grant the
preliminary injunction and that such a tactic has no reasonable good-faith basis in law. (Id.)
Plaintiffs argue that the Court has the power to grant sanctions despite the 21-day safe harbor
provision in Fed. R. Civ. P. 11 because the power to sanction exists independent of court rules
and statutes such as Fed. R. Civ. P. 11. (Id.)
3.

State Defendants’ Reply Memorandum of Law

Generally, in their reply memorandum of law, the State Defendants make four arguments.
(Dkt. No. 32 [State Defs.’ Reply Mem. of Law].) First, the State Defendants argue that their
motion as submitted to this Court is proper, because the authority cited by Plaintiff does not
make a stay pending appeal of a preliminary injunction a logical impossibility, and Fed. R. Civ.
P. 62(d) specifically allows a court to grant a stay of an injunction when an appeal is pending.
(Id. at 3-5.) They additionally argue that Fed. R. App. P. 8(a)(1) made it proper for them to seek
a stay after the Court’s denial of the Order to Show Cause, and that their motion is not a request
to reconsider the grant of the injunction but rather a proper motion to stay the injunction pending
appeal. (Id. at 4-5.)
Second, the State Defendants argue that the Court may properly consider Dr. Howard
Zucker’s declaration because it was submitted as part of their burden to establish the elements

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for a stay pending appeal and it shows that the State Defendants are likely to succeed on their
appeal. (Id. at 5.)
Third, the State Defendants argue that there is a high danger of irreparable harm if a stay
is denied based on the large number of people attending the wedding (149 of whom have not
provided affidavits attesting to their willingness to follow the relevant protocols), the fact that
none of the affidavits state that guests will not engage in a host of activities that will increase the
risk of the spread of COVID-19, and the fact that evidence showing that the DiMartile-Crawford
wedding did not comply with all of the relevant protocols and that the venue has a history of
noncompliance with the safety protocols undermines Plaintiffs’ evidence that the protocols will
be enforced. (Id. at 6-9.) In support of this last argument, the State Defendants adduce evidence
that appears to have been available to them when they filed their motion for a stay. (Dkt. No. 32,
Attach. 1-3.)
Fourth, the State Defendants argue that there is no similarly situated comparator to a 175person wedding to support Plaintiffs’ equal protection claim, discussing why places such as
museums, bowling alleys, gyms, civil rights protests, and graduations protests are not
comparable. (Dkt. No. 32, at 9-10.)
C.

Hearing on August 19, 2020

On August 19, 2020, the Court held a video conference hearing related to the State
Defendants’ motion. Arguments were presented by the parties’ counsel, but no testimony or
additional evidence was adduced.
II.

GOVERNING LEGAL STANDARD
Rule 62(d) of the Federal Rules of Civil Procedure provides that, “[w]hen an appeal is

pending from an interlocutory order or final judgment that grants, continues, modifies, refuses,
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dissolves, or refuses to dissolve or modify and injunction, the court may suspend, modify,
restore, or grant an injunction on terms for bond or other terms that secure the opposing party’s
rights.” Fed. R. Civ. P. 62(d). In deciding whether to grant a stay of an order or proceeding
pending appeal, courts consider four factors: (1) “whether the stay applicant has made a strong
showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably
injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties
interested in the proceedings; and (4) where the public interest lies.” United States v. Grote, 961
F.3d 105, 122-23 (2d Cir. 2020). The Second Circuit evaluates these factors on a sliding scale,
finding that “[t]he necessary ‘level’ or ‘degree’ of possibility of success will vary according to
the court’s assessment of the other stay factors.” Thapa v. Gonzales, 460 F.3d 323, 334 (2d Cir.
2006). “The probability of success that must be demonstrated is inversely proportional to the
amount of irreparable injury plaintiff[] will suffer absent the stay. Simply stated, more of one
excuses less of the other.” Mohammed v. Reno, 309 F.3d 95, 101 (2d Cir. 2002).
A stay is not a matter of right but an exercise of judicial discretion that depends on the
circumstances of the particular case. Niken v. Holder, 556 U.S. 418, 433 (2009). “The party
requesting a stay bears the burden of showing that the circumstances justify an exercise of that
discretion.” Niken, 556 U.S. at 433-34.
Because the parties have demonstrated in their memoranda of law an adequate
understanding of this legal standard, the Court need not, and does not, further elaborate on this
legal standard in this Decision and Order, which (again) is intended primarily for the review of
the parties.

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III.

ANALYSIS
A. The State Defendants’ Motion for a Stay Pending Appeal
After careful consideration, the Court denies the State Defendants’ motion for a stay of

the preliminary injunction pending appeal for the reasons stated in Plaintiffs’ opposition
memorandum of law. See, supra, Part I.B.2. of this Decision and Order. To those reasons, the
Court adds the following analysis.
1. Strong Showing of Likelihood of Success on the Merits
a. State Defendants’ Arguments About Plaintiffs’ Claims
The Court begins by observing that many of the arguments the State Defendants raise in
support of their motion for a stay are merely elaborations on arguments they previously raised in
their memorandum in opposition to Plaintiffs’ motion for a preliminary injunction or at the
hearing related to that motion. They now submit new evidence in the form of a declaration from
New York State Department of Health Commissioner Dr. Howard Zucker (as well as
declarations from New York State Beverage Control Investigator Daniel Nevins and New York
State Special Operations Unit Investigator Emily Kokotos) in an effort to bolster these
arguments.
The State Defendants’ primary argument is that regular dining in a restaurant is not
sufficiently comparable to attendance at a wedding because (a) weddings involve more direct
interaction between more people than does restaurant dining, (b) weddings last longer than does
restaurant dining, (c) indoor gatherings impose a higher risk of transmission of COVID-19 than
do outdoor gatherings, (d) gatherings where people raise their voices, sing, or shout increase the
risk of transmission of COVID-19, and (e) weddings typically involve many people arriving or
leaving at the same time than does restaurant dining. (Dkt. No. 27, Attach. 6, at 6-7 [State Defs.’
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Mem. Of Law].) The Court notes that many of these bases were already argued by the State
Defendants as part of their opposition to Plaintiffs’ motion for a preliminary injunction and
rejected by the Court. However, because the State Defendants have submitted further evidence
in support of their motion for a stay of the preliminary injunction pending appeal, the Court will
briefly address the State Defendants’ arguments on these issues.
As an initial matter, the Court finds that any arguments about indoor gatherings imposing
a greater risk than outdoor gatherings is of little materiality to the analysis here, because, in its
prior Decision and Order, the Court compared an indoor wedding with indoor dining, and thus
any level of risk associated with the respective activities being held indoors is present in both
activities.
In any event, the Court is not persuaded by the State Defendants’ argument that the
injunction is undermined by the difference between having discrete smaller groups of people
coming and going in a restaurant as compared with a large group wedding guests staying for
multiple hours. Rather, logic suggests that putting a rotating group hundreds of different people
in a space over the course of a night would be more likely to result in COVID-19 exposure than
having a group of 125 to 175 people in the room for the whole night; with constant turnover of
people in the room, the chance that a carrier of the virus will be present at some point would
appear to increase. Additionally, the fact that guests will be present at a wedding for longer
periods of time than regular diners does not mean that those guests will be physically interacting
with individuals beyond their assigned table. It must be remembered that the applicable
protocols require that guests wear a mask and practice social distancing when not seated at their
own table, just as is required in a restaurant setting (and that, here, the venue operator and 24 of

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the core attendees at the Giglia-Durolek wedding have sworn that they will comply with those
protocols). 1
Similarly, as will be discussed below, the fact that patrons arrive and leave at the same
time for a wedding does not constitute a significant difference from ordinary dining. The State
Defendants offer no evidence to suggest that large amounts of people do not arrive at a restaurant
at roughly the same time, particularly during peak dining hours. In any event, even if arriving at
the same time (whether for a wedding or normal dining), social distancing, face coverings, and
other protocols are intended to prevent large groups of people from being in situations where
mass transmission of the virus would occur, regardless of whether they are arriving or departing
at roughly the same time. Moreover, Dr. Zucker renders only a conclusory opinion that arriving
at and leaving a restaurant at the same time greatly increases the probability of transmission of
the COVID-19 virus. 2
The State Defendants also argue that weddings and dining are not sufficiently comparable
because there is a greater risk that guests at a wedding will not follow social distancing protocols
because guests at a wedding are present for the specific purpose of mingling with other guests, a

1

The Court notes that its conclusions about the comparative safety of the Arrowhead’s
Sterling venue are only strengthened by the fact that the venue has a 35-foot high-peak ceiling, a
HEPA filtration system, and two floors of 8- or 6-person tables spread out across 10,000-squarefeet of space that is ordinarily meant to accommodate 438 diners. (James Decl., at ¶ 3 and Exh.
C.) The Court notes further that nowhere in his declaration does Dr. Zucker account for the fact
that, here, the 175 attendees at the Giglia-Durolek wedding (each of whom will have had his or
her temperature checked before entering the venue) would be less than 40-percent of the 438
strangers who would be authorized to (without temperature checks) dine at the venue over the
same four or five hour period under the Governor’s restriction on dining indoor at restaurants.
2

More specifically, Dr. Zucker opines in his declaration that wedding attendees “arrive
and leave at roughly the same time,” which “greatly increase[s] the probability of transmission of
the COVID-19 virus” for reasons “more fully set below.” (Dkt. No. 27, Attach. 3, at ¶ 7 [Zucker
Decl.].) However, he never sets forth those reasons, but merely restates his opinion, rendering
that opinion conclusory. (See, e.g., id., at ¶ 12.d.)
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motivation that is not present in an ordinary dining situation. (Dkt. No. 27, Attach. 6, at 7-8
[State Defs.’ Mem. of Law].) For the sake of argument, the Court will not linger on whether
members of a local community who have encountered each other for the first time after a long
quarantine have less of an incentive to mingle than do family members weary of infecting their
loved ones. More important is that, regardless of what purpose visitors to the venues have, the
Court’s preliminary injunction subjects those visitors to the same rules and protocols.
Although the State Defendants argue that there is no evidence that all guests at the
Giglia-Durolek wedding would comply with social distancing, use of face coverings, or other
safety requirements, there is some such evidence: as the Court has previously stated, here, the
venue operator and 24 of the core attendees at the Giglia-Durolek wedding have sworn that they
will comply with those requirements. Moreover, the State Defendants have not provided any
evidence that any of the remaining guests at the Giglia-Durolek will nonetheless flout these
requirements. If accepted, the State Defendants’ argument would allow the State to justify
almost any restriction on a person’s ability to gather as long as COVID-19 remains a threat due
to the inability to predict human behavior with certainty; and yet, the Governor has allowed
many businesses to operate and gatherings to take place precisely on the assumption that patrons
and guests will comply with the relevant restrictions. 3

3

The Court also notes that the Governor recently announced that schools in the State of
New York will be permitted to open in less than month. Additionally, Plaintiffs’ submission of
evidence reveals that other indoor activities are being allowed at a percentage-capacity that
might exceed the 50-person gathering restriction, including museums at 25-percent capacity and
bowling alleys at 50-percent capacity. (Dkt. No. 31, Attach. 4, at ¶¶ 21-26 [Delgado Decl.].)
Furthermore, gyms and fitness centers will be permitted to open at a third of their capacity as of
August 24, 2020, two days after the Giglia-Dorolek wedding is scheduled to take place. Michael
Gold & Luis Ferré-Sadurní, N.Y. Gyms and Fitness Studios Can Reopen as Soon as Aug. 24,
Cuomo Says, N.Y. Times, (Aug. 17, 2020), https://www.nytimes.com/2020/08/17/nyregion/nycgyms-reopening.html.
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It warrants emphasizing that the assumption that people will “mingle” with each other at
a wedding does not itself lead to an assumption that those people will also not engage in safe
practices such as social distancing and/or mask-wearing while engaging in that mingling.
Furthermore, the State Defendants’ citation to evidence that one-third of Americans nationwide
do not wear masks and that a “significant minority” of New Yorkers do not consistently follow
social distancing protocols are not sufficient to even plausibly suggest that the guests at the
Giglia-Durolek wedding will flout the required protocols. 4 Contrary to the picture that Dr.
Zucker and the State Defendants have tried to paint on this issue, the evidence relied on by Dr.
Zucker states that “[a]n overwhelming number of New Yorkers are adhering to public health
recommendations including social distancing, hand washing and wearing a mask at least as much
as they can if not completely.” 5 In light of such evidence, the State Defendants’ speculation that
wedding guests would not comply with social distancing or face covering requirements is
insufficient to undermine the Court’s rationale for granting the preliminary injunction.
The Court is also not convinced by the State Defendants’ argument that, because the
venue where Plaintiffs’ weddings are being held is not a party to this lawsuit, it would have no
self-interest or motivation to ensure that protocols are enforced during the weddings. To the

4

The Court notes that there are still many states that do not have mandates requiring the
wearing of masks in public places, and that the fact that a minority of New Yorkers do not
always social distance does not suggest that the guests at the Giglia-Durolek wedding (a) are part
of that minority, or (b) would not practice social distancing around their family and friends at a
wedding.
5

(Dkt. No. 27, Attach. 3, at ¶ 16 n.5 [Zucker Decl.] [stating that 73-percent of people
surveyed always wear a mask when social distancing is not possible and an additional 17-percent
wear a mask as much as they can, for a total of 90-percent of people surveyed are typically
wearing a mask in relevant situations, while 56-percent completely adhere to social distancing
requirements and 36-percent social distance as much as they can, for a total of 92-percent of
people surveyed practicing social distancing].)
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contrary, the venue in question has received a cease-and-desist letter from the New York State
Department of Health due to a previous instance in which it was found to be holding a gathering
of approximately 150 individuals who were not wearing face coverings not related to this
lawsuit. (Dkt. No. 27, Attachs. 4 and 5 [Bass Decl.].) Given that it is clear that the venue would
be liable for enforcing (and subject to penalties if they fail to enforce) the relevant restrictions
imposed by New York State regardless of any preliminary injunction by the Court, the Court
cannot say that the venue owner in question will have no incentive to ensure that protocols are
complied with particularly during Plaintiffs’ weddings.
Additionally, the Court finds that the State Defendants’ evidence of past violations of the
50-person gathering restriction and other protocols at the venue in question does not change this
finding. 6 Although the State Defendants submit evidence of complaints received about the
venue’s failure to comply with COVID-19 gathering limitations and other restrictions since July
5, 2020, it appears that no punitive action was taken against the venue until August 5, 2020 (six
days after Plaintiffs filed this action), when the New York State Department of Health issued a
cease-and-desist order against the venue related to having gatherings of more than 50
individuals, after which the venue’s liquor license was suspended on August 6, 2020. (Dkt. No.

6

The Court also notes that, although the evidence adduced by the State Defendants in their
reply was likely available at the time the State Defendants filed their motion for a stay, they
waited until their reply memorandum to submit it. For these reasons, the Court may, and does,
disregard that evidence (including the video of the DiMartile-Crawford wedding ceremony),
particularly because Plaintiffs also have not had a fair and adequate opportunity to respond to
that evidence due to the timing of its submission. See, e.g., Compania Del Bajo Caroni Caroni,
C.A. v. Bolivarian Republic of Venezuela, 341 F. App’x 722, 724 (2d Cir. 2009) (summary order)
(“A district court enjoys broad discretion . . . to rely [or not rely] on evidence submitted with the
reply papers[.]”); Playboy Enters., Inc. v. Dumas, 960 F. Supp. 710, 720 n. 7 (S.D.N.Y.1997)
(“Arguments made for the first time in a reply brief need not be considered by a court.”). For the
sake of thoroughness, however, the Court will, in the alternative, consider the evidence.
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32, Attach. 2, at 2-4, 36-41.) The State Defendants have not provided any evidence that this
enforcement action would not cause the venue owner to be more careful in ensuring that
protocols are followed. 7 To the contrary, Plaintiffs submitted an unrebutted declaration from
Lucas James, co-owner of the venue at which the upcoming wedding will be held, in which Mr.
James states the following: (a) he was present for part of the August 7, 2020, wedding of
Plaintiffs DiMartile and Crawford; (b) neither he nor his staff observed any violations of the
applicable public safety restrictions; (c) he observed a small number of guests from another
wedding walking to a car in the parking lot to potentially consume alcohol, causing staff to
confront the guests and advise them they could not consume alcohol in the parking lot, an order
with which the guests complied; (d) a small number of guests (not from the DiMartile-Crawford
wedding) engaged in lawn games outside; (e) he did not observe any such behavior from guests
at the DiMartile-Crawford wedding; (f) staff moved two tables that were not being used for the
DiMartile-Crawford wedding because inspectors from the Erie County Department of Health and
Erie County Sheriff’s Office deemed them to be too close together; (g) guests at the DiMartileCrawford wedding wore masks when required, socially distanced, remained seated for speeches,
did not dance, and comported themselves in accordance with the restrictions; (h) based on his
personal observation and reports from his staff who were present, all protocols were followed;
and (i) he makes assurances that he and his staff will make their best efforts to ensure that there
will be no violations at the Giglia-Durolek wedding. (Dkt. No. 31, Attach 3 [James Decl.].)

7

Moreover, the Court notes that the July 3 and August 1 misconduct at Arrowhead mainly
involved liquor-sales and dancing, both of which have already been prohibited at the GigliaDurolek wedding. Additionally, other notations of violations were heavily based on exceeding
the 50-person gathering restriction, a factor that is not at issue here because the Court has already
found, by granting the preliminary injunction, that the 50-person gathering restriction does not
apply to the Giglia-Durolek wedding.
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This declaration indeed shows, contrary to the State Defendants’ argument, that Mr. James has in
fact made greater efforts to ensure that protocols are being complied with. Additionally,
Attorney Parker for the County Defendants stated at the hearing that a report made by County
representatives who had inspected the venue that night did not note any compliance violations
related to the DiMartile-Crawford wedding.
Moreover, as the Court has previously stated, Plaintiffs have submitted declarations from
Plaintiffs Giglia and Durolek, and their parents, Albert Giglia, Lynn Giglia, James Durolek and
Rose Durolek, in which they all certify that they will follow (and ensure that guests follow) all
safety and social distancing protocols during the remaining wedding. (Dkt. No. 31, Attach. 2, at
2-12.) Plaintiffs have also submitted declarations from 17 other members of Plaintiffs Giglia and
Durolek’s immediate family, who have all sworn that, at the wedding, they will neither violate
nor tolerate the violation of the Governor’s restrictions related to indoor dining. (Dkt. No. 31,
Attach. 2, at 14-30.) All of this evidence directly contradicts the State Defendants’ assertions
that it is highly unlikely that guests will comply with the required safety protocols if the next
wedding is allowed to proceed.
The State Defendants submitted further evidence along with their reply memorandum of
law related to the likelihood of compliance with the dining protocols, including declarations and
a video of the DiMartile-Crawford wedding ceremony. However, this evidence does not
persuasively show that there were flagrant violations of protocol at the DiMartile-Crawford
wedding, or suggest that there will be violations at the Giglia-Durolek wedding. First, the Court
notes that the only evidence the State Defendants have provided related to the DiMartileCrawford wedding was about the marriage ceremony; they have provided no evidence to
contradict Plaintiffs’ evidence related to any other part of that wedding, including the reception.
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Second, although the video of the ceremony shows a few instances of individuals being close to
one another without masks, the State Defendants have not provided any evidence about the
relationships between those individuals (i.e., whether they are family, or whether they reside in
the same household). Additionally, although the video shows rows of empty chairs where the
guests had been seated previously, it does not show guests seated, and thus there is no evidence
as to whether guests were actually seated shoulder-to-shoulder (or whether there were chairs left
between individuals from different households), or as to whether guests were wearing masks
while seated. On the whole, the evidence provided by the State Defendants does not
persuasively support the State Defendants’ implication that flagrant and dangerous violations of
safety protocols occurred at the DiMartile-Crawford wedding that would undermine the
declarations by the parties, guests, and venue owner about their commitment to ensuring that
protocols are followed at the Giglia-Durolek wedding.
The State Defendants also do not suggest how any issues of noncompliance at the
DiMartile-Crawford wedding (or at a wedding setting in general) would not have occurred had
the wedding been limited to 50 people. Certainly, generally, a larger number of people would
increase the chances that a person testing positive for COVID-19 might be present, but the
number present says nothing about the likelihood that people will comply with the health and
safety protocols; and yet, the Governor allows weddings of 50 people or less without requiring
explicit evidence that those groups will comply with all mandated health and safety restrictions.
The State Defendants’ counsel argued at the hearing that the 50-person limitation was the result
of a judgment call based on all the available data and that allowing a greater number of people
for some activities (i.e., 50-percent capacity for restaurant dining) is due to an analysis of
industry-specific factors that simply do not translate to the setting of a wedding. However, the
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State Defendants did not provide the Court with evidence of this industry-specific analysis in
support of their argument. For all the reasons already discussed, the Court is not persuaded that
there is a rational basis for refusing to apply the restaurant-specific restrictions to the weddings
here.
Lastly, even though Dr. Zucker states now that he has been made aware of fifteen clusters
of COVID-19 within the past few weeks related to indoor dining, New York State continues to
allow dining with the same restrictions. Dr. Zucker also does not provide any information
indicating that these “clusters” were anything more than discrete instances of transmission that
were identified and contained through other protocols such as the New York State’s track-andtrace system. Indeed, as George Delgado, M.D., states in a declaration submitted by Plaintiffs,
contact tracing is perhaps easier for a wedding than for normal dining because the identities of all
guests present at the event are known and easily traceable should an infection be discovered.
(Dkt. No. 31, Attach. 4, at ¶ 16 [Delgado Decl.].) Dr. Zucker in particular has not provided any
information to suggest that these clusters have seriously threatened New York State’s public
health goals or resulted in significant spread of COVID-19; again, the fact that restaurant dining
is still permitted and has not been limited by additional restrictions seems to suggest that is not
the case. Nor has the Court been provided any information as to whether these clusters occurred
in situations where all safety protocols were being followed or if they were the result of
violations of those protocols.
Based on the above, the Court finds that the State Defendants have not made a strong
showing that they are likely to succeed on the merits of their arguments.
b. State Defendants’ Arguments About Procedural Error

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In addition to their arguments about the merits of Plaintiffs’ substantive equal protection
claim, the State Defendants also now assert that the Court erred in applying the normal
preliminary injunction standard rather than the heightened standard because, in granting the
injunction, the Court essentially granted Plaintiffs all the relief that they are requesting (i.e., the
ability to have their weddings with more than 50 people) and such relief cannot be rescinded if
the State Defendants ultimately succeed in this lawsuit.
A movant is held to a heightened standard where “(i) an injunction is ‘mandatory,’ or (ii)
the injunction ‘will provide the movant with substantially all the relief sought and that relief
cannot be undone even if the defendant prevails at a trial on the merits.” New York ex rel.
Schneiderman v. Actavis PLC, 787 F.3d 638, 650 (2d Cir. 2015) (quoting Tom Doherty Assocs.,
Inc. v. Saban Entm’t, Inc., 60 F.3d 27, 33-34 [2d Cir. 1995]). “When either condition is met, the
movant must show a ‘clear’ or ‘substantial’ likelihood of success on the merits, . . . and make a
‘strong showing’ of irreparable harm, . . . in addition to showing that the preliminary injunction
is in the public interest.” Actavis PLC, 787 F.3d at 650 (internal citations omitted).
The Court agrees with the State Defendants that the heightened standard applied to
Plaintiffs’ motion for preliminary injunction. However, the Court’s failure to expressly include
words like “substantial” likelihood of success and “strong” showing of irreparable harm in the
analysis section of its Decision and Order does not somehow invalidate its preliminary injunction
because its Decision and Order granting that preliminary injunction nonetheless shows that
Plaintiffs have met this higher standard.
First, the reasons provided in the Order of August 7, 2020, indicate that Plaintiffs have
shown a substantial likelihood of success on the merits of their equal protection claim.
Specifically, the Court emphasized the similarities between use of a facility for indoor dining and
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use of the same facility for an indoor wedding in determining that Plaintiffs showed a likelihood
of success on the merits of their equal protection claim based on the two very different gathering
restrictions imposed on each use. (Dkt. No. 20, at 21-24 [Decision and Order filed Aug. 7,
2020].) These similarities, as well as the clear difference in treatment without any rational
explanation, are sufficient to constitute a showing of a substantial likelihood of success on the
merits.
Second, Plaintiffs have also made a sufficiently strong showing of irreparable harm to
meet even the heightened standard. As to the State Defendants’ argument that the Court did not
discuss why a finding of irreparable harm was appropriate in the Decision and Order of August
7, 2020, the Court clarifies (as it discusses further in this Decision and Order) that, because the
irreparable harm primarily arises from the fact of an alleged violation of Plaintiffs’ constitutional
rights, the Court’s discussion of the likelihood of success on that claim (which the Court found to
be significant enough to merit a preliminary injunction) provided the justification for that
finding. (Dkt. No. 27, Attach. 6, at 9 [State Defs.’ Mem. Of Law].) In particular, because the
deprivation of a constitutional right is itself the main harm, the likelihood of success on the
constitutional claim is inextricably intertwined with whether irreparable harm exists. See Sajous
v. Decker, 18-CV-2447, 2018 WL 2357266, at *13 (S.D.N.Y. May 23, 2018) (finding that
petitioner had made an adequately strong showing that he would suffer irreparable harm absent a
preliminary injunction because he had demonstrated a substantial likelihood of success on the
merits of his Due Process Clause claim for deprivation of liberty due to unlawful detention);
Donohue v. Mangano, 886 F. Supp. 2d 126, 151-52 (E.D.N.Y. 2012) (noting that, in certain
cases where the loss of constitutional rights constitutes the harm, “the imminent harm inquiry
merges with the likelihood of success analysis,” such that “[t]he likelihood of success on this
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constitutional deprivation is so great that irreparable harm is inevitably shown”). The Court
therefore finds no merit in the State Defendants’ argument that the Court failed to explain the
basis of its irreparable harm finding.
As to the State Defendants’ argument that relying on a “presumption” of irreparable harm
was insufficient, “it is well-settled that an alleged constitutional violation constitutes irreparable
harm.” Basank v. Decker, 20-CV-2518, 2020 WL 1481503, at *4 (S.D.N.Y. Mar. 26, 2020)
(collecting cases); see also Jolly v. Coughlin, 76 F.3d 468, 482 (2d Cir. 1996) (“The district court
therefore properly relied on the presumption of irreparable injury that flows from a violation of
constitutional rights.”); In re Gorsoan Ltd., 18-MC-0431, 2020 WL 4194822, at *7 (S.D.N.Y.
July 21, 2020) (“When an alleged deprivation of a constitutional right is involved, most courts
hold that no further showing of irreparable injury is necessary.”) (quoting 11 C. Wright & A.
Miller, Federal Practice and Procedure, § 2948, at 440 [1973]). Thus, whether the Court termed
its finding “presumptive” or not, the legal authority makes clear that irreparable harm can be
appropriately established through the existence of allegations of a constitutional violation.
This showing of irreparable harm is elevated to a strong showing here based on both (a)
the concurrent showing of a substantial likelihood of success on the merits (as discussed above),
and (b) Plaintiffs’ allegations and evidence that they would suffer other imminent harms in the
absence of an injunction that could not be remedied by ultimate success in this lawsuit. See Yang
v. Kosinski, 960 F.3d 119, 128 (2d Cir. 2020) (finding plaintiffs had made a strong showing of
irreparable harm because, “[b]eyond alleging the violation of their constitutional rights, there can
be no question that Plaintiffs and the Sanders delegates have demonstrated that, without the
requested injunctive relief reversing the effects of the April 27 Resolution, they could neither
compete nor participate in New York’s Democratic presidential primary”); Jolly, 76 F.3d at 47320

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74, 482 (finding that the heightened standard for preliminary injunctions applied, and affirming
that plaintiffs had adequately shown irreparable harm by showing a substantial likelihood of
success on that constitutional claim, as well as providing evidence that he suffered physical
effects of his confinement, “each [of which] serve as an independent basis for the district court’s
conclusion that the plaintiff would suffer irreparable harm in the absence of preliminary
injunctive relief”); Upstate Jobs Party v. Kosinski, 18-CV-0459, 2018 WL 10436253, at *3, 7
(N.D.N.Y. May 22, 2018) (Suddaby, C.J.) (finding that plaintiffs had made a strong showing of
irreparable harm where they alleged a violation of their First Amendment rights and produced
evidence of how defendants’ actions would hinder their actions during the nominating petition
period and would deprive them of the ability to contribute certain money to the UJP); V.W. by
and through Williams v. Conway, 236 F. Supp. 3d 554, 588-89 (N.D.N.Y. 2017) (Hurd, J.)
(finding a strong showing of irreparable harm where [a] plaintiffs alleged a deprivation of
constitutional rights, and [b] submitted evidence that continuing use of solitary confinement on
juveniles put them at serious risk of psychological damage and deprivation of education
services); Sajous, 2018 WL 2357266, at *13 (finding that a substantial likelihood of success on
the merits of a claim alleging violation of the plaintiff’s due process rights related to an unlawful
detention was sufficient to make a strong showing of irreparable harm).
For example, Plaintiffs have made a showing that, in the absence of an injunction, they
would be required to either (a) have their scheduled weddings without certain guests that they
allege are integral to the validity of their marriages according to their Christian or Catholic
beliefs, or (b) postpone their weddings until an uncertain time when larger gatherings are
permitted (either by order of the Governor or by a favorable decision on their lawsuit), which
would deprive them of time as a married couple, among other things. These harms, combined
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with the substantial likelihood of success on their equal protection claim, constitute a sufficiently
strong showing of irreparable harm to sustain the issuance of the preliminary injunction.
Based on the above, the Court finds that, whether or not it framed its findings in the
terminology of the heightened standard for granting a preliminary injunction, the allegations, the
evidence, and the Court’s findings all support a conclusion that Plaintiffs have met that
heightened standard. A stay is therefore not warranted because, despite the State Defendants’
arguments to the contrary, they have not made a strong showing that they are likely to succeed
on the merits of this claim on appeal.
2. Danger of Irreparable Injury to State Defendants if the Stay Is Denied
In support of this factor, the State Defendants essentially argue that allowing Plaintiffs’
weddings to proceed under the terms of the preliminary injunction would pose an unreasonable
risk of a cluster of new COVID-19 infections. (Dkt. No. 27, Attach. 6, at 10-12 [State Defs.’
Mem. of Law].) However, the Court does not find these arguments persuasive. As already
discussed above, the State Defendants have not demonstrated how weddings conducted using the
same restrictions and precautions applicable to indoor dining would pose a significantly greater
danger to public health and safety than conduct that the Governor already permits. Although the
Court certainly recognizes that COVID-19 remains a significant public health concern that
requires careful monitoring, the mere speculative threat of increased infections is not sufficient to
show a danger of irreparable injury without a consideration of the individualized circumstances
of the relevant gathering or activity.
The State Defendants’ citation to gatherings in New Rochelle, New York, and Arkansas
that occurred in February and March as evidence that Plaintiffs’ weddings would pose an
unreasonable risk of becoming “super-spreader” events is also not persuasive. Both of these
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events occurred before the implementation of social distancing and other public health and safety
measures, including the use of masks when in public. As made clear in the Order of August 7,
2020, Plaintiffs’ weddings will be subject to a host of precautionary measures: for example, they
are permitted to have only an amount of people that complies with the 50-percent occupancy
restriction imposed by New York State on restaurants, individuals must wear masks when not at
their tables, tables must be spaced apart, and no dancing will be permitted. (Dkt. No. 20, at 2425 [Decision and Order filed Aug. 7, 2020].) Plaintiffs’ weddings are explicitly subject to all the
restrictions that New York State has deemed acceptable for allowing restaurants to operate. As a
result, the Court cannot say that Defendants have shown that allowing Plaintiffs’ weddings to
proceed in the manner specified by the preliminary injunction would pose the same risk of being
a “super-spreader” event as these past examples that they specifically cite.
3. Substantial Harm to Other Interested Parties
The Court rejects the State Defendants’ argument that there would be no injury to
Plaintiffs Giglia and Durolek if the injunction is stayed. To make such a finding would directly
contradict the Court’s previous finding that Plaintiffs have made a strong showing of irreparable
harm. As the Second Circuit has noted, “the grant of a stay of a preliminary injunction pending
appeal will almost always be logically inconsistent with a prior finding of irreparable harm that
is imminent as required to sustain the same preliminary injunction.” Rodriguez ex rel. Rodriguez
v. DeBuono, 175 F.3d 227, 234-35 (2d Cir. 1999) (“[W]here the order stayed involves a
preliminary injunction, a principle element of which is a finding of irreparable harm that is
imminent, it is logically inconsistent, and in fact a fatal flaw, to subsequently find no irreparable
nor even serious harm to the Plaintiffs pending appeal.”); Rodriguez v. City of New York, 197
F.3d 611, 614 (2d Cir. 1999) (finding that the granting of a stay of a preliminary injunction
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pending appeal negated the district court’s initial finding on the preliminary injunction motion
that the plaintiffs would suffer imminent irreparable harm). The State Defendants’ argument that
Plaintiffs Giglia and Durolek would not be harmed because they could simply have a smaller
wedding or use videoconferencing completely ignores the core allegations of harm underlying
Plaintiffs’ Complaint (i.e., that Plaintiffs’ inability to have a gathering as large as would be
allowed under normal dining conditions at the same venue violates their constitutional rights).
Although the State Defendants’ interest in preventing the spread of COVID-19 is certainly
compelling, it is troubling to this Court that the State Defendants would assert that violations of
rights guaranteed by the Constitution would not constitute a substantial harm. Because the Court
remains convinced of the propriety of its finding that Plaintiffs will suffer imminent irreparable
harm in the absence of the injunction (particularly under the circumstances in this case, where
granting a stay would effectively cut by more than two-thirds the size of the Giglia-Durolek
wedding that is scheduled to take place on August 22), it cannot find that Plaintiffs Giglia and
Durolek would not suffer harm as a result of a stay.
4. Public Interest
Lastly, the Court finds that the public interest does not tip the analysis in the State
Defendants’ favor. Although the public certainly does have an interest in preventing the spread
of COVID-19, the public also has an interest in having constitutional rights protected and not
unduly infringed by unchecked government action. Because of the delicate balance of interests
in this situation, the Court cannot say that the State Defendants have shown that their asserted
interest is so significantly greater than Plaintiffs’ interests in protecting their constitutional rights
such that the balance of the public interest would tip decidedly in their favor.
B. Plaintiffs’ Motion for Sanctions
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After careful consideration, the Court finds that sanctions are not warranted for the
following reasons.
The Court finds, as an initial matter, that sanctions are not procedurally appropriate under
Fed. R. Civ. P. 11 because the State Defendants have not been afforded 21 days to withdraw or
correct their motion as required by the Rule’s safe-harbor provision. Fed. R. Civ. P. 11(c)(2).
See Star Mark Mgmt, Inc. v. Koon Chun Hing Kee Soy & Sauce Factory, 682 F.3d 170, 175 (2d
Cir. 2012) (noting that “[t]he safe-harbor provision is a strict procedural requirement,” and that
“[a]n informal warning in the form of a letter without service of a separate Rule 11 motion is not
sufficient to trigger the 21-day safe harbor period”).
Plaintiffs argue that, in the alternative, the Court may exercise its inherent power to
impose sanctions regardless of whether Fed. R. Civ. P. 11 applies. It is true that “[t]he court has
inherent power to sanction parties and their attorneys, a power born of practical necessity that
courts be able ‘to manage their own affairs so as to achieve the orderly and expeditious
disposition of cases.’” Gissendaner v. Credit Corp. Solutions, Inc., 358 F. Supp. 3d 213, 223
(W.D.N.Y. 2019) (quoting Revson v. Cinque & Cinque, P.C., 221 F.3d 71, 78 [2d Cir. 2000]).
“Sanctions under the court’s inherent power are appropriate when a party ‘has acted in bad faith,
vexatiously, wantonly, or for oppressive reasons.’” Gissendaner, 358 F. Supp. 3d at 223
(quoting Walker v. Smith, 277 F. Supp. 2d 297, 301 [S.D.N.Y. 2003]; Chambers v. NASCO, Inc.,
501 U.S. 32, 43 [1991]). More specifically, sanctions under a court’s inherent power “are
appropriate only if there is clear evidence that the conduct at issue is (1) entirely without color
and (2) motivated by improper purposes.” Wolters Kluwer Fin. Servs., Inc. v. Scivantage, 564
F.3d 110, 114 (2d Cir. 2009). “Conduct is entirely without color when it lacks any legal or
factual basis; it is colorable when it has some legal and factual support, considered in light of the
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reasonable beliefs of the attorney whose conduct is at issue.” Wolters Kluwer Fin. Servs., 564
F.3d at 114. “A finding of bad faith, and a finding that conduct is without color or for an
improper purpose, must be supported by a high degree of specificity in the factual findings.” Id.
The Court finds that, although Plaintiffs are correct that a stay is in most cases
inconsistent with the granting of a preliminary injunction, the Second Circuit has recognized that
such a motion would not be inconsistent in all cases. In particular, the Second Circuit qualified
its decision in Rodriguez ex rel. Rodriguez by stating that “[n]othing in this opinion should be
taken to in any way inhibit a district court from granting a brief stay of a preliminary injunction
in an appropriate case in order to permit the Court of Appeals an opportunity to consider an
application for a stay pending an expedited appeal,” with the purpose to “give the appellate court
an opportunity to decide whether an additional stay and an expedited appeal should be granted.”
Rodriguez ex rel. Rodriguez, 175 F.3d at 235-36. Although not quite stated in such terms, the
State Defendants’ motion for a stay before this Court, combined with their concurrent motion for
a stay and appeal before the Second Circuit, seems to be doing precisely what the Second Circuit
has stated is permitted. Additionally, the Court’s research has shown a multitude of examples of
cases in which a party sought a stay of an injunction pending appeal, and thus the Court is not
convinced that such practice is inherently without legal basis in a general sense. The fact that an
argument may not be supported or ultimately unsuccessful does not make that argument legally
baseless in the sense that it is sanctionable conduct taken in bad faith. Additionally, apart from
generic assumptions about the State Defendants’ intentions and motives, Plaintiff has not
provided any showing that the State Defendants’ conduct was in bad faith. As a result, the Court
finds that the State Defendants’ motion for a stay does not suggest that sanctions are warranted.

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The Court also recognizes that, as a result of Fed. R. App. P. 8, the State Defendants were
required to file a motion for a stay in this Court before filing any such motion with the Second
Circuit unless it could show that “moving first in the district court would be impracticable.” Fed.
R. App. P. 8(a)(1), (a)(2)(A)(i). The State Defendants have attempted to make such an argument
in its submission to the Second Circuit, which was filed on August 14, 2020, approximately two
days after it filed the current motion in this Court. (Dkt. No. 31, Attach. 2, at 39-68.) Although
Plaintiffs argue that filing the motion with both courts is “dilatory motion practice,” the Court
does not agree under the circumstances here. 8 The time limit in this case is understandably short,
given that the remaining wedding is scheduled to take place on August 22, 2020. The State
Defendants were thus in the unenviable position of having to choose between either (a) filing a
motion with this Court to comply with Fed. R. App. P. 8 knowing that they might not have time
to file a motion with the Second Circuit before the upcoming wedding upon receiving this
Court’s decision, or (b) filing a motion with the Second Circuit in the first instance without
knowing whether the Second Circuit will agree with them that obtaining a ruling from this Court
was not practicable. Thus, in this situation, the Court finds that the State Defendants’ filing of
concurrent motions for a stay of the preliminary injunction does not represent bad faith,
vexatious, wanton, or oppressive conduct that would warrant the imposition of sanctions
(although the Court expresses disappointment in defense counsel’s continued pursuit of an
impracticability argument despite her knowledge, by 10:00 a.m. on Monday, August 17, that the

8

The Court notes that the Fifth Circuit recently addressed a similar situation where a
defendant pursued simultaneous motions for a stay before both the district court and the circuit
court. Marlow v. LeBlanc, 810 F. App’x 302, 303-04 (5th Cir. 2020). Although highlighting
that the district court had not yet ruled on the defendant’s motion, the Fifth Circuit did not
chastise the defendant for pursuing identical motions in both courts simultaneously. Marlow,
810 F. App’x at 302-04.
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Court would hold at hearing at 10:30 a.m. on Wednesday, August 19, and that the Court took just
over 3.5 hours to issue a 25-page written decision after its completion of the last hearing on
Friday, August 7).
For all of the above reasons, the Court denies Plaintiffs’ cross-motion for sanctions.
Finally, the Court finds it necessary to emphasize that its preliminary injunction was
expressly limited to these Plaintiffs, who have (along with the venue operator) adduced
unrebutted evidence that they will comply with the restrictions governing indoor dining at this
particular venue at these particular times. Although Plaintiffs Giglia and Durolek (in addition to
21 attendees, the officiant and venue operator) have sworn to follow Defendants’ indoor dining
restrictions at restaurants, the State Defendants have continued to assume noncompliance based
the nature of the event as a wedding, without a rational basis.
ACCORDINGLY, it is
ORDERED that the State Defendants’ motion for a stay of the preliminary injunction
order pending appeal (Dkt. No. 27) is DENIED; and it is further
ORDERED that Plaintiffs’ cross-motion for sanctions (Dkt. No. 31) is DENIED.
Dated: August 19, 2020
Syracuse, New York

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