The Cloister East, Inc. v. New York State Liquor Authority

USDC SDNY

UNITED STATES DISTRICT COURT DOCUMENT

SOUTHERN DISTRICT OF NEW YORK ELECTRONICALLY FILED

. |! wy 8

Ficus bes □□□ PROC

ING EF Bl DATE FILED:_4/2.3/2.|

Plaintiff,

-against- 20-cv-6545 (LAK)

NEW YORK STATE LIQUOR AUTHORITY, et al.,

Defendant.

ee ee ee ee ee ee □□ ee ee ee □□ ee K

MEMORANDUM OPINION

Appearances:

Robert Garson

Kevin Kehrli

Jacob Pargament

GARSON, SEGAL, STEINMETZ, FLADGATE LLP

Attorneys for Plaintiffs

James B. Cooney

Benjamin D. Liebowitz

Matthew L. Conrad

Assistant Attorney General

LETITA JAMES

ATTORNEY GENERAL OF THE STATE OF NEW YORK

Attorneys for Defendants

LEWIS A. KAPLAN, District Judge.

Life in New York changed dramatically in March 2020 when the Governor of New

York declared a state of emergency due to the COVID-19 pandemic.’ Almost immediately, movie

N.Y. Exec. Order No. 202.

theaters, gyms, and other venues were directed to shut down. Restaurant and bars were permitted

to serve food for off-site consumption only.’

For many months thereafter, New York struggled to stem the spread of the COVID-

19 virus. From February 29 to June 1, 2020, more than 200,000 cases of COVID-19 were reported

in New York City alone, resulting in more than 18,000 deaths.2 The pandemic brought

unprecedented challenges also to those lucky enough to stay healthy, From February to April 2020,

nearly two million New Yorkers lost their jobs.* And all New Yorkers had to contend with many

months of “lockdown” and the isolation and uncertainty that ensued.

As the summer approached, New Yorkers understandably were eager to return to

some semblance of normal life and commerce. Nonetheless, a state of emergency remained in effect,

and reopening occurred in cautious phases. To that end, the Governor issued an executive order on

June 6, 2020 allowing restaurants and bars to serve food and beverages only outdoors and in

compliance with guidelines promulgated by the New York Department of Health (the “DOH”).°

N.Y. Exec, Order No. 202.3.

Corinne N. Thompson, Jennifer Baumgartner, et al., COVID-19 Outbreak — New York

City, February 29—June 1, 2020, Morbidity and Mortality Weekly Report 2020;

69:1725-1729, U.S. CENTER FOR DISEASE CONTROL AND PREVENTION,

https://www.cde.gov/mmwr/volumes/69/wr/mm6946a2.htm?s_cid=mm6946a2_w (last

visited Sept, 22, 2021).

New York’s Economy and Finances in the COVID-19 Era, OFFICE OF THE COMPTROLLER,

https://www.ose.state.ny.us/reports/new-yorks-economy-and-finances-covid-19-era-mar

ch-30-2021 (last visited Sept. 9, 2021).

N.Y. Exec. Order No. 202.38,

This case involves one particular effort by the New York State Liquor Authority’s

(the “SLA”) efforts to enforce those guidelines. Plaintiffs — The Cloister East, Inc., which operates

a restaurant known as Cloister Café, and its owners — claim that the SLA improperly suspended their

liquor license after an article published on the Gothamist.com reported that Cloister Café was hosting

illegal “pandemic parties.” They seek damages, declaratory and injunctive relief pursuant to 42

U.S.C. § 1983 based on alleged violation of their constitutional rights by the SLA and various of its

officers and employees.

Background

L Executive Orders and DOH Guidance

Executive Order 202.38, issued on June 6, 2020, allowed a restaurant or bar to serve

patrons “on-premise only in outside space, provided such restaurant or bar is in compliance with

Department of Health guidance promulgated for such activity.”® The applicable DOH guidance

(the “DOH Guidance”) defined “outdoor spaces” as “open-air space designated for the

consumption of food and/or beverage,” which may have a “temporary or fixed cover” if the “cover

has at least two sides open for airflow.” The guidelines did not set occupancy limits for outdoor

spaces. However, they directed that “[t]o minimize further spread, social distancing of at least six

Id.

Interim Guidelines for Outdoor and Take-out/Delivery Food Services During the COVID-

19 Public Health Emergency, NEW YORK STATE DEPARTMENT OF HEALTH,

https://www.governor.ny. govw/sites/default/files/atoms/files/OutdoorTakeoutDeliveryFoo

dServicesMasterGuidance.pdf (last visited Sept. 22, 2021) at 3.

feet must be maintained between individuals, where possible.”* To that end, the guidelines

required that “outdoor capacity [must be] limited to the number of tables that can be safely and

appropriately arranged such that each table is a minimum of six feet away from another.’ It

mandated also that tables be limited to 10 patrons each and that “individuals seated at a table [] be

members of the same party,”

The Governor subsequently issued Executive Order 202.43, which, in order to

“prevent|ed] the unnecessary congregation of people to slow the spread of [COVID-19],” provided

that restaurants and bars were required to ensure that the social distancing and face covering

requirements set forth in the DOH Guidance were followed by all persons within 100 feet of the

premises.!' If these requirements were not adhered to, the restaurant or bar was required to cease

serving alcoholic beverages.”

Finally, Executive Order 202.52 directed restaurants and bars to serve alcoholic

beverages only if accompanied by food items.'’ It emphasized also that while New York State had

succeeded in lowering the COVID-19 infection rate through the state’s careful approach to

Id. atl.

Id.

10

Id, at 4.

N.Y. Exec, Order No, 202.43.

12

Id.

13

N.Y, Exec. Order No. 202.52,

reopening, it was “incumbent” upon “business owners and local governments” to continue to

“enforce public health requirements to allow [the] safe reopening to continue.”"

iT. The SLA's Authority and Procedures

The SLA is an agency of the State of New York that is responsible for administering

the New York State Alcohol Beverage Control Law. The SLA may suspend, cancel, or revoke a

liquor license “for cause.”!° “Cause” includes “the existence of a sustained and continuing pattern

of noise, disturbance, misconduct, or disorder on or about the licensed premises, related to the

operation of the premises or the conduct of its patrons, which adversely affects the health, welfare

or safety of the inhabitants of the area in which such licensed premises are located.”!®

Generally, it may suspend, cancel, or revoke a license only “after a hearing at which

the licensee shall be given an opportunity to be heard.”!’ However, Section 401, subd. 3, of the New

York State Administrative Procedure Act (“SAPA”) allows state agencies — including the SLA — to

order the summary suspension of a license if it “finds that public health, safety, or welfare

14

id.

15

N.Y, Alco. Bey, Cont. Law § 118.

16

Id. at § 118(3).

17

Id. at § 119(2).

A more detailed discussion of these provisions is set forth in the Court’s prior decision

denying plaintiffs’ motion for injunctive relief. See Cloister E., Inc. v. New York State

Liquor Auth., 483 F. Supp. 3d 221, 227-9 (S.D.N.Y. 2020).

imperatively requires emergency action.”'* In such cases, the SLA is not required by statute to

provide notice or an opportunity to be heard before ordering a summary suspension. Instead, a

summary suspension order takes effect “pending proceedings for revocation or other action,” which

“shall be promptly instituted and determined.”

HL. The Events of August 2020

On August 4, 2020, the Gothamist.com, an online outlet, published an article that

claimed that Cloister Café was hosting “illegal, illicit pandemic parties.” Allegedly prompted by

that article, Officer Charles R. Stravalle — an investigator for the SLA — visited the restaurant at

around midnight on August 7, 2020.7" According to the amended complaint, Stravalle inspected the

operation and spoke with Cloister Café’s owner “on several topics, none relating to COVID-19

enforcement.’”?? The amended complaint does not describe Stravalle’s investigation in detail aside

from alleging that he mistook a canvas covering above a patio area as a ceiling and “failed to notice”

that there were only two walls enclosing that space.” Plaintiffs assert that Stravalle failed to conduct

18

N.Y. S.A.P.A. § 401.

19

fd.

20

Amended Complaint [Dkt. 16] (hereinafter “Am. Compl.”) at 39.

al

Id. at 4940, 42.

22

Id. at Ff 42, 44. . □

23

Td. at 443.

a proper investigation and caused an erroneous report to be submitted to the board of the SLA (the

“SLA Board”).”

Later on that same night, the SLA Board met by video-conference to vote on whether

to suspended Cloister Cafe’s liquor license.” Plaintiffs were not notified of this meeting and

accordingly were not provided an opportunity to be heard.”

At that meeting, Margarita Marsico — associate counsel for the SLA ~ allegedly

presented incorrect and misleading information to the SLA Board. According to the amended

complaint, Marsico described Cloister Café’s outdoor area as a “secret backyard,” despite the fact

that Cloister Café had been “legally permitted” to serve food in that area for many years.*’ In

particular, plaintiffs allege that Marsico told the SLA Board that there was “an illegal structure that

was really three walls of neighboring buildings with a ceiling on top.” They allege that this

statement was misleading because Marsico failed to explain that the ceiling was actually a “cloth

awning,” that there were “only two walls of neighboring buildings,” and that the “temporary

24

Td. at $9 88-91,

25

Id. at $46.

26

ld.

27

Id. at J 57-58.

28

id, at 761.

enclosure [had been] approved by the Department of Buildings and that the space is deemed to be

an outdoor space.””’

Plaintiffs allege also that Marsico incorrectly informed the SLA Board that the

maximum capacity at Cloister Café was “half of seventy-four” and that it was “way over

occupancy.””? They allege that Marsico “failed to inform the Board that the amount of people

present in the Cloister Café was within the parameters of permitted occupancy.”*' Likewise, they

allege that Gary Meyerhoff, the SLA’s general counsel, “made incorrect assertions of fact and law

to the Board that there were seventy (70) people ‘inside’ and the presence of patrons at Cloister Café

was illegal.”” Plaintiffs allege also that Marsico told the SLA Board that there was a live DJ on the

premises and that the receipts for food items appeared suspicious, suggesting that Cloister Café had

been serving alcohol without any food, contrary to Executive Order 202,52.”

Finally, plaintiffs allege that Marsico improperly relied on the Gothamist.com article

and provided it to the SLA Board.” They further contend that the SLA Board improperly relied on

29

Id. at $$] 62-65.

Id. at 979.

31

Id. at $80.

32

Id. at 4 66,

33

Id. at $971, 73, 86.

34

Id. at 92-93.

the Gothamist.com article despite being “well aware” that the article was more prejudicial than it was

probative.*

Based on the information provided by Marsico and Meyerhoff, the SLA Board voted

to issue an emergency order suspending Cloister Cafe’s liquor license pursuant to Section 401(3) of

the SAPA (the “Suspension Order”).** In the Suspension Order, the SLA Board explained that it had

been provided with evidence that patrons were observed inside Cloister Café and in a backyard area

within an enclosure made of three walls and a fabric roof.*” It stated also that evidence had been

presented that patrons were observed drinking alcohol and “mingling amongst each other,”* Based

on those reports, it stated that the SLA Board had concluded that plaintiffs were violating one or

more executive orders, which “creates a serious and continuing risk to the health, safety and welfare

of the public.”®® It therefore concluded that it was “imperative that emergency action be taken

against the immediate and continuing danger” resulting from plaintiffs’ conduct.” According to the

Suspension Order, that decision was voted on by the chairman of the SLA, Vincent Bradley, and

33

Id. at 4994, 103, 105.

36

id, at J 120.

37

Dkt. 30-7 at J 6.

38

Id. at 47.

39

Id. at 49 8-9.

40

Id, at | 10.

10

SLA commissioners Lily Fan and Greeley Ford."' In addition to voting for the summary suspension,

Chairman Bradley allegedly stated that “he would recommend that Cloister Café should not get its

license back permanently without any hearing.”

Shortly thereafter, as required by Section 401(3) of the SAPA,” the SLA served

plaintiffs with notice of an administrative proceeding to revoke or cancel Cloister Café’s liquor

license (the “Notice of Pleading”).“* Among other charges, the Notice of Pleading claimed that

plaintiffs had violated Executive Order 202.43*° which, as discussed above, required restaurants

to ensure compliance with applicable DOH Guidance within 100 feet of the premise.”°

LV. Prior Proceedings

Following these events, plaintiffs brought this action against the SLA and SLA officers

and employees Stravalle, Marsico, Meyerhoff, Bradley, Fan, Ford, and Donohue (collectively the

4l

Td, at 2, 5.

42

Am, Compl. at 7 108.

43

N.Y. S.AP.A. § 401(3)(requiring that the SLA “promptly” initiate “proceedings for

revocation or other action” following a summary suspension).

Ad

Dkt. 30-8,

45

id. at 1.

46

Executive Order 202.43 at 2.

Plaintiffs claim that the Notice of Pleading, unlike the Suspension Order, did not charge

Cloister Café with operating an enclosed structure or serving alcohol without food.

Am. Compl. at {§ 111-2, 121, However, as noted, the Notice of Pleading’s first charge

encompasses violations of the DOH Guidance.

11

“Individual Defendants”) in their individual capacities. The amended complaint asserts three claims:

First, plaintiffs allege that the failure to provide a hearing before issuing the Suspension Order

violated their right to procedural due process.” Second, they contend that the revocation hearing

violated their right to procedural due process because Chairman Bradley recommended permanently

revoking Cloister Café’s liquor license even before the revocation proceeding began.” Finally, they

claim that they were denied equal protection of the laws because the SLA Board unfairly considered

a “third-party publication” —i.c., the Gothamist.com article — in deciding to suspend Cloister □□□□□□

liquor license.”

Plaintiffs moved for a temporary restraining order (“TRO”) and a preliminary

injunction barring enforcement of the Suspension Order. In so doing -- and evidently aware of the

fact that a procedural due process claim based on predeprivation lack of notice and an opportunity

to be heard may fail where the state affords a prompt and effective post-deprivation remedy □

plaintiffs asserted that there was no such remedy for summary suspension of their liquor license.

This, they argued, was attributable to the fact that the SLA “routinely seeks to insulate itself from

Article 78 review” of such suspensions in the New York courts by contending that summary

suspensions are not final agency actions under SAPA and that it has been successful in doing so,

While this Court denied the plaintiffs’ application for a TRO, it noted that:

47

Id. at { 138.

48

Id. at 4146.

49

Id. at □□ 154.

50

Dkt. 5, at 20-21,

12

“Tt ill behooves the SLA to argue in this Court that prompt and effective review

of summary suspension orders may be had in Article 78 proceedings in state court while

repeatedly arguing just the opposite in state courts. Moreover, the fact that it has prevailed

on this issue in some state courts raises a serious question as to whether there is any

prompt and effective state court remedy.””!

The defendants’ response with respect to this issue was more significant for what it

did not say than for what it did. To be sure, it argued that the due process claim should fail because

there were adequate post-deprivation remedies. But those supposedly adequate remedies all were

within the SLA: some formally available, some allegedly available on an informal basis to those who

know enough to ask, and none available by means of judicial review,” And the defendants were

entirely silent with respect to plaintiffs’ showing that the SLA repeatedly has taken the position, some

times successfully, that summary suspensions are not reviewable in the state courts.”

Some days later, defendants — perhaps sensing the quarter from which wind was

blowing — finally engaged with the fact that the SLA’s position with respect to review via state court

Article 78 proceedings of summary license suspensions might be a serious problem for them —

changed their position. In a letter to the Court, it stated that “upon further consideration” that it

“aoree[d] that its Orders of Summary Suspension of License, issued pursuant to [SAPA Section]

401(3), can be subject to judicial review in New York State Supreme Court pursuant to Article 78 of

the N.Y. Civil Proc. Law and Rules.”*? However, as the Court noted previously, “[t]he phrase □□□□

5]

Dkt. 15, at 6 (footnote omitted).

52

Dkt 27, at 18-23.

53

Dkt. 27 passim,

Dkt. 50 at 1.

13

be’ [made] this statement essentially meaningless, because it [left] open the possibility that the SLA

believes that in some and perhaps virtually all instances, such orders may not be reviewed in an

Article 78 proceeding,””’

The SLA told the Court also that it “further agree[d]” that “it [would] not raise as a

defense or objection in point of law that [a New York State court in an Article 78 proceeding] lacks

jurisdiction to review the August 7th Suspension Order on the grounds that it is a non-final order or

otherwise.” As the Court noted at the time, “the word ‘further’ again suggest[ed] that the SLA has

not taken any meaningful position on the law.”°”

Nonetheless, based on the SLA’s representations, the Court denied plaintiffs’ motion

for injunctive relief because, among other reasons, it concluded that an adequate post-deprivation

hearing would be available to plaintiffs in the form of an Article 78 proceeding.** That denial,

however, was without prejudice to renewal if plaintiffs ultimately were unable to obtain judicial

review of the Suspension Order in an Article 78 proceeding.”

55

Cloister E., 483 F. Supp. 3d at 238 n, 81.

56 .

Dkt. 50 at 1,

Cloister F., 483 F. Supp. 3d at 238 n. 81.

58

Cloister E., 483 F. Supp. 3d at 241-43.

59

Id, at 244,

14

Following that decision, plaintiffs filed an Article 78 petition before Justice Engoron

in New York State Supreme Court. On September 11, 2020, Justice Engoron issued a TRO vacating

the Suspension Order pending a hearing on the Article 78 petition.”’ Subsequently, the SLA voted

to rescind the Suspension Order. Accordingly, Justice Engoron determined that the Article 78

proceeding was moot and denied plaintiffs’ Article 78 petition.”

Having thus defeated plaintiffs’ attempt to obtain judicial review of the Suspension

Order, the SLA began the administrative hearing on the its petition to revoke or cancel Cloister Café’s

liquor license shortly thereafter. On December 1, 2020, the administrative law judge (ALJ)

sustained 16 of the SLA’s charges, including charges related to COVID-19 and other safety

violations.“ Following that decision, the SLA board voted to adopt the ALJ’s findings and canceled

Cloister Café’s liquor license.

On February 18, 2021, plaintiffs filed a second Article 78 petition in New York State

Supreme Court challenging the SLA’s cancellation of Cloister Café’s liquor license.“ On

60

Declaration of Matthew L. Conrad [Dkt. 67] (hereinafter “Conrad Decl.”), Ex. H; Inre The

Cloister East, Inc., Index No. 157157/2020 (N.Y. Sup. Ct.), Doc No. 1.

61

id, at Doc No. 38,

62

Id. at Doc No. 72.

63

Conrad Decl., Ex. L at 26-29,

The ALJ concluded also that Cloister Café failed to disclose in its licensing form that it was

legally dissolved in 1993 due to an outstanding warrant for approximately $144,000 in

unpaid taxes, /d. at 34-35,

64

In re The Cloister East, Inc., Index No. 151728/2021 (N.Y. Sup. Ct.), Doc No. 1.

15

March 4, 2021, the state court temporarily vacated the cancellation order pending the Article 78

hearing. However, on April 19, 2021, the court dismissed the Article 78 petition on the ground that

Cloister Café had been administratively dissolved in 1993 for failing to pay taxes and thus lacked

legal capacity to sue. That decision also rescinded the prior order temporarily vacating the

cancellation of Cloister Café’s liquor license.® Plaintiffs subsequently filed a notice of appeal from

that decision and moved to renew their Article 78 petition on the grounds that Cloister Café has paid

its outstanding tax liability and been reinstated. That application remains pending.

Defendants now move to dismiss the claims against them. First, the SLA argues that

plaintiffs claims against it are barred by the Eleventh Amendment, Second, the Individual Defendants

contend that the amended complaint fails to state a sufficient claim against them and that they are

entitled to dismissal based on qualified immunity for any allegedly unlawful conduct. For the reasons

discussed below, defendants’ motion is granted albeit with leave to replead.

65

id., Doc No. 55.

66

Id., Doc No. 71.

67

dd.

68

Id., Doc, Nos. 73, 105,

16

Discussion

Claims Against the SLA — Sovereign Immunity

The Eleventh Amendment bars the Court from entertaining a “suit brought by a citizen

against his own State.” This “assertion of sovereign immunity implicates jurisdictional concerns.”

Accordingly, “whether or not sovereign immunity bars a claim is properly decided under a Rule

12(b)(1) motion.””!

“A party seeking to invoke the subject matter jurisdiction of a Court has the burden

of demonstrating that there is subject matter jurisdiction in the case.”” In deciding whether there is

jurisdiction over a claim, the Court “must accept as true all material factual allegations in the

complaint, but [does] not.,. draw inferences from the complaint favorable to plaintiffs."” The court

may also look to evidence outside of the pleadings to determine whether there is jurisdiction.”

Here, plaintiffs do not dispute that the Eleventh Amendment applies to claims against state

agencies such as the SLA.” They argue, however, that the SLA waived its sovereign immunity and,

69

Pennhurst State Sch, & Hosp. v. Halderman, 465 U.S. 89, 98 (1984).

Hale v. Mann, 219 F.3d 61, 67 (2d Cir, 2000).

71

Goonewardena v. New York, 475 F. Supp. 2d 310, 321 (S.D.N-Y. 2007).

7.

Shenandoah v, Halbritter, 366 F.3d 89, 91 (2d Cir. 2004).

73

JS. exrel. NS. v. Attica Cent. Sch., 386 F.3d 107, 110 Qd Cir, 2004).

dd.

See Tessler y. Paterson, 768 F. Supp. 2d 661, 672 (S.D.N.Y. 2011) (The Eleventh

Amendment bars claims against the Division of Alcoholic Beverage Control, a/k/a the New

17

in any case, that their claim for injunctive relief is not barred by the Eleventh Amendment by virtue

of Ex Parte Young.” For the reasons discussed below, the Court disagrees.

A, Waiver

According to plaintiffs, the SLA waived its sovereign immunity “[b]y first conceding

that Article 78 was the proper forum for review, then intentionally (and vindictively) eliminating that

forum by withdrawing the suspension for the sole purpose of mooting the proceeding.””” While the

SLA’s gamesmanship is not lost on the Court, this behavior cannot properly be considered a waiver

of its sovereign immunity.

“(A] State’s constitutional interest in immunity encompasses not merely whether it

may be sued, but where it may be sued.””* Accordingly, “there will be no waiver of immunity against

federal suit unless the state specifies its intention to consent to suit in federal court.”” “Consent to

suit in state court” therefore “does not confer federal-court jurisdiction over states and their

agencies.”®? Based on these principles, the SLA’s consent to suit in an Article 78 proceeding in New

York State court did not waive its immunity to suit in this Court.

York State Liquor Authority).

% 209 ULS. 123 (1908).

Opp. [Dkt. 72] at 13.

78

Minotti v. Lensink, 798 F.2d 607, 610 (2d Cir. 1986) (quoting Pennhurst, 465 US. at 99).

79

Id. (citing Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 241, (1985)).

80

Cajuste v. Lechworth Developmental Disabilities Sery., No. 03-cv-0161 (RCC), 2005 WL

22863, at *3 (S.D.N.Y. Jan. 5, 2005),

18

The SLA’s decision to rescind the Suspension Order is even less relevant to whether

it waived its sovereign immunity. While that decision may have mooted plaintiffs’ Article 78

proceeding, it does not follow that the SLA now is amenable to suit in this Court. There has been no

“express” and “unequivocal” consent to suit in this Court.*!

B. Ex Parte Young

Notwithstanding the Eleventh Amendment, Ex Parfe Young generally allows claims

for injunctive relief to proceed against states and state agencies.” “In determining whether the

doctrine of Ex parte Young avoids an Eleventh Amendment bar to suit, a court need only conduct a

‘straightforward inquiry into whether [the] complaint alleges an ongoing violation of federal law and

seeks relief properly characterized as prospective.”””’

Plaintiffs argue that their claim for injunctive relief may proceed against the SLA.

However, the amended complaint seeks injunctive relief only to “stay[] the suspension of plaintiffs’

liquor license.”** The SLA rescinded the Suspension Order after it was stayed by Justice Engoron

during plaintiffs’ first Article 78 proceeding.” In addition, the Suspension Order suspended Cloister

“81

Doe v. Pataki, 481 F.3d 69, 78 (2d Cir. 2007) (quoting College Savings Bank v. Florida

Prepaid Postsecondary Education Expense Board, 527 U.S, 666, 680 (1999).

§2

209 U.S. 123 (1908).

83

Verizon Maryland, Inc, y. Pub. Serv. Comm'n of Maryland, 535 U.S. 635, 645 (2002)

(quoting Idaho v. Coeur d''lene Tribe of Idaho, 521 U.S, 261, 296 (1997).

8d

Am. Compl. at the Wherefore Clause.

85

See Inve The Cloister East, Inc., Index No. 157157/2020 (N.Y. Sup. Ct.), Doc Nos. 38, 72.

19

Café’s liquor license only “until such time as [that] Order [was] lifted, or until a final Order [became]

effective in connection with the disciplinary proceeding directed [t]herein to be commenced by the

State Liquor Authority.’"* Those disciplinary proceedings now are complete and resulted in the

cancellation of Cloister Café’s liquor license. Accordingly, the Suspension Order has been stayed,

rescinded, and — by its own terms — no longer is in effect.*’ Any constitutional violation in the

issuance of the Suspension Order no longer is “ongoing.” No relief from that order would have any

“prospective” effect.”

Plaintiffs argue that injunctive relief nonetheless remains necessary because the SLA

continues to violate their right to due process and thus may suspend their liquor license in the future.

The Court largely agrees with plaintiffs that the SLA’s behavior in this case is troubling. Its actions

in this litigation — in the context of prior state court cases challenging summary suspension orders —

appear to be bad faith efforts to avoid judicial review of its summary suspension orders, In fact, even

after representing to the Court that the Suspension Order would be subject to Article 78 review, the

SLA mooted plaintiffs’ Article 78 petition so that the Suspension Order would be unreviewable.

Nevertheless, this Court cannot avoid the conclusion that, for this particular plaintiff,

there no longer is any ongoing violation which realistically could be remedied by injunctive relief

staying the Suspension Order. To date, Cloister Café’s liquor license has been cancelled and their

86

Dkt. 30-7 at 5.

87

In opposing defendants’ motion to dismiss, plaintiffs appear to seck injunctive relief from

various alleged misconduct. However, the amended complaint seeks an injunction staying

enforcement of the Suspension Order only. Am. Compl. at the Wherefore Clause.

a8

Verizon Maryland, Inc. v. Pub, Serv. Comm'n of Maryland, 535 U.S. 635, 645 (2002)

(quoting Idaho y. Coeur d’ lene Tribe of Idaho, 521 U.S. 261, 296 (1997).

20

Article 78 petition challenging that order has been dismissed on the ground that Cloister Café lacks

legal capacity to sue.*? While Cloister Café has moved for renewal and appealed from the state

court’s dismissal,” it is unclear whether the Article 78 proceeding will be reinstated. Critically, even

ifit the Article 78 action were to proceed, it would remain speculative whether plaintiffs will succeed

in vacating the cancellation of Cloister Café’s liquor license.’ Finally, even if their liquor license

were reinstated, plaintiffs have not established that it would be reasonable to expect that any alleged

constitutional violation from the summary suspension would recur. Accordingly, an injunction

staying the suspension of Cloister Café’s liquor license no longer would provide plaintiffs with any

relief.

Finally, plaintiffs’ reliance on the Court’s prior denial of their motion for a preliminary

injunction “without prejudice to renewal if any Article 78 proceeding . . . does not result in

disposition on the merits”” is misplaced. A denial without prejudice is not a guarantee that the claim

for injunctive relief will remain relevant regardless of the circumstances.”

a9

Inve The Cloister East, Inc., Index No. 151728/2021 (N.Y. Sup. Ct.), Doc No. 71.

90

id., Doc Nos. 73, 105,

91

Conrad Decl., Ex. L.

92

Opp. at 10 (quoting Cloister E., 483 F. Supp. 3d at 244). □

93

In any case, plaintiffs misconstrue the Court’s prior ruling. As that decision makes clear,

the Court allowed for renewal in case the SLA successfully argued in state court that the

Suspension Order was not subject to Article 78 review. Cloister E., 483 F. Supp. 3d at

238-40 & n. 81 (addressing prior instances where the SLA argued that a summary

suspension is not subject to Article 78 review and noting that the SLA had “changed its

position on this issue several times during this lawsuit.”), That did not occur. In fact,

plaintiffs successfully obtained a stay of the Suspension Order through their Article 78

21

For each of these reasons, Ex Parte Young is inapplicable and plaintiffs’ claims against

the SLA must be dismissed. However, that dismissal is without prejudice to the filing of a motion

for leave to file a supplemental complaint as set forth below.

UE Claims Against the Individual Defendants

The amended complaint asserts claims also against the Individual Defendants in their

individual capacities. They now move to dismiss those claims for failure to state a legally sufficient

claim and on the bases of qualified immunity. Both of these arguments are properly considered on

a motion to dismiss under Rule 12(b)(6).”

To survive a motion to dismiss under Rule 12(b)(6), plaintiffs must allege “enough

facts to state a claim to relief that is plausible on its face.””’ “A claim has facial plausibility when the

plaintiff pleads factual content that allows the court to draw the reasonable inference that the

proceeding. In re The Cloister East, Inc., Index No. 137157/2020 (N .Y. Sup. Ct.}, Doc No.

38. Plaintiffs Article 78 proceeding, however, was dismissed because they no longer had

any prospective deprivation to complain of.

See Pani v. Empire Blue Cross Blue Shield, 152 F.3d 67, 74-75 (2d Cir 1998) (“It is [] well

established that an affirmative defense of official immunity should be resolved as early as

possible by the court, and may be resolved by Rule 12(b)(6) if clearly established by the

allegations within the complaint.” (citations omitted)).

95

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).

22

defendant is liable for the misconduct alleged.””® However, a complaint that offers only “labels and

conclusions ... will not do.”””

In considering this motion, the Court accepts as true all factual allegations in the

complaint and draws all reasonable inferences in the plaintiffs’ favor.’ The Court may “rely upon

documents attached to the complaint as exhibits[] and documents incorporated by reference in the

complaint.””? Moreover, “when a plaintiff chooses not to attach to the complaint or incorporate by

reference a document upon which it . . . relies and which is integral to the complaint,” the Court

nevertheless may consider the document in deciding the defendant’s motion to dismiss.” The Court

may consider also “matters of which judicial notice may be taken.”''

36

Ashcroft v, Iqbal, 556 U.S. 662, 678 (2009).

97

Twombly, 550 US. at 555.

98

ATSI Comme’ns. Inc. vy. Shaar Fund Ltd., 493 F.3d 87, 98 (2d Cir. 2007).

99

Halebian v, Berv, 644 F.3d 122, 130 n. 7 (2d Cir, 2011).

100

Int’ Audiotext Network, Inc. v. Am. Tel. & Tel. Co., 62 F.3d 69, 72 (2d Cir. 1995) (internal

quotation marks and alterations omitted).

Here, the Court concludes that the Suspension Order and the Notice of Pleading, the

authenticity of which are not disputed, either are incorporated by reference in or are integral

to the amended complaint and properly are considered on this motion to dismiss.

10]

Kramer v, Time Warner Inc,, 937 F.2d 767, 773 (2d Cir, 1991).

Here, the Court may properly take judicial notice of the orders issued in the Article 78

proceedings, Jd. at 774 (“courts routinely take judicial notice of documents filed in other

courts, again not for the truth of the matters asserted in the other litigation, but rather to

establish the fact of such litigation and related filings.”). The Court also may take judicial

notice of “the New York State Executive Orders,” Elite Union Installations, LLC y. □□□□□

Fire Ins. Co. of Hartford, No. 20-cv-4761 (LIL), 2021 WL 4155016, at *4 (S.D.N.Y. Sept.

23

As noted above, plaintiffs assert three claims against the Individual Defendants. First,

they claim that the Suspension Order violated their rights to procedural due process. Second, they

claim that the administrative proceeding to cancel or revoke their liquor license did so as well.

Finally, they claim that the SLA treated them unfairly and denied them equal protection of the laws.

A, Procedural Due Process — the Suspension Order

i. Personal Involvement

Plaintiffs claim that the summary suspension of Cloister Café’s liquor license violated

their right to procedural due process because they were not provided notice and an opportunity to

be heard before the Suspension Order was entered.” They claim that each of the Individual

Defendants is liable for the alleged failures.

“In order for an individual to be subject to Section 1983 liability. , . that individual

must have had ‘personal involvement. . . in [the] alleged constitutional deprivations. 29103 Th addition,

the Individual Defendants “cannot be held legally accountable for the alleged process failure” if they

did not have the “power to provide process to the plaintiff.”'°* Accordingly, plaintiffs may only state

a claim for the failure to provide a hearing against the Individual Defendants who had “the power”

13, 2021), and the relevant guidance issued by the DOH, Jones v. Cuomo, No. 20-cv-4898

(KPF), 2021 WL 2269551, at *1 (S.D.N.Y. June 2, 2021).

102

Am. Compl. at 7 138.

Lo3

Rosu v. City of New York, No. 11-cv-5437 (DAB), 2012 WL 6582534, at *5 (S.D.NLY.

Dec. 13, 2012) (quoting Moffitt v. Town of Brookfield, 950 F.2d 880, 885 (2d Cir.1991)),

aff'd, 742 F.3d $23 (2d Cir. 2014).

104

, Velez v, Levy, 401 F.3d 75, 93 (2d Cir, 2005).

24

to decide whether to summarily suspend plaintiffs’ liquor license without a hearing pursuant to

section 401(3) of the SAPA.'® As the Suspension Order makes clear, that decision was made only

by the SLA Board members Bradley, Fan, and Ford.'*°

Plaintiffs do not allege that any other Individual Defendant was personally involved

in the decision to suspend Cloister Café’s liquor license summarily and without notice and a hearing.

Plaintiffs allege that defendants Stravalle, Marisco, and Meyerhoff provided the SLA Board with

incorrect and misleading information,'”’ and defendant Donohue signed the Suspension Order as

Secretary to the Authority.’ However, as noted above, the Suspension Order makes clear that none

of these defendants participated in the decision with respect to Cloister Café’s liquor license

suspension." In addition, plaintiffs do not allege that any of those defendants had the power to

provide them with the process sought in this case — Le., notice and a hearing prior to the suspension

105

Id.

106

Dkt. 30-7 at 2, 5.

107

Am. Compl. at J 89-91, 100-2.

The Court does not address whether providing inaccurate information to the SLA Board

could theoretically amount to a due process violation. Its decision here is based on the fact

that the amended complaint does not assert that the submission of the allegedly incorrect

information to the SLA Board was an independent due process violation and plaintiffs have

never articulated such a theory.

108

Dkt. 30-7 at 5.

109

id.

25

of Cloister Café’s liquor license. Accordingly, these defendants may not be liable for suspending

Cloister Café’s license without a hearing.''°

Ui, Qualified Immunity

The remaining Individual Defendants — Bradley, Fan, and Ford — contend that they

are entitled to qualified immunity for their decision summarily to suspend Cloister Café’s liquor

license, “Public officials are entitled to qualified immunity ‘unless (1) they violated a federal

statutory or constitutional right, and (2) the unlawfulness of their conduct was ‘clearly established at

the time.’”'!’

Here, the suspension of Cloister Café’s liquor license without a hearing would not

have violated plaintiffs’ right to due process if (1) there was an “emergency requiring quick action

_. where meaningful pre-deprivation process would be impractical” and (2) “there [was] an adequate

140

Defendants argue also that Marsico and Meyerhoff—the SLA associate counsel and general

counsel — are entitled to absolute immunity. “[O]fficials of government agencies” are

entitled to absolute immunity only when “performing certain functions analogous to those

of a prosecutor” or a judge. DiBlasio v. Novello, 344 F.3d 292, 297 (2d Cir. 2003). In

order to establish that they were performing prosecutorial functions, they must demonstrate

that the August 7, 2020 SLA Board meeting shares specific “characteristics of the judicial

process.” Jd, at 297-98. In this case, defendants have not provided any basis to conclude

that it did. In fact, the SLA Board meeting shared many characteristics with the

proceedings at issue in DiBlassio, which, for the reasons explained in that case, point

against concluding that Marsico and Meyerhoff are entitled to absolute immunity. Jd. at

298-300.

il]

Liberian Cmty. Ass’n of Connecticut v. Lamont, 970 F.3d 174, 186 (2d Cir. 2020) (quoting

District of Columbia vy, Wesby, 138 S. Ct. 577, 589, 199 L, Ed. 2d 453 (2018)).

26

procedure in place to assess the propriety of the deprivation afterwards.” The Court previously

explained that the second requirement - an adequate post-derivation procedure — apparently was

satisfied in this case by the opportunity to challenge the Suspension Order in an Article 78

proceeding.''? Thus, there would have been no constitutional violation if emergency circumstances

requiring immediate action existed at the time the Suspension Order was entered.

However, determining whether defendants are entitled to qualified immunity does not

require the Court to determine whether emergency circumstances actually existed at that time.

Instead, “the Supreme Court has clarified that a district court confronted with a qualified immunity

motion may skip over the first question (was there or was there not a constitutional violation) and

answer the [second] question”: whether any constitutional violation was clearly established at the

12

WWBITY, Inc. vy, Vill. of Rouses Point, 589 F.3d 46, 50 (2d Cir. 2009). See also DiBlasio,

344 F.3d at 304 (“under certain emergency circumstances, a post-deprivation hearing is all

that is required to satisfy due process.”’).

H13

Cloister F., 483 F. Supp. 3d at 241.

While plaintiffs now argue that the dismissal of their Article 78 proceeding challenging the

Suspension Order renders it inadequate or a “figment”? (Opp. at 15), these facts are not

alleged in the amended complaint. In any case, the Court is not persuaded that these facts

render Article 78 review inadequate. Asan initial matter, plaintiffs did successfully obtain

a stay of the Suspension Order through their Article 78 proceeding. See Inre The Cloister

East, Inc., Index No. 157157/2020 (N.Y. Sup. Ct.), Doc No. 38. Furthermore, their Article

78 petition was dismissed because they had obtained — albeit outside of court — the full

relief available in that proceeding. Id., Doc. No. 72. Although plaintiffs undoubtably wish

they were entitled to additional process — such as an opportunity to sue for damages — the

fact “that [plaintiffs] might not be able to recover . . . the full amount which he might

receive in a § 1983 action is not . . . determinative of the adequacy of the state remedies.”

Hudson v. Palmer, 468 U.S. 517, 535 (1984). Accordingly, an “Article 78 proceeding[]

remain[s] adequate for purposes of procedural due process even if” plaintiffs were unable

to “[seek] damages” in that proceeding. Horton v. Westling, 765 F. App’x 531, 533 □□

Cir. 2019).

27

time.'!* “In most instances, that turns out to be the easiest way to dispose of a qualified immunity

motion.”' Accordingly, the Court turns directly to the question of whether it was clearly

established that issuance of the Suspension Order would violate plaintiffs’ constitutional rights.

As the Second Circuit has explained, “the standard for determining whether

emergency procedures can be invoked [is] well-defined.”''® However, “[e]ven where the law is

clearly established and the scope of an official’s permissible conduct is clearly defined, the qualified

immunity defense also protects an official if it was objectively reasonable for him at the time of the

challenged action to believe his acts were lawful.”''” Accordingly, “[t}he question to be answered

I14

Inve New York City Policing During Summer 2020 Demonstrations, No. 20-cv-8924 (CM),

2021 WL 2894764, at *17 (S.D.N.Y. July 9, 2021) (citing Pearson y, Callahan, 553 US,

223, 236 (2009)).

115

Id.

116

DiBlasio v. Novello, 413 F. App’x 352, 355 (2d Cir. 2011).

Neither party correctly characterizes the “clearly established” law at issue here. Plaintiffs

contend that “due process is a clearly established right.” Opp. at 22. While that may

theoretically be true, the Supreme Court has “repeatedly told courts . .. not to define clearly

established law at a high level of generality.” City of S.F. v. Sheehan, 575 U.S, 600, 613

(2015). “Qualified immunity is no immunity at all if ‘clearly established’ law can simply

be defined” at such a high level of generality. /d. On the other hand, the Court does not

agree with defendants that the law at issue was not clearly established because no Court has

ever found section 401(3) of the SAPA unconstitutional. See Br. [Dkt. 66] at 23-24.

the application of the emergency procedures in section 401 (3) to the facts before the SLA

Board that plaintiffs contend violated their right to procedural due process.

17

Southerland v. City of New York, 680 F.3d 127, 141 (2d Cir, 2012) (internal quotation

marks omitted) (quoting Taravella v. Town of Wolcott, 599 F.3d 129, 134 (2d Cir.2010)).

28

is whether a reasonable government officer, confronted with the facts as alleged by plaintiff, could

reasonably have believed that his actions did not violate some settled constitutional right.”""*

In this case, defendants Bradley, Fan, and Ford would be entitled to qualified

immunity if it was “objectively reasonable” for them to “believe” that an emergency existed under

the circumstances alleged by plaintiffs! Such a determination “gives government officials

breathing room to make reasonable but mistaken judgments.’”'”” The members of the SLA Board

thus are entitled to qualified immunity if their decision was based on “competent evidence allowing

[them] to reasonably believe that an emergency [did] in fact exist, or that affording predeprivation

process would [have been] otherwise impractical.”!”"

Plaintiffs’ allegations - even construed in their favor — establish that it was

objectively reasonable for the SLA Board to conclude that an emergency existed warranting the

summary suspension of Cloister Café’s liquor license. As an initial matter, it is undisputed that it

was objectively reasonable for these defendants to believe that the COVID-19 pandemic had caused

a public health emergency in August 2020. Plaintiffs likewise do not contend that it was

unreasonable to believe that compliance with the DOH Guidance was necessary to stem the spread

TLS

In re New York City Policing, 2021 WL 2894764, at *17.

1:9

Schweitzer v. Crofton, 560 F. App’x 6, 11 (2d Cir. 2014) (officer was entitled to qualified

immunity for deciding to remove child without a hearing “because it was ‘objectively

reasonable’” to “believe ‘that there was an immediate threat to the safety of [plaintiffs

child]”).

120

Messerschmidt v. Millender, 565 U.S. 535, 546 (2012) (quoting Ashcroft v. al-Kidd, 563

USS. 731, 743 (2011)).

121

DiBlasio, 413 F, App’x at 355.

29

of the virus. Instead, plaintiffs allege only that no emergency existed because they were complying

with these guidelines.’ Accordingly, the issue presented is whether in the circumstances, as

alleged in the amended complaint, it was objectively reasonable for the SLA Board to believe that

plaintiffs’ conduct had created an emergency. The Court concludes that it was.

First, plaintiffs allege that Marsico informed the SLA Board that Cloister Café had

established an “illegal structure that was really three walls of neighboring buildings with a ceiling on

top.”'3 Plaintiffs further allege that Marsico failed to inform the SLA Board that the ceiling was

actually a “cloth awning,” that there were “only two walls of neighboring buildings,” or that the

“temporary enclosure was approved by the Department of Buildings and that the space is deemed

to be an outdoor space.” They do not allege that the SLA Board was provided with any evidence

indicating that the information provided by Marsico was incorrect. Based on those allegations, it

was plainly reasonable for the SLA Board to believe that Cloister Café was serving patrons in an

“enclosure with three walls and a fabric roof”! in violation of the DOH Guidance.

Second, plaintiffs allege that Marsico and Meyerhoff told the SLA Board that there

were seventy people “inside” Cloister Café, that the maximum capacity at Cloister Café was “half of

seventy-four,” and that it was “way over occupancy.”’”° They allege also that Marsico and

122

Am, Compl. at 113.

123

Id. at { 61.

124

Id. at 62-65.

125

Dkt. 30-7 at 6.

126

Am. Compl, at 4 66, 79.

30

Meyerhoff “failed to inform the Board that the amount of people present in the Cloister Café was

within the parameters permitted occupancy.”'”’ Plaintiffs once again do not allege that the SLA

Board knew or should have known that the information provided by Marsico and Meyerhoff was

incorrect.

In light of the information allegedly provided to the SLA Board, the Court cannot say

that it was objectively unreasonable to conclude that patrons at Cloister Café were “inside the

establishment” or in an illegal outdoor “enclosure” and “mingling amongst each other” in a manner

that threatened the “health, safety and welfare” of the public.'* Whether or not this conclusion

ultimately was correct, the SLA Board’s decision was not “plainly incompetent” or a “knowing[]

violat[ion] [of] the law” for which qualified immunity would not apply.'”

Finally, while plaintiffs allege that the SLA Board improperly relied on the

Gothamist.com article in deciding to suspend their license,'*® that does not negate the SLA Board’s

reliance on information allegedly provided by Marsico and Meyerhoff. Accordingly, plaintiffs have

not alleged adequately that it would have been unreasonable for the SLA Board to have believed

that emergency circumstances existed that warranted the summary suspension of Cloister Cafe’s

liquor license. Accordingly, that decision is entitled to qualified immunity.

127

id, at © 80.

128

Dkt, 30-7 at §f 6-7, 9.

129

Carroll v. Carman, 574 U.S, 13, 17 (2014).

130

Am, Compl. at 7 105.

31

B. Procedural Due Process — the Revocation Hearing

Next, plaintiffs claim that their right to procedural due process was violated because

“lplrior to any administrative hearing and having heard no evidence, the Chairman of the Board...

openly recommended that Plaintiffs shall not be returned their License on a permanent basis.”)”)

Plaintiffs thus contend that they “have not been and cannot be afforded a meaningful and appropriate

hearing.”? Although not clearly articulated in the amended complaint, the theory underlying that

claim appears to be that Chairman Bradley’s alleged bias required his recusal from the SLA Board’s

decision whether to permanently revoke or cancel Cloister Café’s liquor license.”

Asan initial matter, even assuming that claim has any merit, plaintiffs have not alleged

that any of the Individual Defendants other than Chairman Bradley would have the power to provide

the process sought in this claim. Accordingly, only Chairman Bradley may be held liable for any

alleged due process violation.'*

In any case, this claim fails because “any injury that the plaintiffs have suffered or may

suffer in the revocation proceeding . . . could be remedied by an Article 78 proceeding.”"”* Plaintiffs

131

Td, at | 146.

132

Id. at 151.

133

See Opp. at 18 (arguing that “Chairman Bradley should have recused himself based on his

clearly prejudicial behavior.”’).

134

See Velez, 401 F.3d at 93.

135

Cloister E., 483 F. Supp. 3d at 243.

“Where, as here, a given procedure includes ‘some form of pre-deprivation hearing’ and

post-deprivation remedies with ‘the opportunity to obtain full judicial review,’ the

32

have not alleged or argued that an Article 78 proceeding would not provide an adequate post-

deprivation review of the SLA’s decision to cancel Cloister Café’s liquor license. While it is

currently unclear whether plaintiffs’ Article 78 petition will be heard on the merits, such future

events, which are not alleged in the amended complaint or raised by the plaintiffs, cannot defeat

defendants’ motion to dismiss. However, plaintiffs may move to file an amended and supplemental

complaint, as set out below, based on the factual developments that have occurred since this case

began.

C. Equal Protection

Plaintiffs’ final claim is for an equal protection violation on the premise that

defendants “relifed] on a third-party publication [the Gothamist.com article] over facts that should

have been corroborated or undermined by means of its own investigation and the failure to conduct

a proper investigation,” and they thereby caused the plaintiffs to be “treated arbitrarily unequally in

comparison with those establishments given fair hearings based on admissible evidence,””°

Plaintiffs do not allege that they are members of a protected class. Accordingly, to

claim an equal protection violation, they must plausibly allege that they were denied equal protection

asaclass-of-one. A class-of-one claim is properly stated “where the plaintiff alleges that she has been

‘combination’ of the two provide due process” sufficient to remedy alleged bias by the

original decision maker. Doolen v. Wormuth, 5 F.4th 125, 135 (2d Cir. 2021) (quoting

Rivera-Powell v. N.Y.C. Bd. of Elections, 470 F.3d 458, 466-67 (2d Cir. 2006)). In fact,

the Second Circuit has concluded where Article 78 review is available, allegations of bias

on the part of the hearing officer are insufficient to sustain a claim under the due process

clause. See Locurto v. Safir, 264 F.3d 154, 174-5 (2d Cir. 2001).

136

Am, Compl. ¢ 154.

33

intentionally treated differently from others similarly situated and that there is no rational basis for

the difference in treatment.’”"?” For the second element, plaintiffs must allege that Cloister Café “and

comparator are ‘prima facie identical’” so that “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” or “a mistake.’

Plaintiffs’ entirely fail to meet this standard. Instead, they allege only that the SLA

treated them unfairly compared to “those establishments given fair hearings based on admissible

evidence.” They do not allege any details whatsoever about these establishments or the

circumstances of the allegedly “fair hearings” that these establishments were provided. Accordingly,

they do not even come close to alleging an “extremely high degree of similarity between themselves

and the persons to whom they compare themselves.”

Plaintiffs’ arguments to the contrary do not have any merit. Primarily, they argue that

they must have been treated unfairly because any contrary conclusion would mean that the SLA treats

all entities unlawfully.""! This “gotcha!” argument is completely frivolous and misses the point.

Among other issues, plaintiffs fail to address the fact that “the [a]mended [c]omplaint is silent as to

137

Anatytical Diagnostic Labs, Inc. y. Kusel, 626 F.3d 135, 140 (2d Cir, 2010) (emphasis

added) (quoting Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000)).

138

Hu v. City of New York, 927 F.3d 81, 92 Qd Cir, 2019),

139

Am, Compl. 7 154.

140

Lilakos v. New York City, 808 F. App’x 4, 8-9 (2d Cir. 2020) (quoting Clubside, Inc. v.

Valentin, 468 F.3d 144, 159 (2d Cir. 2006)).

141

Opp. at 20,

34

a whole host of factors that could legitimately justify” the SLA’s alleged behavior.'” For example,

it does not indicate whether the alleged comparator establishments were accused of violating COVID-

19 related restrictions in the same manner that the SLA allegedly believed Cloister Café had. While

the Court does not suggest that this particular omission is dispositive, without any allegations

whatsoever about the comparator establishments, the Court cannot plausibly infer that the SLA’s

treatment of Cloister Café was unrelated to a legitimate government policy.”

However unfairly plaintiffs believe they were treated — and the Court does not reject

their belief that they were — the allegations in the amended complaint are insufficient to allege an

equal protection violation.

Conclusion

For the forgoing reasons, defendants’ motion to dismiss the amended complaint [Dkt.

65] is granted on the ground that it fails to state a claim upon which relief may be granted. As this

saga has not yet reached its end, however, plaintiffs may move for leave to file an amended and

supplemental complaint pursuant to Rule 15(d), which shall be attached to any such motion, by the

earlier of November 26, 2021 or thirty days after the current Article 78 proceeding [Index No.

151728/2021 (N.Y.Sup.Ct.)] is finally resolved. In the event that the Article 78 proceeding is still

142

Hut, 927 F.3d at 100.

143

To the contrary, the facts alleged in the amended complaint and the governments’ interest

in stemming the spread of COVID-19 strongly suggest that Cloister Café was not singled

out for any impermissible reason. Cf Roman Cath. Diocese of Brooklyn v, Cuomo, 1418,

Ct. 63, 67, 208 L. Ed. 2d 206 (2020) (“Stemming the spread of COVID-19 is

unquestionably a compelling interest”),

35

pending as of November 26, 2021, plaintiffs shall file a status update with the Court seeking

additional time to submit any such motion,

SO ORDERED.

Dated: September 28, 2021 hb.

Lewis A. Kaplan

United States District Judge