# Everest Foods Inc. v. Andrew M. Cuomo

> District Court, S.D. New York · February 7, 2022

URL: https://www.frixlaw.com/law-library/cases/10338489

## Case

- **Court:** District Court, S.D. New York
- **Decided:** February 7, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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## How later opinions describe it (automated extraction)

- affirming judgment on the pleadings, denying qualified immunity based upon state-law defenses

## Opinion text

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

---------------------------------------------------------- X
:
EVEREST FOODS INC., PUNCHGINI, INC., A :
SPICE ROUTE INC., IMPECCABLE : ORDER AND OPINION
KITCHEN BRONX CORP., JUNOON NYC : GRANTING MOTIONS TO
LLC, PAISLEY RESTAURANT, LLC, : DISMISS THE COMPLAINT
PAPRIKA II LLC, PAYAM INC., :
SABHARWAL HOSPITALITY GROUP LLC, : 21 Civ. 6316 (AKH)
SURYA HELLS KITCHEN INC., SHARMA & :
SINGH RESTAURANT GROUP INC., and :
SHREE LAXMI RESTAURANT INC., :
:
Plaintiffs, :
-against- :
:
ANDREW M. CUOMO, in his individual :
capacity, and BILL de BLASIO, in his individual :
capacity, :
:
Defendants. :
---------------------------------------------------------- X

ALVIN K. HELLERSTEIN, U.S.D.J.:
Plaintiffs Everest Foods Inc., Punchgini, Inc., A Spice Route Inc., Impeccable Kitchen
Bronx Corp., Junoon NYC LLC, Paisley Restaurant, LLC, Paprika II LLC, Payam Inc.,
Sabharwal Hospitality Group LLC, Surya Hells Kitchen Inc., Sharma & Singh Restaurant Group
Inc., and Shree Laxmi Restaurant Inc (collectively “Plaintiffs”) bring suit for damages under 42
U.S.C. § 1983 against Defendants former-Governor of the State of New York, Andrew M.
Cuomo (“Defendant Cuomo”) and Mayor of New York City Bill de Blasio (“Defendant de
Blasio”), (collectively “Defendants”), in their individual capacities. Complaint (“Compl.), ECF
No. 1. Plaintiffs allege that in enforcing executive orders, laws, or regulations aimed at curbing
the COVID-19 pandemic, Defendants violated Plaintiffs’: (1) procedural due process rights
under the Fourteenth Amendment; (2) substantive due process rights under the Fourteenth
Amendment; (3) equal protection rights under the Fourteenth Amendment; (4) property rights
under the Takings Clause of the Fifth Amendment; and (5) rights against the impairment of
contracts under the Contracts Clause, U.S. Const. art. I, § 10. Defendants moves to dismiss the
complaint against for failure to state a claim under Fed. R. Civ. P. 12(b)(6). ECF Nos. 39, 49.

For the reasons set forth below, both motions are granted.
BACKGROUND
The following facts are taken from the Plaintiffs’ Complaint, which I must
“accept[] as true” for the purpose of this motion. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Plaintiffs are operators of food businesses in New York City that closed permanently, or suffered
loss of business, as a result of executive orders and emergency executive orders issued by
Defendants. Compl. ¶¶ 3–17, 23, 26.
On March 7, 2020, Governor Cuomo began issuing a series of executive orders
(“EOs”) “that declared a state of emergency based on COVID-19 in the State of New York [and]
that regulated social and business activities of its residents.” Id. ¶ 22. EO 202.1, issued on

March 12, 2020, “set[] a 50% capacity limit on places of business that had fewer than 500 people
in attendance, but exempted schools, hospitals, nursing homes, mass transit, government and law
enforcement facilities, and ‘retail establishments including grocery stores.’” Id. ¶ 24.
Taking his cue from Defendant Cuomo’s EOs, NYC Mayor de Blasio also issued
a series of Emergency Executive Orders (“EEOs”), which largely mirrored and enforced
Defendant Cuomo’s EOs, beginning with EEO 98 on March 12, 2020, which declared a state of
emergency in New York City. Id. ¶ 26. EEO 99, dated March 15, 2020 and in accordance with
EO 202.1, limited restaurants to 50 percent capacity but exempted mass transit and grocery
stores. Id. ¶ 28.
On March 16, 2020, Defendant Cuomo issued EO 202.3, which provided that
“Any restaurant or bar in the state of New York shall cease serving patrons food or beverage on-
premises effective at 8 pm on March 16, 2020, and until further notice shall only serve food or
beverage for off-premises consumption.” Id. ¶ 29. In turn, Defendant de Blasio issued EEO

100, directing “all establishments – including restaurants, bars, cafes – that offer food or drink”
to close until further notice but allowed them to remain open for take-out or delivery so long as
customers waiting for take-out did not exceed the 50 percent capacities. Id. ¶ 31.
On March 18, 2020, Defendant Cuomo issued EO 202.6, limiting non-essential
businesses to a 50 percent in-person workforce but exempted “[a]ny essential business or entity
providing essential services or functions.” Id. ¶ 32. In turn, Defendant de Blasio issued EEO
103, directing all businesses that did not qualify as “essential” under EO 202.6 to reduce their in-
person workforces by 100 percent. Id. ¶ 34.
Defendant Cuomo also directed the Empire State Development Corporation
(“ESDC”) to issue guidance “as to which businesses are determined to be essential.” Id. EOs

202.7 and 202.8, issued on March 19 and March 20, 2020, respectively, reduced in-person
workforces by 75 percent and then by 100 percent, again exempting “essential” businesses. Id. ¶
33. The guidance issued by the ESDC on March 20, 2020 deemed essential “food banks,
farmer’s markets, convenience stores, grocery ‘and beverage’ stores, and parks,” and thus,
“allowed [them] to continue operating.” Id. ¶ 56.
On March 29, 2020, EO 202.13 extended the shutdowns of indoor dining to April
15, 2020, as well as “clarif[ied] . . . that only certain construction is considered exempt” and
directed the ESDC to determine which construction sites could remain open, without explaining
why “certain” sites would be safe. Id. ¶ 35. EOs 202.14, 202.18, and 202.31, issued on April 7,
2020, April 16, 2020, and May 14, 2020, extended the shutdowns of indoor dining. Id. ¶¶ 36, 37,
39. EO 202.31, however, allowed other non-essential businesses in construction, agriculture,
forestry, fishing and hunting, and curbside or in-store pickup or drop off for retail,
manufacturing, and wholesale trade to reopen without explanation as to why such businesses

were presumed safe. Id. ¶ 39. As to Defendant de Blasio, throughout April, he continued to
issue EEOs “to ensure that the Governor’s orders [were] enforced” and incorporating Defendant
Cuomo’s EO 203 and subsequent orders. Id. ¶ 38.
Further, while the ESDC’s March 20, March 25, and April 8, 2020 Guidances
allowed businesses to request designation as essential, these Guidances specifically provided that
restaurants were “not eligible for designation as an essential business,” and an April 10, 2020
Guidance referred to “[a]ny dine-in or on-premise restaurant or bar service, excluding take-out or
deliver for off-premise consumption as a non-essential business.” Id. ¶¶ 57–58.
On June 4, 2020, Defendant Cuomo “thanked protestors who had taken to the
streets of New York City in closely packed crowds” to protest police misconduct against Black

people, even though restaurants remained closed, a seeming inconsistency. Id. ¶ 44. Defendant
de Blasio also did not enforce social distancing requirements on protesters but did enforce
restrictions on indoor dining. Id. ¶ 45.
On June 13, 2020, EO 202.41 removed restrictions on certain industries, including
the restaurant and food services industry, in eligible regions, which did not include Plaintiffs’
businesses; instead, EO 202.45, dated June 26, 2020, extended the shutdowns of indoor dining
restrictions applicable to Plaintiffs. Id. ¶¶ 40–41. Further, EO 202.48, dated July 6, 2020,
specifically exempted indoor food service and dining from the removal of restrictions in EO
202.41. Id. ¶ 43.
For his part, Defendant de Blasio issued EEOs 127 and 128 on June 22 and 27,
2020 “in order to ensure that the Governor’s orders [were] enforced” and allowed restaurants to
open in streets, under the “Open Restaurants Program,” if they had ability to comply with city
and state regulations and zoning laws regarding outdoor dining. Id. ¶ 42. Plaintiffs did not have

access to sidewalks or streets where they could build extensions and so could not apply to
operate under the Program. Id.
During the summer and fall of 2020, Defendant Cuomo issued EOs that allowed
the opening of other businesses “where customers enter an indoor space in large groups, share
space and air, and touch common surfaces,” including construction, museums, art galleries,
movie theaters, casinos, bowling alleys, and gyms, subject to adherence to Department of Health
guidance and certain capacity limits. Id. ¶ 48. Defendant Cuomo failed to explain how
construction, museums, art galleries, movie theaters, casinos, bowling alleys, and gyms are
different from restaurants, in light of the fact that Plaintiffs took clear and strong measures to
sanitize their premises and offer personal protective equipment to staff and customers, in order to

prevent the spread of COVID-19. Id. ¶¶ 49–50. For his part, Defendant de Blasio called indoor
dining “a very optional activity, which some people do a lot who have the resources and others
can’t do at all because they don’t have the resources.” Id. ¶ 74.
On October 6, 2020, Defendant Cuomo issued EO 202.68, which established red,
orange, and yellow zones with different “mitigation measures” to be established by the
Department of Health in each, based on “cluster-based cases of COVID-19.” Id. ¶ 59. In red
zones, restaurants were limited to take-out or delivery; in orange zones, they could seat four or
fewer outdoors; and, in yellow zones, they could seat groups of four or fewer indoors. Id.
Defendant Cuomo allowed restaurants to reopen on September 30, 2020, under
EO 202.61, at 25 percent indoor capacity with no bar service, and in EO 202.74, dated
November 12, 2020, ordered restaurants to cease in-person dining between 10:00 p.m. and 5:00
a.m., a restriction only additionally placed on gyms. Id. ¶ 62. Defendant de Blasio continued to

enforce Defendant Cuomo’s EOs. Id. 63.
On December 11, 2020, Defendant Cuomo announced that the determination of
which zone a geographic area would be in was based upon positivity rates and hospital capacity,
and specifically suspended indoor dining in New York City, noting the federal Center for
Disease Control’s updated guidance, which identified “[i]ndoor venues, where distancing is not
maintained and consistent use of face masks is not possible (e.g. restaurant dining) . . . as
particularly high-risk scenarios.” Id. ¶ 61.
Finally, “[o]n April 19, 2021, Defendant Cuomo allowed restaurants to operate at
50 percent indoor capacity; outside New York city, he allowed 75-percent indoor capacity on
March 19, 2021.” Id. ¶ 66.

While the EOs allowed restaurants to “serve food or beverage for off-premises
consumption,” id. ¶ 29, as well as to offer “take-out and delivery,” id. ¶ 47, Plaintiffs allege that
Defendants, through their EOs and EEOs, “unfairly and arbitrarily closed restaurants and
directed . . . [the] designat[ion of] essential and non-essential business[,] . . . [which] effectively
closed and destroyed New York City restaurants, including Plaintiffs’ businesses.” Id. ¶ 87.

Plaintiffs brought this suit for damages against both Defendants, acting in their
individual capacity, alleging violations of their constitutional rights, including their: (i)
procedural and substantive due process and equal protection of the laws under the Fourteenth
Amendment (Counts I–III); (ii) property rights under the Takings Clause of the Fifth
Amendment (Count IV); and (iii) contractual rights under the Contracts Clause, Article I, Section
10 (Count V). Defendants move to dismiss the complaint on all counts, arguing that they did not
violate any of the aforementioned rights, or in the alternative, that they are entitled to qualified

immunity because none of these rights was clearly established at the time.
DISCUSSION
I. Legal Standard
To survive a Rule 12(b)(6) motion to dismiss, Plaintiffs must allege “sufficient
factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Iqbal, 556
U.S. at 678. A claim is facially plausible when it pleads “factual content that allows the court to
draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id.
“Where a complaint pleads facts that are merely consistent with a defendant's liability, it stops
short of the line between possibility and plausibility of entitlement to relief.” Id.
When considering a motion to dismiss under Rule 12, the Court must “accept[] all

factual allegations as true and draw[] all reasonable inferences in the plaintiff's favor.” Nielsen v.
Rabin, 746 F.3d 122, 130 (2d Cir. 2014). However, the Court “must disregard legal conclusions,
which are not entitled to the presumption of truth. See Heidel v. Hochul, No. 20-CV-10462,
2021 U.S. Dist. LEXIS 203572, at *12 (S.D.N.Y. Oct. 21, 2021) (citing Iqbal, 550 U.S. at 570);
see also Ruston v. Town Bd. For Town of Skaneateles, 610 F.3d 55, 59 (2d Cir. 2010) (“Under
Iqbal, factual allegations must be sufficient to support necessary legal conclusions. “Dismissal is
appropriate when ‘it is clear from the face of the complaint, and matters of which the court may
take judicial notice, that the plaintiff’s claims are barred as a matter of law.’” Parkcentral
Global Hub Ltd. v. Porsche Auto. Holdings SE, 763 F.3d 198, 208–09 (2d Cir. 2014) (quoting
Conopco, Inc. v. Roll Int’l, 231 F.3d 82, 86 (2d Cir. 2000)).
II. Analysis
Defendants move to dismiss all claims based upon Plaintiffs’ failure to plausibly

allege violations of their constitutional rights, or in the alternative, on qualified immunity
grounds.
“In an official capacity suit, the real party in interest is the governmental entity
and not the named official. By contrast, individual capacity suits seek to impose individual
liability upon a government officer for her actions under color of law.” Tanvir v. Tanzin, 894
F.3d 449, 459 (2d Cir. 2018) (cleaned up). “The identity of the real party in interest dictates
what immunities may be available.” Lewis v. Clarke, 137 S. Ct. 1285, 1292 (2017). Whereas
“Defendants in an official-capacity action may assert sovereign immunity,” including Eleventh
Amendment immunity, if they are state officials, “[a]n officer in an individual-capacity action . .
. may be able to assert personal immunity defenses . . . . But sovereign immunity does not erect

a barrier against suits to impose individual and personal liability.” Id. (cleaned up).
Although Defendants were clearly acting in their official capacities when they
issued the relevant EOs and EEOs, because Plaintiffs bring individual capacity suits for
compensatory and punitive damages, Defendants may not rely on the Eleventh Amendment or
the doctrine of municipal liability to avoid liability. See Avery v. DiFiore, No. 18-CV-9150,
2019 U.S. Dist. LEXIS 131966, at *6-7 (S.D.N.Y. Aug. 6, 2019) (noting that the plaintiff
purported to sue the defendants in their individual capacities and sought punitive damages, which
are not ordinarily available against the state). Accordingly, I consider whether Defendants are
entitled to dismissal on qualified immunity grounds.
“The doctrine of qualified immunity shields government employees from civil
liability where performance of their discretionary functions ‘does not violate clearly establish
statutory or constitutional rights of which a reasonable person should have known.’” In re New
York City Policing During Summer 2020 Demonstrations, Nos. 20-CV-8924 et al., 2021 U.S.

Dist. LEXIS 128437 (S.D.N.Y. July 9, 2021) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818
(1982)). Because qualified immunity is an immunity from suit rather than a mere defense to
liability, the Supreme Court has “repeatedly . . . stressed the importance of resolving immunity
questions at the earliest possible stage in litigation[,]” including on a Rule 12(b)(6) motion.
Edrei v. Maguire, 892 F.3d 525, 532 (2d Cir. 2018) (quoting Hunter v. Bryant, 502 U.S. 224,
227 (1991) (per curiam)); accord. Liberian Cmty. Ass'n of Conn. v. Lamont, 970 F.3d 174, 186
(2d Cir. 2020); see also McCue v. City of New York (In re World Trade Ctr. Disaster Site, Litig.),
521 F.3d 169, 177 (2d Cir. 2008) (affirming judgment on the pleadings, denying qualified
immunity based upon state-law defenses).
In ruling on a motion to dismiss based upon qualified immunity, courts face two

questions: (1) whether a plaintiff’s constitutional rights were violated, and (2) whether, at the
time of the violation, the right was clearly established. Saucier v. Katz, 533 U.S. 194, 201
(2001). The Supreme Court has instructed that “judges of the district courts and the courts of
appeals should be permitted to exercise their sound discretion in deciding which of the two
prongs of the qualified immunity analysis should be addressed first in light of the circumstances
in the particular case at hand.” Pearson v. Callahan, 555 U.S. 223, 236 (2009). I hold that
Plaintiffs have failed to plausibly allege the violation of any constitutional right.
A. Violation of Constitutional Rights
Since the start of the COVID-19 pandemic, many courts have cited the Supreme
Court’s 1905 decision in Jacobson v. Massachusetts, 197 U.S. 11 (1905), when considering
challenges to state and local actions aimed at curbing the COVID-19 pandemic. See Hopkins
Hawley LLC v. Cuomo, 518 F. Supp. 3d 705, 710 (S.D.N.Y. 2021). In Jacobsen, the Supreme
Court upheld a mandatory vaccination law against a substantive due process challenge in the

wake of a public health crisis, holding that in times of public health crises, a state or local law
“enacted for the public health” would only be struck down if it had “no real or substantial
relation [to the public health] or is, beyond all question, a plain, palpable invasion of rights
secured by the fundamental law.” See Jacobsen, 197 U.S. at 25, 31. Over a century later, Chief
Justice Roberts built on Jacobsen’s deferential framework in South Bay United Pentecostal
Church v. Newsom, 140 S. Ct. 1613 (2020), and in a concurring opinion, wrote:
The precise question of when restrictions on particular social activities should be lifted
during the pandemic is a dynamic and fact-intensive matter subject to reasonable
disagreement. Our Constitution principally entrusts the safety and the health of the people
to the politically accountable officials of the States to guard and protect.

Id. at 1613 (cleaned up). However, recent decisions from the Supreme Court and Second Circuit
have placed Jacobsen’s deferential framework in question.
In Roman Catholic Diocese of Brooklyn v. Cuomo, the Supreme Court granted
temporary injunctive relief to New York-based religious entities against Governor Cuomo’s
strict capacity limits on in-person services. 141 S. Ct. 63 (2020). The Court did not mention, let
alone apply, Jacobsen’s deferential standard and instead applied current doctrine governing First
Amendment Free Exercise claims. On remand, the Second Circuit stated that Jacobsen and
South Bay were no longer the correct legal framework for examining free exercise of religion
challenges to COVID-19 restrictions. Agudath Isr. of Am. v. Cuomo, 983 F.3d 620, 635–36 (2d
Cir. 2020).
After Roman Catholic Diocese, courts have disagreed as to the scope of its
holding, with some concluding that Jacobsen is no longer relevant to any constitutional claims
arising from the pandemic, and others concluding that the limitation on Jacobsen may be cabined
to the Free Exercise context in which it arose. Compare Big Tyme Investments, L.L.C. v.

Edwards, 985 F.3d 456 (5th Cir. 2021) (Willet, J., concurring) (arguing Jacobsen has been
displaced), with Plaza Motors of Brooklyn, Inc. v. Cuomo, No. 20-CV-4851, 2021 U.S. Dist.
LEXIS 12726, at *5 (E.D.N.Y. Jan. 22, 2021) (concluding that Jacobsen was abrogated), and
Hopkins Hawley LLC, 518 F. Supp. 3d at 710 (concluding that Jacobsen still applies to other
constitutional claims); see also Delaney v. Baker, No. 20-CV-11154, 2021 U.S. Dist. LEXIS
1567, at *12 (D. Mass. Jan. 6, 2021) (applying both Jacobsen and a traditional constitutional
analysis).
Here, Plaintiffs do not assert any claims clearly governed by Roman Catholic
Diocese; however, I need not linger on the question of which standard applies to Plaintiffs’
claims because they fail no matter whether Jacobsen or traditional constitutional analysis

applies. I address each in turn.
1. Jacobsen
Plaintiffs cannot meet the Jacobsen standard because they cannot show that the
EOs and EEOs at issue bear “no real or substantial relation [to the public health] or [are], beyond
all question, a plain, palpable invasion of rights secured by the fundamental law.” See Jacobsen,
197 U.S. at 25, 31. The restrictions on indoor-dining clearly relate to the public welfare by
aiming to curb the transmission of COVID-19 in higher risk settings, such as restaurants. See,
e.g., Hawley Hopkin LLC, 518 F. Supp. 3d at 714; Columbus Ale House, Inc. v. Cuomo, 495 F.
Supp. 3d 88, 93 (E.D.N.Y. 2020). Moreover, the distinction between essential and non-essential
businesses, and distinctions among various types of non-essential businesses, cannot be said to
be without reason. See Luke’s Catering Serv., LLC v. Cuomo, 485 F. Supp. 3d 369, 382
(W.D.N.Y. 2020). Indoor dining involves unique circumstances likely to facilitate COVID-19
transmission. Patrons must remove their masks to eat, increasingly the likelihood of

transmission between individuals. Restaurants also bring together individuals from different
households, facilitating communal spread. Treating restaurants differently—and indoor dining
specifically—logically follows.
Plaintiffs likewise have not plausibly alleged that the EOs and EEOs are “beyond
all question, a plain, palpable invasion of rights secured by fundamental law.” Jacobsen, 197
U.S. at 31. In their opposition, Plaintiffs cite no authority—binding, persuasive, or otherwise—
where a court considering similar restrictions has so held. Plaintiffs clearly recognize that
COVID-19 posed, and continues to pose, a significant threat to public health. For example,
Plaintiffs allege that they “took clear and strong measures to sanitize their premises,” including
offering PPE “to both staff and customers, in order to prevent the spread.” Compl. ¶ 50. In

essence, they concede that at least some restrictions or regulations were warranted or justified,
suggesting that a line reasonably might be drawn on the basis of safety measures having less
impact on the economic viability of restaurants. However, no such line existed at the time of the
conduct complained of, and may not practically drawn in some judicial decision. Clearly, it is
not “beyond all question” that the actions Defendants chose to take constituted “a plain, palpable
invasion of rights secured by fundamental law.” See Hopkins Hawley LLC, 518 F. Supp. 3d at
714 (concluding that claims were unlikely to succeed under Jacobsen because Plaintiffs sought
relaxation of the Dining Policy at issue and implicitly conceded that public health regulation of
restaurants in a pandemic is constitutional).
Plaintiffs’ claims plainly fail under Jacobsen, and Defendants would be entitled to
dismissal under this standard. The same is the case under traditional constitutional analysis.
2. Traditional Constitutional Analysis
a. Fourteenth Amendment Procedural Due Process

Plaintiffs claim that they were deprived of their Fourteenth Amendment
procedural due process right to have notice and a hearing before their livelihood was taken away
by regulatory or executive action. Compl. ¶ 79.
The Fourteenth Amendment requires notice and an opportunity to be heard before
individuals may be deprived of property rights. Although the Supreme Court has recognized a
property interest in one’s livelihood, see Bd. of Regents of State Colleges v. Roth, 408 U.S. 564,
572 (1972), the procedural due process rights are triggered only by adjudicative—rather than
legislative—actions. Adjudicative actions are “designed to adjudicate disputes facts in particular
cases.” O’Bradovich v. Vill. of Tuckahoe, 325 F. Supp. 2d 413, 429 (S.D.N.Y. 2004). In
contrast, legislative actions have “general application and look to the future;” they carry no due

process protections. Id. I hold that Plaintiffs do not plausibly allege a deprivation of their
procedural due process rights because Defendants’ EOs and EEOs were plainly legislative.
Plaintiffs argue that the EOs and EEOs were adjudicative because of their
“arbitrary nature” and the way they “affected certain industries but not others, within their
designation between essential and non-essential businesses.” Opposition to Motion to Dismiss
by Defendant Cuomo (“Opp.”), at 2–3, ECF No. 47 (describing the interest as the right to work
“at all”).1 Plaintiffs do not offer any explanation in their opposition, nor allegations in the

1 Although Defendants separately moved to dismiss the Complaint against each of them, and Plaintiff opposed each
of those motions, see ECF Nos. 47, 57, Plaintiff makes identical arguments in both. I therefore cite to relevant pages
in Plaintiffs’ Opposition to Defendant Cuomo’s motion.
Complaint, suggesting that the EOs or EEOs were not generally applicable to all restaurants or
wholly prospective. Plaintiffs do not allege that they were the subject of individual enforcement
actions or that they were singled out for especial treatment. Rather, the gravamen of their
Complaint is that restaurants were singled out for disfavorable treatment among businesses with

indoor operations. In sum, the Complaint clearly alleges that Defendants’ orders were legislative
in nature.
Recent cases considering challenges to similar restrictions on indoor dining do not
compel a contrary conclusion. Indeed, every federal court to consider this question has found the
relevant EOs and EEOs legislative in nature. See, e.g., Our Wicked Lady LLC, U.S. Dist. LEXIS
44505, at *5 (finding that the challenged EOS, including an order limiting indoor dining capacity
to 25% were legislative in nature because they applied prospectively to all restaurants and fitness
centers in New York City); Hopkins Hawley, 518 F. Supp. 3d at 714 (finding that “the Dining
Policy” was legislative in nature because it applied generally and prospectively to all
restaurants); Bimber’s Delwood, Inc. v. James, 496 F. Supp. 3d 760, 784 (W.D.N.Y. 2020)

(finding that the EOs were legislative because they “appl[ied] generally” and did “not adjudicate
facts in individual cases”).
Because the EOs were clearly legislative in nature, Plaintiffs had no right to
notice or a hearing and thus fail to plausibly allege a procedural due process violation.
b. Fourteenth Amendment Substantive Due Process
Plaintiffs claim that Defendants deprived them of their right to pursue their
livelihood. Compl. ¶ 80; see also Opp. at 3 (describing the interest as the right to work “at all”).
The Due Process Clause of the Fourteenth Amendment “protects against certain
government actions regardless of the fairness of the procedures used to implement them.”
Bryant v. New York State Educ. Dep’t, 692 F.3d 202, 217 (2d Cir. 2012) (citation omitted). The
protections only attach to: (i) conduct that “shocks the conscience,” and (ii) conduct that violates
a fundamental right—a right implicit in the concept of ordered liberty. United States v. Salerno,
481 U.S. 739, 746 (1987) (cleaned up); Hopkins Hawley LLC, 518 F. Supp. 3d at 715. Plaintiffs

argue that their claims are viable under either theory. I disagree and hold that they fail to
plausibly allege a substantive due process violation.
Under the first theory, Plaintiffs argue that the COVID-related dining restrictions
shock the conscience because they took away Plaintiffs’ “right to earn a livelihood.” Opp. at 5.
They offer no authority in support of this bold proposition but merely assert that “[t]aking
anyone’s right to earn a living, to the point where it leads to the shutdown of their income stream
and thus blocking them from enjoying rights implicit in the concept of ordered liberty, is a
blatant shock of the conscience.” Id. This theory fails for two reasons.
First, Plaintiffs fail to plausibly allege conduct that shocks the conscience. The
EOs and EEOs are not the type of “arbitrary action” or “egregious official conduct” “intended to

injure in some way unjustifiable by any government interest.” Cty. of Sacramento v. Lewis, 523
U.S. 833, 845–46 (1998). At best, Plaintiffs argue against policies that they consider ill-
advised—i.e., allowing certain businesses to operate unrestricted—but they have identified no
conduct so egregious that it shocks the conscience. See Hopkins Hawley LLC, 518 F. Supp. 3d at
715 (finding that even restrictions lacking scientific support do not satisfy the high bar of the
shock the conscience standard); see also Maniscalco v. New York City Dep’t of Educ., 2021 U.S.
Dist. LEXIS 184971, at *3 (finding that mandate requiring educators to take FDA-approved
vaccine does not shock the conscience).
Second, even assuming that a deprivation of the right to earn a livelihood shocks
the conscience, Plaintiffs’ claims would still fail because they do not, in fact, allege such a
deprivation. The Complaint concedes that the EOs and EEOs restricted only indoor dining and
allowed restaurants to offer delivery and take-out services. That Plaintiffs chose not to offer

such services, even where their failure to do so forced them to shut down operations altogether,
does not alter the analysis. While the EOs and EEOs may have rendered operating less
profitable, this alone is insufficient to plausibly allege a substantive due process violation. See
JWJ Indus., Inc. v. Oswego Cty., 538 Fed. App’s 11, 14 (2d Cir. 2013).
Under the second theory, Plaintiffs argue—again without relevant citation—that
the right to earn a livelihood is a fundamental right. Opp. at 4. A right is fundamental if it is
“implicit in the concept of ordered liberty, or deeply rooted in this Nation's history and
tradition.” Bryant, 692 F.3d at 217 (cleaned up). If the infringed right is fundamental, the
regulation is subject to strict scrutiny, and “must be narrowly tailored to serve a compelling
government interest.” Id. If the regulation does not infringe a fundamental right, the

government action “need only be reasonably related to a legitimate state objective.” Id.
(quotation marks omitted); see also Grand River Enterprises Six Nations, Ltd. v. Boughton, 988
F.3d 114, 121 (2d Cir. 2021) (substantive due process is not offended when government action is
“rationally related to a legitimate state interest.”).
Although courts have recognized that the due process clause “includes some
generalized due process right to choose one’s field of private employment,” that right “is
nevertheless subject to reasonable government regulation.” Conn v. Gabbert, 526 U.S. 286,
291–92 (1999); see also New Motor Vehicle Bd. of California v. Orrin W. Fox Co., 439 U.S. 96,
107 (1978) (citation omitted) (“Certain kinds of business may be prohibited; and the right to
conduct a business, or to pursue a calling, may be conditioned . . . .”). To state a claim as
Plaintiffs here seek to do, they must allege “a complete prohibition of the right to engage in a
calling . . . .” Conn, 526 U.S. at 292. “[B]usiness losses alone do not implicate the Due Process
right of occupational choice.” Hu v. City of N.Y., 927 F.3d 81, 102 (2d Cir. 2019).

Plaintiffs do not allege “a complete prohibition.” As noted above, the Complaint
concedes that the EOs and EEOs allowed Plaintiffs to continue operating and prohibited only
indoor dining. See, e.g., Compl. ¶ 47 (alleging that as a result of the EOs, Plaintiffs were “forced
to either close their restaurants or limit their business to take-out and delivery . . . ”). Courts
have repeatedly found that these and similar restrictions do not amount to a complete prohibition,
nor do they infringe a fundamental right. See, e.g., Heidel, 2021 U.S. Dist. LEXIS 203572, at
*30; Our Wicked Lady LLC v. Cuomo, 2021 U.S. Dist LEXIS 44505, at *4 (S.D.N.Y. Mar. 9,
2021); Columbus Ale House, 495 F. Supp. 3d at 94.
Plaintiffs also do not plausibly allege that the EOs and EEOs were unreasonable.
To survive constitutional muster, the restrictions “need only be reasonably related to a legitimate

state objective.” Bryant, 692 F.3d at 217. Courts considering these and similar orders have
repeatedly found that they are reasonably related to the governmental interest in containing the
spread of COVID. See, e.g., Columbia Ale House, 495 F. Supp. 3d at 93 (noting the real and
substantial relationship between governmental restrictions on indoor dining and the public health
goal of containing the virus).
Plaintiffs argue that the EOs and EEOs lacked a legitimate or rational purpose
because “certain businesses were allowed to operate unrestricted.” But this alone does not
establish a lack of a real and substantial relationship to the state interest in containing the virus.
Moreover, Plaintiffs do not sufficiently address the basis for the distinction they seek to draw.
The businesses that were allowed to operate unrestricted (to the extent that this is factually
accurate) do not pose the type of transmission threat that indoor dining does because individuals
can remain masked and socially distanced while patronizing such establishments. By necessity,
eating indoors at a restaurant requires that customers be unmasked and within close proximity,

increasing the likelihood of transmission. I find it wholly rational for the government to place
special or different restrictions on indoor dining because of the unique threat posed. See Our
Wicked Lady LLC, U.S. Dist. 44505, at *4 (finding it “rational for the government to limit the
number of individuals in close contact in enclosed spaces to avoid the spread of the virus”). To
the extent that Defendants erred by excluding other businesses does not establish that they
violated Plaintiffs’ constitutional rights, nor does it render the restrictions “arbitrary.” Columbia
Ale House, 495 F. Supp. 3d at 93 (“In this pandemic, regulating to protect public health is
fraught with medical and scientific uncertainty,” leaving room for reasonable policy
disagreements about the efficacy of official actions).
c. Fourteenth Amendment Equal Protection

Plaintiffs claim that they were denied “[t]he right to be treated as other similarly
situated businesses.” Compl. ¶ 81; Opp. at 5–6 (referring to the right to be treated similarly as
other indoor establishments).
The Equal Protection Clause of the Fourteenth Amendment “embodies a general
rule that States must treat like cases alike, but may treat unlike cases accordingly.” Heidel, 2021
U.S. Dist. LEXIS 203572, at *6 (quoting Winston v. City of Syracuse, 887 F.3d 553, 560 (2d Cir.
2018)). “If a law neither burdens a fundamental right nor targets a suspect class, [courts] will
uphold the legislative classification so long as it bears a rational relation to some legitimate end.”
Id. To bring an equal protection claim, where as here, Plaintiffs do not claim to be a member of
a protected class, they must make a threshold showing that they were treated differently from
similarly situated comparators. Airday v. City of New York, 131 F. Supp. 3d 174, 184 (S.D.N.Y.
2015). That is, they must “allege the existence of similarly situated comparators” who received
more favorable treatment. Viteritti v. Inc. Vill. of Bayville, 918 F. Supp. 2d 126, 135 (E.D.N.Y.

2013). Plaintiffs advance two classes of comparators, neither of which are similarly situated.
Their failure to make the required threshold showing is fatal to their claims.
Plaintiffs allege that “gyms, personal care services, grocery and liquor stores, food
banks and convenience stores” as well as “construction, museums, art galleries, movie theaters,
casinos, [and] bowling alleys” are similarly situated comparators for the purposes of COVID-19
transmission because they are all indoor establishments. Id. ¶¶ 49–51, 108. The case law
disagrees. First, courts have repeatedly observed that indoor dining poses a unique and greater
risk to virus transmission because diners cannot wear masks while eating. See, e.g., Columbus
Ale House, 495 F. Supp. 3d at 93; Hopkins Hawley, 518 F. Supp. 2d at 708. Courts have also
observed the additional risk posed by indoor dining because it “necessarily brings individuals

from different households together in a restaurant, even if at a distance.” Columbus Ale House,
495 F. Supp. 3d at 93. Finally, I would note that in addition to the obvious and most important
distinctions based upon the requirement that patrons be unmasked to eat, the patronage patterns
associated with a number of Plaintiffs’ alleged comparators are markedly different. Patrons do
not linger in the same way as restaurant diners do when they go to convenience stores or art
museums or even gyms. Patrons are either in-and-out, as quickly as feasible, or, at the very least,
they do not sit idle. In short, Plaintiffs’ efforts to shoehorn themselves into a class of “indoor
establishments” disregards the unique risks of transmission posed by an activity that requires
customers to be unmasked and brings together people from different households, both for an
extended period of time.
Plaintiffs also allege that as “New York city restaurants,” Plaintiffs were treated
less favorably than “restaurants in the rest of New York State” during the reopening process.

Compl. ¶ 66 (alleging that Plaintiffs were restricted to 50 percent capacity, whereas restaurants in
other parts of the State were allowed to operate at 75 percent capacity). In their opposition,
Plaintiffs argue that Defendant Cuomo’s references to higher spread in higher populated areas
improperly focuses on geography. Opp. at 6. In Plaintiffs’ telling, once inside a restaurant, all
are identically situated as to COVID risk. Id. Moreover, they argue that Defendants lacked a
rational basis for the unequal treatment because Plaintiffs took all precautions to eliminate spread
in their establishments.
Once again, Plaintiffs miss the point. To begin, history and the recent rise and
rapid spread of the omicron variant vitiate Plaintiffs’ contention that it would even be possible to
“eliminate” spread, notwithstanding their best efforts. More to the point, New York City and all

its businesses operate in a distinct and unique setting. New York City’s “population density . . .
makes it more likely that an outbreak linked to indoor dining will spread throughout the
community at large.” Columbus Ale House, 495 F. Supp. 3d at 93. So unique is New York City
that state courts have found New York City restaurant and bar owners are not similarly situated
to those in Westchester or even Long Island. See Bocelli Ristorante Inc. v. Cuomo, 139
N.Y.S.3d 481, 488–89 (N.Y. Sup. Ct. Richmond C’ty 2020).
Even assuming Plaintiffs have identified similarly situated comparators, their
claims still fail because Plaintiffs have not met their burden of negating “every conceivable basis
which might support” the challenged classification. Our Wicked Lady, 2021 U.S. Dist. LEXIS
44505, at *6. The orders “bear a rational relationship to the goal of preventing the spread of
COVID-19.” Id. Plaintiffs’ allegations about the purportedly irrational and arbitrary character
of the restrictions are legal conclusions, unsupported by factual allegations, and therefore do not
plausibly state an equal protection claim. See Heidel, 2021 U.S. Dist. LEXIS 205372, at *37.

d. Fifth Amendment Takings Clause
Plaintiffs argue that they suffered a taking because the EOs and EEOs “made
indoor dining illegal,” and “effectively denied all profitable use to the property as configured.”
Opp. at 7; Compl. ¶ 123 (alleging that four of the twelve plaintiffs were “forced” to close their
businesses).
When the government takes possession of property, or an interest in property, for
a public purpose, it has “a categorical duty to compensate the former owner.” Tahoe-Sierra
Pres. Council v. Tahoe Reg’l Planning Agy., 535 U.S. 302, 322 (2002). Takings may be physical
or regulatory—that is, the government may physically occupy or take possession of property,
see, e.g., Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982), or the

government may pass regulations that interfere with property owners’ beneficial use of their
property. See, e.g., Penn Central Transp. Co. v. New York City, 484 U.S. 104 (1978).
Regulatory takings are further divided into “categorical” and “non-categorical” takings.
Sherman v. Town of Chester, 752 F.3d 554, 564 (2d Cir. 2014). Plaintiffs claim to have suffered
both types of regulatory takings. I disagree and hold that Plaintiffs fail to plausibly allege a
taking of any type.
Plaintiffs do not plausibly allege a categorical taking because they do not allege
that their property was taken for a public use, or used in any way by the government. A
categorial taking occurs when “a regulation . . . denies all economically beneficial or productive
use of land.” Murr v. Wisconsin, 137 S. Ct. 1933, 1937 (2017); cf. Kelo v. City of New London,
545 U.S. 469 (2005) (government transferred property ownership from one private party to
another); Loretto, 458 U.S. at 419 (government appropriated a part of a rooftop in order to
provide cable TV access for apartment tenants). Plaintiffs also do not plausibly allege that they

were deprived of virtually all economic value because, as the Complaint admits, the EOs allowed
Plaintiffs to offer take-out and delivery services. Cf. Palazzolo v. Rhode Island, 533 U.S. 606
(2001) (no regulatory taking by wetlands regulation because the owner could still construct a
residence on the land). Although “[t]akeout, delivery and outdoor dining, alone or in
combination, were likely less profitable than indoor dining, they certainly allowed for productive
and economically beneficial use of plaintiffs’ interest in their businesses.” Heidel, 2021 U.S.
Dist. LEXIS 203572, at *24–25 (citing Tahoe-Sierra, 535 U.S. at 331–32). Moreover, the fact
that four Plaintiffs did close their doors is irrelevant because the Plaintiffs were not “required to .
. . close[] under the Executive Orders.” Bimber’s, 496 F. Supp. 3d at 784; see also McCarthy v.
Cuomo, No. 20-CV-2124, 2020 WL 3286530, at *5 (E.D.N.Y. June 18, 2020) (“The COVID-19

Executive Orders plainly do not deny [plaintiff] all economically beneficial use of his property.
He could, for example, offer food and drinks . . . for take-out or delivery.”).
Plaintiffs also allege that they suffered a non-categorical regulatory taking
because the EOs and EEOs interfered with their “reasonable investment backed expectations”
and had “substantial economic impact.” Opp. at 7. A non-categorical taking may result from
“[a]nything less than a complete elimination of value, or a total loss.” Tahoe-Sierra, 535 U.S. at
330. To determine whether a non-categorical regulatory taking has occurred, requiring
compensation, courts assess: (i) the economic impact of the regulation on the owner; (ii) the
extent to which the regulation interferes with distinct investment-backed expectations; and (iii)
the character of the governmental action, including whether the action promoted “the health,
safety, morals, or general welfare of the public” or amounted to a “physical invasion” of
property. Penn Central Transp. Co., 484 U.S. at 124-28; accord. Murr, 137 S. Ct. at 137; Our
Wicked Lady LLC v. Cuomo, 2021 U.S. Dist. LEXIS 44505, at *6 (S.D.N.Y. Mar. 9, 2021).

Courts are wont to find a taking when the restrictions are “temporary,” “prospective in
application,” and consist of “negative restriction[s] rather than . . . affirmative exploitation[s] by
the state.” Buffalo Teachers, 464 F.3d at 375.
Both case law and common-sense render Plaintiffs’ claims for a non-categorical
regulatory taking implausible. Indeed, none of the Penn Central factors weigh in favor of
finding a taking. First, courts evaluating challenges to restrictions on indoor dining have
stressed—and the Complaint here concedes, see, e.g., Compl. ¶¶ 62, 66—the restrictions were
temporary and could only be prospective in nature. See Bimber’s, 496 F. Supp. 3d at 784; Our
Wicked Lady, U.S. Dist. LEXIS 44505, at *6. While the restrictions undoubtedly had a negative
economic impact on Plaintiffs’ businesses, Plaintiffs admittedly were not denied all economic

use of their property. See Buffalo Teachers Fed’n, 464 F.3d at 375 (finding temporary and
partial nature of wage freeze weighed against finding a taking); Kabrovski v. City of Rochester,
N.Y., 149 F. Supp. 3d 413, 425 (W.D.N.Y. 2015) (“[I]t is well settled that a ‘taking does not
occur merely because a property owner is prevented from making the most financially beneficial
use of a property.”) (citation omitted). Thus, the temporary and prospective nature of the
restrictions weighs against finding a taking.
As to the second factor, Plaintiffs allege that the EOs and EEOs interfered with
their reasonable investment-backed expectations because “they all opened restaurants before
March 2020, and they did so in reliance on a state of affairs that did not include Defendant[’]s
regulatory regime[,]” and “operation of their businesses . . . was not conditioned on compliance
with this heavy state regulation.” Compl. ¶ 124. Given that Plaintiffs, as dining establishment
operators, are ordinarily subject to a panoply of health-related regulations, however, I find it
implausible that the institution of new regulations would come as a surprise, or that such changes

would so substantially interfere with any expectations they may have had, as to require
compensation. This is especially so, given that Plaintiffs were permitted to continue operating.
Thus, the second factor also weighs against finding a taking.
Finally, and most importantly, as to the third factor, the restrictions at issue were
purely negative and involved no physical invasion or appropriation of Plaintiffs’ property. See
Buffalo Teachers Fed’n, 464 F.3d at 375; Bimber’s, 496 F. Supp. 3d at 784 (finding that
restrictions on indoor dining were “a negative restriction” weighing against a taking); Our
Wicked Lady, U.S. Dist. LEXIS 44505, at *6 (same). Courts have also repeatedly recognized
that a public program that “adjusts the benefits and burdens of economic life to promote the
common good” is uncharacteristic of a regulatory taking. Id. at *6; accord. Bimber’s, 496 F.

Supp. 3d at 784 (finding that the restrictions on indoor dining were “a temporary exercise of the
police power to protect the health and safety of the community, which weighs against a taking”).
As Judge Cote so aptly stated in Our Wicked Lady, “[a]ctions like those taken through these
orders, which are undertaken to address a global pandemic, do not constitute a regulatory
taking.” Our Wicked Lady, U.S. Dist. LEXIS 44505, at *6. Thus, the third factor also weighs
against finding a taking.
Because all three factors weigh against finding a taking, Plaintiffs fail to meet
their “heavy burden” to plausibly allege a regulatory taking, and Defendants are entitled to
dismissal of these claims. Our Wicked Lady LLC, 2021 U.S. Dist. LEXIS 44505, at *6 (quoting
Buffalo Teachers Fed’n v. Tobe, 464 F.3d 362, 375 (2d Cir. 2006)).
e. Contracts Clause
Plaintiffs argue that the EOs and EEOs “impair[ed their] contractual

relationships” with their “landlords, vendors, creditors, workers, and employees to the point of
frustrating the purpose of . . . even entering into these contracts.” Opp. at 8. I disagree.
To determine whether a law or government action violates the Contracts Clause,
courts consider “the extent to which the law undermines the contractual bargain, interferes with a
party’s reasonable expectations, and prevents the party from safeguarding or reinstating his
rights.” Melendez v. City of New York, No. 20-CV-4238, 2021 U.S. App. LEXIS 32327, at *49
(quoting Sveen v. Melin, 138 S. Ct. 1815, 1821–22 (2018)). The Second Circuit treats the
aggrieved party’s reasonable expectations as the touchstone of the analysis: “Impairment is
greatest where the challenged government legislation was wholly unexpected.” Elmsford Apt.
Assocs., LLC v. Cuomo, 469 F. Supp. 3d 148, 169 (S.D.N.Y. 2020) (quoting Sanitation &

Recycling Indus., Inc. v. City of New York, 107 F.3d 985, 993 (2d Cir. 1997)). For those who do
business in a heavily regulated industry, however, “the expected costs of foreseeable future
regulation are already presumed to be priced into the contracts formed under the prior
regulation.” Id. (quoting All. of Auto. Mfrs., Inc. v. Currey, 984 F. Supp. 2d 32, 55 (D. Conn.
2013), aff'd, 610 F. App’x 10 (2d Cir. 2015)).
Plaintiffs were not prohibited from operating or from generating income from
takeout or delivery sales, and thus their ability to meet their contractual obligations was not
substantially impaired. Cf. Melendez, No. 20-CV-4238, at *79 (holding that New York’s
Guaranty Law substantially impaired landlords’ contractual rights because the law rendered any
contractual obligations unenforceable for approximately sixteen months and prohibited the
landlords from ever recovering lost rents). Further, as noted above, Plaintiffs operate in a
heavily-regulated industry and are ordinarily subject to a panoply of health-related regulations.
It is therefore, again, implausible that they could not reasonably foresee that future health-related

regulations might alter the terms upon which they could operate. Finally, because the EOs
allowed Plaintiffs to continue operating, they were not prevented from safeguarding their rights.
That said, even assuming that Plaintiffs’ contractual rights had been temporarily impaired, as
later EOs and EEOs began rolling back restrictions on indoor dining, Plaintiffs were not
prevented from reinstating their rights.
Because Plaintiffs do not plausibly allege a violation of their rights under the
Contracts Clause, Defendants are entitled to dismissal of these claims.
CONCLUSION
For the reasons stated above, Defendants’ motions to dismiss are granted. The argument
currently scheduled for February 15, 2022 is canceled. The Clerk shall terminate the motions
(ECF Nos. 39, 49) and grant judgment in Defendants’ favor, dismissing the case against them.
SO ORDERED.

Dated: February 7, 2022 _____ /s/ Alvin K. Hellerstein_____
New York, New York ALVIN K. HELLERSTEIN
United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10338489. Public record. Not legal advice.