Bill & Ted's Riviera, Inc. et al v. Cuomo et al

Filing 22

MEMORANDUM-DECISION and ORDER denying #2 Motion for Preliminary Injunction; denying Motion for Class Certification without prejudice with leave to renew; granting in part and denying in part #12 Cross-Motion to Dismiss for Failure to State a Claim, granting as to dismissal against NYS Liquor Authority and denied in all other respects.. Signed by Senior Judge Frederick J. Scullin, Jr on 10/13/2020. (bjw, )

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
______________________________________________
BILL & TED'S RIVIERA, INC. and
PARTITION STREET PROJECT, LLC, on
behalf of themselves and all other similarly
situated individuals,
Plaintiffs,
v.

1:20-CV-1001
(FJS/TWD)

ANDREW M. CUOMO, LETITIA JAMES,
GREELEY T. FORD, EMPIRE STATE
DEVELOPMENT CORPORATION, and
NEW YORK STATE LIQUOR AUTHORITY,
Defendants.
______________________________________________
APPEARANCES

OF COUNSEL

RUPP BAASE PFALZGRAF
CUNNINGHAM LLC
25 Walton Street
Saratoga Springs, New York 12866
-and1600 Liberty Building
424 Main Street
Buffalo, New York 14202-3616
Attorneys for Plaintiffs

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

OFFICE OF THE NEW YORK
STATE ATTORNEY GENERAL
The Capitol
Albany, New York 12224
Attorneys for Defendants

CHRISTOPHER LIBERATI-CONANT, ESQ.

SCULLIN, Senior Judge

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MEMORANDUM-DECISION AND ORDER
I. INTRODUCTION
In their Verified Complaint, Plaintiffs assert a civil rights action pursuant to 42 U.S.C.
§ 1983 against Defendants seeking declaratory and injunctive relief for violations of their rights
under the Equal Protection Clause of the Fourteenth Amendment to the United States
Constitution, as well as a claim under Article 78 of New York Civil Practice Law and Rules,
based on Defendants' promulgation and enforcement of certain Executive Orders.
Pending before the Court are Plaintiffs' motion for a preliminary injunction and class
certification brought by Order to Show Cause, see Dkt. No. 2, and Defendants' cross-motion to
dismiss for failure to state a claim, see Dkt. No. 12. The Court heard oral argument in support of
and in opposition to these motions on September 11, 2020, and reserved decision. The following
constitutes the Court's resolution of these motions. See, generally, Dkt. No. 1, Verified
Complaint.

II. BACKGROUND
On March 7, 2020, Defendant Cuomo issued Executive Order 202, which "declared a
State Disaster Emergency for the State of New York based on the presence of travel-related
cases and community transmission of COVID-19 having been documented in the State." See id.
at ¶ 31. A number of Executive Orders followed. See id. at ¶¶ 35-47. For purposes of this case,
a brief summary of the most relevant of these Executive Orders follows. On May 14, 2020,
Executive Order 202.31 continued, until May 28, 2020, the "'postponement or cancellation of all
non-essential gatherings of individuals of any size for any reason (e.g. parties, celebrations,
games, meetings or other social events). . . .'" See id. at ¶ 39 (quoting [Exhibit "A"] at 70). On

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May 28, 2020, pursuant to Executive Order 202.34, Defendant Cuomo continued the "'required
postponement, cancellation, or restriction on size of all non-essential gatherings of more than ten
individuals[.]'" See id. at ¶ 43 (quoting [Exhibit "A"] at 76). On June 15, 2020, pursuant to
Executive Order 202.42, Defendant Cuomo relaxed the ban on "non-essential gatherings"
pursuant to Executive Order 202.10 to "'allow twenty-five (25) or fewer individuals, for any
lawful purpose or reason, provided that the location of the gathering is in a region that has
reached Phase 3 of the State's reopening, and social distancing protocols and cleaning and
disinfection protocols required by the Department of Health are adhered to.'" See id. at ¶ 46
(quoting [Exhibit "A"] at 87). Finally, Executive Order 202.45, issued on June 26, 2020,
modified previous orders and "'[allowed] gatherings of fifty (50) or fewer individuals for any
lawful purpose or reason, so long as any such gatherings occurring indoors do not exceed 50% of
the maximum occupancy for a particular indoor area, and provided that the location of the
gathering is in a region that has reached Phase 4 of the State's reopening, and provided further
that social distancing, face covering, and cleaning and disinfection protocols required by the
Department of Health are adhered to.'" See id. at ¶ 47 (quoting [Exhibit "A" at 87])
Notwithstanding these restrictions, Plaintiffs allege that Defendants "have created
thousands of exceptions to the 50-person limit by allowing restaurants -- including those
operated by the proposed class members -- to host members of the general public for dinner
service at 50% of their regular maximum capacity." See id. at ¶ 54. Furthermore, Plaintiffs
argue that "Defendants have . . . enforced the 50-person limitation on weddings despite the fact
that attendees at a wedding are obligated to follow the same social-distancing and hygiene rules
and standards as attendees at a restaurant for dinner service as detailed in the Interim Guidance."
See id. at ¶ 57 (citing Ex. C). Plaintiffs assert that they and the proposed class members "are

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deprived of equal protection under the Fourteenth Amendment to the United States Constitution"
because Defendants prohibit them "from hosting weddings in excess of 50 people, while
restaurant service under the same circumstances and at the same locations -- as well as at other
similarly situated locations -- are permitted to seat more than 50 people for dining in a manner
that is deemed safe by the State of New York" as long as they do not exceed 50% of the
maximum capacity of that venue. See id. at ¶ 59.
Specifically, Plaintiffs state that, as applied to Plaintiff Riviera, which has a regular
maximum capacity of 353 people, the rules that Defendants have promulgated for food service
facilities permit it "to provide restaurant service for up to 176 people at one sitting. However,
under the same rules, Riviera is prohibited from hosting a wedding dinner in excess of fifty
people[.]" See id. at ¶¶ 14, 62. Furthermore, with regard to Plaintiff Partition Street, its
Diamond Mills facility "consists of a ballroom with regular maximum capacity of 400 people
and a tavern with regular maximum capacity of 176 people." See id. at ¶ 15. Under Defendants'
rules for food service facilities, "Partition Street is able to provide restaurant service in the
ballroom for 200 people and in the tavern for 88 people. However, under the same rules,
Partition Street is prohibited from hosting a wedding gathering in excess of fifty people[.]" See
id. at ¶ 65.
Plaintiffs argue that "[t]here is no rational basis to justify the disparate treatment of
restaurant service and wedding gatherings[,]" see id. at ¶ 71, and that "Defendants' severe
restriction of wedding gatherings, while permitting numerous other gatherings unrestricted as to
size, is not rationally related to any legitimate state interest and thus cannot survive rational basis
analysis under the Equal Protection Clause[,]" see id. at ¶ 72. Therefore, Plaintiff's assert that
this Court should issue a preliminary injunction and certify the proposed class.

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III. DISCUSSION
A.

Plaintiffs' motion for a preliminary injunction
"'The purpose of a preliminary injunction is . . . to preserve the relative positions of the

parties.'" N. Am. Soccer League, LLC v. U.S. Soccer Fed'n, Inc., 883 F.3d 32, 37-38 (2d Cir.
2018) (quoting Univ. of Tex. v. Camenisch, 451 U.S. 390, 395, 101 S. Ct. 1830, 68 L. Ed. 2d 175
(1981)). "A preliminary injunction is an 'extraordinary and drastic remedy' . . .; it is never
awarded as of right[.] . . ." Munaf v. Geren, 553 U.S. 674, 689-90 (2008) (internal citations
omitted). Generally, a plaintiff who seeks "injunctive relief [that] would 'affect government
action taken in the public interest pursuant to a statute or regulatory scheme, . . . must
demonstrate (1) irreparable harm absent injunctive relief, (2) a likelihood of success on the
merits, and (3) public interest weighing in favor of granting the injunction.'" Murray v. Cuomo,
No. 1:20-cv-03571-MKV, 2020 WL 2521449, *8 (S.D.N.Y. May 18, 2020) (quoting Friends of
the E. Hampton Airport, Inc. v. Town of E. Hampton, 841 F.3d 133, 143 (2d Cir. 2016) (citing
Red Earth LLC v. U.S., 657 F.3d 138, 143 (2d Cir. 2011))).
In a case such as this one, however, in which Plaintiffs seek "a mandatory injunction
against the government that would change the status quo existing when the case was filed . . .
[they are] subject to a heightened standard. Namely, [they] must show 'a "clear" or "substantial"
likelihood of success on the merits.'" Id. (quotation omitted). "Requiring such a heightened
showing is consistent with the principle that 'governmental policies implemented through
legislation or regulations developed through presumptively reasoned democratic processes are
entitled to a higher degree of deference and should not be enjoined lightly.'" Luke's Catering

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Serv., LLC v. Cuomo, No. 20-CV-1086S, 2020 WL 5425008, *5 (W.D.N.Y. Sept. 10, 2020)
(quoting Able v. United States, 44 F.3d 128, 131 (2d Cir. 1995)).
As a first step, the Court will address whether Plaintiffs have demonstrated a clear or
substantial likelihood of success on the merits of their Equal Protection claim.
Among the powers reserved to the States under the Tenth Amendment is the State's
police power, which includes the power and authority "reasonably necessary to 'guard and
protect' public health and public safety, including protecting communities 'against an epidemic of
disease which threatens the safety of its members.'" Luke's Catering Serv., LLC, 2020 WL
5425008, at *6 (quoting [Jacobson, 197 U.S.] at 27, 38) (other citation omitted). In Jacobson v.
Massachusetts, 197 U.S. 11 (1905), the Supreme Court defined the police powers of the State
very broadly, holding that "the rights of the individual in respect of his liberty may at times,
under the pressure of great dangers, be subjected to such restraint, to be enforced by reasonable
regulations, as the safety of the general public may demand." Id. at 29.
Recognizing the rapidly-changing landscape in which we find ourselves as a result of the
current health crisis, Chief Justice Roberts recently explained that the decision as to when to lift
restrictions on particular social activities during a pandemic such as we face with COVID-19 is
ever-changing and subject to reasonable disagreement. See S. Bay United Pentecostal Church v.
Newsom, 140 S. Ct. 1613, 1613 (2020) (Roberts, C.J. concurring). However, our Constitution
entrusts those decisions which affect the health and safety of citizens to state officials who are
politically accountable to those who elected them, particularly when those decisions are
undertaken in situations that are fraught with medical and scientific uncertainty. See id.
(quotations omitted). Unless those officials exceed these broad limits, the federal courts, which
do not have the background, competence or expertise to gauge public health and are not

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accountable to the people, should not second guess their decisions. See id. at 1613-14 (citing
Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528, 545, 105 S. Ct. 1005, 83 L.
Ed. 2d 1016 (1985)).
The State's police power, of course, is not absolute. Where elected officials employ the
state's police power in an arbitrary or oppressive manner, the courts may interfere. See
Jacobson, 97 U.S. at 38. Under the highly deferential Jacobson standard, however, a court's
review is limited to determining whether "'a statute purporting to have been enacted to protect
the public health . . . or the public safety, has no real or substantial relation to those objects, or is,
beyond all question, a plain palpable invasion of rights secured by the fundamental law.'" Luke's
Catering Serv., LLC, 2020 WL 5425008, at *6 (quoting Jacobson, 197 U.S. at 28, 31 (citations
omitted)); DiMartile v. Cuomo, No. 1:20-CV-0859 (GTS/CFH), 2020 WL 4558711, *8
(N.D.N.Y. Aug. 7, 2020) (discussing the effect of Jacobson in the context of the COVID-19
pandemic). Such review includes "asking whether power has been exercised in an 'arbitrary,
unreasonable manner,' [Jacobson, 197 U.S.] at 28, 25 S. Ct. 358, or through 'arbitrary and
oppressive' regulations, id. at 38, 25 S. Ct. 358." In re Abbott, 954 F.3d 772, 784 (5th Cir. 2020)
(citation omitted). "This limited review, however, does not permit courts to pass judgment on
the 'wisdom and efficacy' of the emergency measures implemented." Luke's Catering Serv.,
LLC, 2020 WL 5425008, at *6 (citing In re Abbott, 954 F.3d at 783). Thus, under this limited
review, "no court . . . is justified in disregarding the action of the legislature simply because in its
. . . opinion that particular method was -- perhaps, or possibly -- not the best[.]" Jacobson, 197
U.S. at 35.
There can be little doubt that "[States] . . . ha[ve] a compelling interest in combating the
spread of COVID-19 and protecting the health of [their] citizens." S. Bay United Pentecostal

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Church, 140 S. Ct. at 1614 (Kavanaugh, J., dissenting from denial of application for injunctive
relief). There is also no dispute that Defendant Cuomo issued the Executive Orders at issue
pursuant to New York Executive Law 29-a, which was amended specifically "'to allow for the
protection of the health and safety of New Yorkers due to the threat of the novel coronavirus.'"
Luke's Catering Serv., LLC, 2020 WL 5425008, at *7 (quotation omitted). Therefore, the Court
concludes that, when promulgating and enforcing the challenged Executive Orders, Defendants
were acting within their police power to protect the public health and safety and that,
concomitantly, the measures they took are subject to Jacobson review. See, e.g., id; DiMartile,
2020 WL 4558711, at *9.
The Equal Protection Clause "is essentially a direction that all persons similarly situated
should be treated alike." City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985)
(citation omitted). Furthermore, "the equal protection guarantee . . . extends to individuals who
allege no specific class membership but are nonetheless subjected to invidious discrimination at
the hands of government officials." Harlen Assocs. v. Inc. Vill. of Mineola, 273 F.3d 494, 499
(2d Cir. 2001) (citation omitted). A plaintiff who is not a member of a constitutionally protected
class, "' may bring an equal protection claim pursuant to one of two theories: (1) selective
enforcement, or (2) "class of one."'" AYDM Assocs., LLC v. Town of Pamelia, 205 F. Supp. 3d
252, 265 (N.D.N.Y. 2016) (quotation omitted).
In this case, Plaintiffs bring their equal protection claim under a class-of-one theory. To
succeed under this theory, a plaintiff must establish that he was "intentionally treated differently
from others similarly situated and 'there is no rational basis for the difference in treatment.'" Id.
at 268 (quoting Village of Willowbrook v. Olech, 528 U.S. 562, 564, 120 S. Ct. 1073, 145 L. Ed.
2d 1060 (2000)) (other citation omitted). Moreover, "class-of-one plaintiffs 'must show an

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extremely high degree of similarity between themselves and the persons [with] whom they
compare themselves." Clubside, Inc. v. Valentin, 468 F.3d 144, 159 (2d Cir. 2006) (citation
omitted). However, under the class-of-one theory, a plaintiff is not required to prove "a
defendant's subjective ill-will towards" him; he can prevail on a class-of-one claim based on
similarity alone. Hu v. City of New York, 927 F.3d 81, 93 (2d Cir. 2019).
As the Second Circuit recently noted in Hu, the court set forth its similarity standard for a
class-of-one cause of action in Neilson v. D'Angelis, 409 F.3d 100 (2d Cir. 2005). See Hu, 927
F.3d at 92. Specifically, in Neilson, the Second Circuit "held that, '[i]n order to succeed on a
"class of one" claim, the level of similarity between plaintiffs and the persons with whom they
compare themselves must be extremely high.'" Id. (quoting Neilson, 409 F.3d at 104).
More precisely, a plaintiff must establish that he and a comparator
are "prima facie identical" by showing that "(i) no rational person
could regard the circumstances of the plaintiff to differ from those of
a comparator to a degree that would justify the differential treatment
on the basis of a legitimate government policy; and (ii) the similarity
in circumstances and difference in treatment are sufficient to
exclude the possibility that the defendant acted on the basis of
mistake."
Id. (quoting [Neilson, 409 F.3d] at 105).
In this case, Plaintiffs contend that they meet the high standard of similarity because the
comparators are their own venues when they function as restaurants and other restaurants, see
Dkt. No. 2-2 at 10, 1 and argue further that there is no rational basis for the difference in
treatment when they host patrons for an ordinary dining experience versus when they host
wedding guests who want to dine at the same restaurant and participate in the same activity, i.e.,

1

All references to page numbers to documents in the record are to the page numbers that the
Court's Electronic Filing System generates and appear in the upper right corner of each page.
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dining. See id. Plaintiffs argue that this arbitrary distinction lacks a rational basis and, thus, is a
denial of equal protection of the laws in the most literal sense. See id. at 11-12.
New York's Commissioner of Health counters that "there are many important differences
between wedding celebrations and ordinary restaurant dining, and those differences are highly
significant from a public health perspective." See Dkt. No. 12-4, Declaration of Howard A.
Zucker ("Zucker Decl."), at ¶ 8. For example, Commissioner Zucker notes that, "[a]t a
restaurant, parties come and go at different times, they dine separately from one another, and
they spend, perhaps, an hour or two at a meal," whereas, "[a]t a wedding or other celebratory
event, guests arrive and leave at roughly the same time, they do so for the very purpose of
celebrating together, making mingling among guests expected and inevitable, and they usually
spend far more time in the event space than patrons typically spend dining in a restaurant." See
id. Commissioner Zucker explains that these differences have a significant effect on the
probable transmission of the COVID-19 virus. See id.
In addition, Commissioner Zucker explains that "[t]he number of people in a room is not .
. . the sole determinant of the risk of transmission." See id. at ¶ 13. The risk is much higher
when people arrive and leave at the same time and spend long hours together with the inevitable
mingling and direct interaction between those in attendance for a celebratory purpose, such as a
wedding. See id.
Furthermore, Commissioner Zucker explains that, in deciding to gradually reopen the
State's economy, the COVID-19 Task Force's goal was to balance the needs of each industry
with the health and safety interests of business owners, their employees and customers and the
public at large, "a primary feature of which is to avoid congregating and mingling of people --

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and groups of people anywhere and promote appropriate social distancing of at least six feet
between individuals everywhere." See id. at ¶ 41.
Finally, Commissioner Zucker notes that wedding venues are treated the same as other
businesses, such as museums and bowling alleys, which may in addition to their primary
operations and core activities also host wedding receptions or birthday parties. When those
businesses host such events, they "may not accommodate a social gathering of more than 50
individuals." See id. at ¶ 56; see also Dkt. No. 12-3, Declaration of Adrienne V. Mazeau
("Mazeau Decl."), at ¶ 70.
Although Defendants' arguments appear at first blush to suggest a discriminatory policy,
a closer analysis of the rational basis for the difference in treatment suggests otherwise. As New
York's Commissioner of Health points out, there are rational arguments from which one can
conclude that sufficient differences exist between a venue that hosts the general public for dining
and one that hosts a special social gathering such as a wedding to support the application of
different restrictions.
Furthermore, Judge Skretny recently discussed in Luke's Catering Serv., LLC, New York
is not required to respond to COVID-19 in any particular way 2 and scientific experts may differ
about how best to prevent the transmission of the virus. See Luke's Catering Serv., LLC, 2020
WL 5425008, at *8 (quoting S. Bay United Pentecostal Church, 140 S. Ct. at 1613). Thus, "[t]he
State's chosen response is . . . entitled to deference." Id. (citing Jacobson, 197 U.S. at 30 ("It is
no part of the function of a court or a jury to determine which one of two modes was likely to be

2

For example, New York might react differently and impose different restrictions on social
gatherings or on particular industries than other states for various reasons, including that the
incidence of the virus may differ from state to state as may the density of population or other
circumstances that are particular to some states and not others.
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most effective for the protection of the public against disease . . . That [is] for the [State] to
determine in the light of all the information it had or could obtain.")) (other citation omitted).
It may very well be, as Plaintiffs suggest, that Executive Order 202.45 and the regulations
and restrictions it places on venues that host social gatherings vis a vis restaurants could have
been more equitable, but this is not the test that the Court must apply when reviewing
Defendants' decision. See Jacobson, 197 U.S. at 35. As Chief Justice Roberts explained in S.
Bay United Pentecostal Church, the question of when restrictions on particular social activities
should be lifted during a health crisis, such as the one we currently face, are subject to reasonable
disagreement. See id. at 1613. However, our Constitution entrusts those decisions about the
safety and health of the people to their elected officials; and those decisions, unless arbitrary and
irrational should not be subject to second guessing by unelected judges who are not accountable
to the people and do not have the background, competence, and expertise to assess public health.
See id. at 1614.
Based on the record in this case, the Court cannot conclude that the restrictions that
Defendants have implemented in Executive Order 202.45 and the rules and regulations that
implement that Executive Order are arbitrary or oppressive or bear no substantial relationship to
the public safety concerns, i.e., the spread of COVID-19, that they are intended to address.
Therefore, the Court concludes that Plaintiffs have failed to demonstrate a clear or substantial
likelihood of success on the merits of their Equal Protection claim. Accordingly, the Court
denies their motion for a preliminary injunction. 3

3

Since Plaintiffs have failed to demonstrate the first requirement for imposition of a preliminary
injunction, the Court need not address the other requirements.
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B.

Plaintiffs' motion for class certification
In their Verified Complaint, Plaintiffs assert that they are bringing this action pursuant to

Rule 23(a) and Rule 23(b)(2) of the Federal Rules of Civil Procedure on behalf of themselves
and a proposed class, which they define as follows:
All restaurant, banquet, catering, and dining facilities in New York
State with a maximum occupancy greater than 100 that follow the
"Interim Guidance for Food Services During the COVID-19 Public
Health Emergency," yet are prohibited from hosting wedding
dinners for more than 50 individuals under Executive Order
202.45.
See Verified Complaint at ¶ 25. 4
Plaintiffs assert that the proposed class satisfies the requirements of both Rule 23(a) and
Rule 23(b) of the Federal Rules of Civil Procedure and that class certification is essential to the
fair and efficient adjudication of this action. See Dkt. No. 2-2 at 22. 5
To the contrary, Defendants argue that Plaintiffs have not submitted any evidence that
tends to demonstrate numerosity, commonality, or typicality; and, therefore, the Court should
deny Plaintiffs' motion for class certification. See Dkt. No. 12-1 at 29. Alternatively,
Defendants assert that "class certification is unnecessary at this time, and would be, at best
premature under the circumstances." See id. (citing Ruggles v. Wellpoint, Inc., 253 F.R.D. 61, 66
(N.D.N.Y. 2008)).

4

In response to the Court's question at oral argument, Plaintiffs' counsel clarified that Plaintiffs
were aware that the indoor dining limitation in New York City was 25% of capacity, rather than
the 50% of capacity in other parts of the State, and were not challenging that fact and would
abide by that rule.
5

Plaintiffs request that, if the Court finds that there are issues of fact material to their request for
certification, the Court offer them the opportunity for an evidentiary hearing to resolve those
issues. See Dkt. No. 2-2 at 26 (citation omitted).
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"A district court enjoys broad discretion when it comes to resolving questions of class
certification because it 'is often in the best position to assess the propriety of the class and has the
ability, . . ., to alter or modify the class, create subclasses, and decertify the class whenever
warranted.'" V.W. by and through Williams v. Conway, 236 F. Supp. 3d 554, 572 (N.D.N.Y.
2017) (quoting Sumitomo Copper Litig. v. Credit Lyonnais Rouse, Ltd., 262 F.3d 134, 139 (2d
Cir. 2001) (collecting cases)). Furthermore, when "evaluating a motion for class certification,
the district court is required to make a 'definitive assessment of Rule 23 requirements,
notwithstanding their overlap with merits issues,' and must resolve material factual disputes
relevant to each Rule 23 requirement." Brown v. Kelly, 609 F.3d 467, 476 (2d Cir. 2010)
(quoting In re IPO, 471 F.3d at 41).
Rule 23 sets forth four requirements for class certification:
(1) the class is so numerous that joinder of all members is
impracticable; (2) there are questions of law or fact common to the
class; (3) the claims or defenses of the representative parties are
typical of the claims or defenses of the class; and (4) the
representative parties will fairly and adequately protect the
interests of the class.
Fed. R. Civ. P. 23(a).
"A party seeking class certification must affirmatively demonstrate [its] compliance with
the Rule[.]" Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011).
Furthermore, "[t]o certify a class seeking injunctive relief under Rule 23(b)(2), Plaintiffs
must also show Defendants have 'acted or refused to act on grounds that apply generally to the
class, so that final injunctive or corresponding declaratory relief is appropriate respecting the
class as a whole.'" J.B. v. Onondaga Cnty., 401 F. Supp. 3d 320, 330 (N.D.N.Y. 2019) (quoting
Brown, 609 F.3d at 476 (citing Teamsters Local 445 Freight Div. Pension Fund v. Bombardier

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Inc., 546 F.3d 196, 202 (2d Cir. 2008))). A plaintiff "must establish each of these facts by at
least a preponderance of the evidence." Id.
Although Plaintiffs provide legal argument to support their motion for class certification,
they have not provided specific information from which the Court can properly assess whether,
in fact, class certification is appropriate in this case. Therefore, the Court denies Plaintiffs'
motion for class certification without prejudice and with leave to renew. If Plaintiffs decide to
renew their motion, they must provide detailed evidence, in the form of affidavits and other
documentation, to support their claim that they have satisfied all of the requirements for class
certification under Rule 23(a) and (b)(2). In addition, Plaintiffs shall provide the Court with a
proposed, detailed definition of the proposed class and a proposed class certification order.

C.

Defendants' cross-motion to dismiss for failure to state a claim
The basis for Defendants' cross-motion to dismiss is three-fold. First, they assert that

Plaintiffs' complaint fails to state a claim for violation of the Equal Protection Clause under a
class-of-one theory; and, therefore, the Court should dismiss that claim. See Dkt. No. 12-1 at 2022.
Second, with regard to Plaintiffs' claim under Article 78, Defendants contend that
"[m]ultiple New York courts have found that the federal court does not have subject matter
jurisdiction to hear a claim under . . . Article 78." See Dkt. No. 12-1 at 25 (citing Cartagena v.
City of N.Y., 257 F. Supp. 2d 708 (S.D.N.Y. 2003)). Moreover, they claim that, although the
Second Circuit has not provided a definitive answer, "'New York federal district courts routinely
decline to exercise supplemental jurisdiction over "Article 78 claims."'" See id. (quoting Nitti v.
Cnty. of Tioga, No. 3:14-CV-0954 (GTS/DEP), 2015 U.S. Dist. LEXIS 130685, at *20

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(N.D.N.Y. Sept. 28, 2015)) (citing Bens Bbq v. Cnty. of Suffolk, No. 19-CV-3584 (SJF) (ARL),
2020 U.S. Dist. LEXIS 119878 (E.D.N.Y. July 7, 2020) (collecting cases)). In fact, according to
Defendants, "'district courts are unanimous that "[t]he very nature of an Article 78 proceeding
presents . . . compelling reasons" for declining to exercise supplemental jurisdiction, even
assuming it exists.'" See id. (quoting Singh v. Joshi, 201 F. Supp. 3d 245, 250 (E.D.N.Y. 2016)
(emphasis and alterations in original)). Therefore, Defendants argue that the Court should
decline to exercise supplemental jurisdiction over and dismiss Plaintiffs' Article 78 claim. See
id. at 26.
Third, Defendants argue that the Court should dismiss the complaint against Defendants
Attorney General James, Greeley T. Ford, Empire State Development Corporation and New
York State Liquor Authority because Plaintiffs assert no allegations against these Defendants in
their complaint. See id. at 26 (quoting Mitchell v. Macy's, Inc., 2018 U.S. Dist. LEXIS 165613,
at *16 (S.D.N.Y. Sep. 25, 2018) (stating that "[w]hen a complaint names defendants in the
caption but makes no substantive allegations against them in the body of the pleading, the
complaint does not state a claim against these defendants")).
A motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6) of the Federal
Rules of Civil Procedure "challenges only the 'legal feasibility' of a complaint." Goel v. Bunge,
Ltd., 820 F.3d 554, 558 (2d Cir. 2016) (quoting Global Network Commc'ns, Inc. v. City of New
York, 458 F.3d 150, 155 (2d Cir. 2006)). "To survive a motion to dismiss, a complaint must
contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its
face.'" Ashcroft v Iqbal, 556 U.S. 662, 678 (2009) (quoting [Bell Atl. Corp. v. Twombly, 550
U.S.] at 570, 127 S. Ct. 1955). "The plausibility standard is not akin to a 'probability

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requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully."
Id. (citation omitted).
"While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed
factual allegations . . . a plaintiff's obligation to provide the 'grounds' of his 'entitle[ment] to
relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a
cause of action will not do[.] . . ." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal
citations and quotations omitted). "Determining whether a complaint states a plausible claim for
relief will . . . be a context-specific task that requires the reviewing court to draw on its judicial
experience and common sense." Iqbal, 556 U.S. at 679 (citation omitted). When making its
decision, this court must "accept all well-pleaded facts as true and consider those facts in the
light most favorable to the plaintiff." Chapman v. N.Y. State Div. for Youth, 546 F.3d 230, 235
(2d Cir. 2008) (citing Patane v. Clark, 508 F.3d 106, 111 (2d Cir. 2007) (per curiam)).
Thus, to withstand Defendants' motion to dismiss their equal protection claim, all that
Plaintiffs are required to do is allege sufficient facts – all of which the Court must accept as true
– to state a claim for relief that is plausible on its face. Plaintiffs have met that standard. They
have alleged sufficient facts to state a plausible claim that Defendants have treated them
differently than they have treated similarly-situated establishments. In this regard, Plaintiffs
assert that the challenged executive orders and regulations "treat each proposed class member
differently based solely on whether they are serving dinner to members of the general public or
to people who have gathered in relation to a marriage, even though these two groups of people
are abiding by the same social-distancing and hygiene rules." See Dkt. No. 1, Verified
Complaint, at ¶ 69. Furthermore, they assert that "[t]he degree of similarity between a given
class member serving dinner to members of the public and serving dinner to people gathered in

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relation to a marriage is extremely high as both events are occurring in the same location within
the same venue, and with the same social-distancing and hygiene protocols in effect. In this
way, the ideal comparator of each Plaintiff hosting a wedding is the same Plaintiff hosting
restaurant service." See id. at 70.
Ultimately, Plaintiffs may not prevail on their equal protection claim; but, to withstand a
motion to dismiss, Plaintiffs are not required to demonstrate that they will prevail. What the
Court must determine is whether Plaintiffs' equal protection claim is legally feasible, accepting
as true all of Plaintiffs' well-pleaded allegations, and with no consideration of any defenses or
contrary allegations that Defendants may raise. Based on the factual allegations in Plaintiffs'
Verified Complaint, the Court finds that they have stated a legally sufficient equal protection
claim and, therefore, denies Defendants' motion to dismiss that claim.
With regard to Plaintiffs' Article 78 claim, there is no need for the Court to consider
whether to exercise its supplemental jurisdiction over that claim at this time. If, at some point
during this litigation, the Court dismisses Plaintiffs' equal protection claim, then, at that time, the
Court can decide, in its discretion, whether to "decline to exercise [its] supplemental jurisdiction
over" their Article 78 claim because the court "has dismissed all claims over which it has original
jurisdiction[.]" 28 U.S.C. § 1367(c)(3). Therefore, the Court denies Defendants' motion to
dismiss Plaintiffs' Article 78 claim.
With regard to Defendants' motion to dismiss Plaintiffs' claims against Defendants James,
Ford, Empire State Development Corporation and New York State Liquor Authority, the Court
notes, as an initial matter, that Defendant New York State Liquor Authority, "as an agency of the
State of New York, is not a suable entity." 333 E. 60th Street, Inc. v. N. Y. State Liquor Auth.,
No. 08 Civ. 4147 (RJS), 2008 WL 4104012, *3 (S.D.N.Y. Aug. 29, 2008) (citing Rolle v. New

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York State Liquor Authority, No. 05 Civ. 3536(TPG), 2006 WL 2254807, at *3 (S.D.N.Y. Aug.
7, 2006) ("Defendant, the New York State Liquor Authority, is an agency of the State of New
York, and is therefore shielded from federal suits by the Eleventh Amendment."); see also In re
Deposit Ins. Agency, 482 F.3d 612, 617 (2d Cir. 2007) ("[A] plaintiff may sue a state official
acting in his official capacity – notwithstanding the Eleventh Amendment – for prospective,
injunctive relief from violations of federal law.") (emphasis added)). Therefore, the Court grants
Defendants' motion to dismiss Plaintiffs' complaint against Defendant New York State Liquor
Authority.
According to Plaintiffs' Verified Complaint, Defendant James, who is the Attorney
General of the State of New York, is sued in her official capacity, see Dkt. No. 1 at ¶ 17;
"Defendant Ford was and is the Commissioner of the New York State Liquor Authority and was
and is acting under color of state law, and in his official capacity, at all relevant times," see id. at
¶ 18; 6 and "Defendant Empire State Development Corporation ("ESD") is a New York State
Public Benefit Corporation," see id. at ¶ 19. 7
Although Plaintiffs are correct that "collective" pleading is permissible, at least under
some circumstances, a complaint must, nevertheless, "contain[] . . . allegations indicating how
the defendant violated the law or injured the plaintiff[.]" Morabito v. Blum, 528 F. Supp. 252,
262 (S.D.N.Y. 1981). Furthermore, although "[t]he Federal Rules, as illustrated by Rule 8(a), do
not require that plaintiff set out a defendant's precise role in the injurious conduct . . . [i]t is,

6

Plaintiffs do not indicate whether they are suing Defendant Ford in his official capacity,
individual capacity or both, see id. at ¶ 18. However, given the relief that Plaintiffs seek, the
Court assumes that Plaintiffs are suing Defendant Ford in his official capacity only.
7

Unlike the New York State Liquor Authority, Defendant Empire State Development
Corporation is not a state agency.
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however, constitutionally imperative that defendants are put on notice as to the nature of the
allegations against them." Messina v. Mazzeo, 854 F. Supp. 116, 126 (E.D.N.Y. 1994).
Plaintiffs' allegations against these Defendants are sparse and lack specificity.
Nonetheless, the Court finds that these allegations are sufficient to put Defendants on notice as to
the claims against them. Accordingly, the Court denies Defendants' motion to dismiss Plaintiffs'
claims against Defendants James, Ford, and Empire State Development Corporation.

IV. CONCLUSION
Having reviewed the entire file in this matter, the parties' submissions and oral
arguments, and the applicable law, and for the above-stated reasons, the Court hereby
ORDERS that Plaintiffs' motion for a preliminary injunction, see Dkt. No. 2, is
DENIED; and the Court further
ORDERS that Plaintiffs' motion for class certification, see Dkt. No. 2, is DENIED
without prejudice and with leave to renew; and the Court further
ORDERS that Defendants' cross-motion to dismiss Plaintiffs' complaint, see Dkt. No. 12,
is GRANTED insofar as it seeks the dismissal of Plaintiffs' complaint against Defendant New
York State Liquor Authority and is DENIED in all other respects.

IT IS SO ORDERED.

Dated: October 13, 2020
Syracuse, New York

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