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

> District Court, S.D. New York · September 28, 2021

URL: https://www.frixlaw.com/law-library/cases/10335664

## Case

- **Court:** District Court, S.D. New York
- **Decided:** September 28, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10335664. Public record. Not legal advice.