Sid Boys Corp. et al v. Cuomo et al
| Sid Boys Corp. d/b/a Kellogg's Diner, 143 Cafe Inc. d/b/a Toscana, Sid Boys Corp. doing business as Kellogg's Diner, 143 Cafe Inc. doing business as Toscana and Den Kitchen d/b/a Parkway Diner |
| Andrew M. Cuomo, The State of New York and Attorney General of the State of New York |
| 1:2020cv06249 |
| December 24, 2020 |
| US District Court for the Eastern District of New York |
| Peggy Kuo |
| Eric N Vitaliano |
| Civil Rights: Other |
| 42 U.S.C. § 1983 Civil Rights Act |
| None |
Docket Report
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Filing 19
SCHEDULING ORDER: A Telephone Initial Conference will be held in this case on March 31, 2021 at 10:00 a.m. before Peggy Kuo, United States Magistrate Judge. All counsel are required to attend. The parties are directed to call toll free (877) 336-1274 and input the Access Code 1453850 at the time of the Conference. No additional security code is needed. Once all parties are on the line, the call will be connected. (The parties are reminded that, pursuant to Local Civil Rule 1.8, they may not independently record any court proceedings. A transcript of the proceedings may be ordered from the Clerks Office.)Counsel are directed to the annexed Initial Conference Order for instructions. By March 25, 2021, the parties must file a joint and completed copy of the Proposed Discovery Plan, a PDF version of which may be found at: # https://img.nyed.uscourts.gov/files/forms/PK-discovplan.pdf Any request for adjournment of this or any other conference must be made in writing on notice to opposing parties, and must disclose whether or not all parties consent. No request for adjournment will be considered unless made at least two (2) business days before the scheduled conference, except in the event of an emergency. Counsel with knowledge and authority must be present. Per diem counsel may not appear without prior permission of the Court. Ordered by Magistrate Judge Peggy Kuo on 2/16/2021. (O'Neil-Berven, Ryan)
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ORDER: Per plaintiffs #18 letter, the #7 motion for a preliminary injunction has been withdrawn. Accordingly, the hearing scheduled for Wednesday, February 17, is cancelled. The parties are referred to Magistrate Judge Peggy Kuo for further pretrial case management. Ordered by Judge Eric N. Vitaliano on 2/16/2021. (Gary, Jordan)
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ORDER terminating #7 Motion for Preliminary Injunction. Plaintiffs have withdrawn their motion for a preliminary injunction. Ordered by Judge Eric N. Vitaliano on 2/16/2021. (Gary, Jordan)
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ORDER terminating #8 Motion for Preliminary Injunction. Plaintiffs have withdrawn their motion for a preliminary injunction. Ordered by Judge Eric N. Vitaliano on 2/16/2021. (Gary, Jordan)
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| Filing 18 Letter of Withdrawal of Preliminary Injunction Motion without prejudice by 143 Cafe Inc., Den Kitchen d/b/a Parkway Diner, Sid Boys Corp. (Mermigis, James) |
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ORDER: Per the Court's February 5, 2021 scheduling order, oral argument on plaintiffs' motion for a preliminary injunction shall be held on February 17, 2021 at 11 A.M. The Court will initiate the video conference call via Microsoft Teams by sending an invitation to join by email. The call-in instructions for the public are as follows: Dial 1-917-933-2166 at the scheduled time to access the call center. At the prompt enter access code 988 844 991. Persons granted remote access to proceedings are reminded of the general prohibition against photographing, recording, and rebroadcasting of court proceedings. Violation of these prohibitions may result in sanctions, including removal of court issued media credentials, restricted entry to future hearings, denial of entry to future hearings, or any other sanctions deemed necessary by the court. Ordered by Judge Eric N. Vitaliano on 2/11/2021. (Gary, Jordan)
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| Filing 17 REPLY in Support filed by 143 Cafe Inc., Den Kitchen d/b/a Parkway Diner, Sid Boys Corp.. (Mermigis, James) |
| Filing 16 Letter Addressing the Impact of Governor Cuomo's Announcement regarding re-opening indoor dining at 25% Capacity pursuant to Your Honor's Order dated January 29, 2021. by 143 Cafe Inc., Den Kitchen d/b/a Parkway Diner, Sid Boys Corp. (Mermigis, James) |
| Filing 15 NOTICE of Appearance by Maryam Jazini Dorcheh on behalf of All Defendants (aty to be noticed) (Dorcheh, Maryam) |
| Filing 14 Letter addressing the impact of Governor Cuomo's announcement regarding the reopening of indoor dining at 25% capacity pursuant to Your Honor's Order dated January 29, 2021 by Attorney General of the State of New York, Andrew M. Cuomo, The State of New York (Dorcheh, Maryam) |
| Filing 13 AFFIDAVIT/DECLARATION in Opposition re #5 Emergency MOTION for Preliminary Injunction Order to Show Cause Additional Exhibits to Declaration of Debra Blog in Support of State Defendants' Opposition to Plaintiffs' Motion for a Preliminary Injunction filed by All Defendants. (Attachments: #1 Exhibit Ex. Q: Governor Cuomo Updates New Yorkers, #2 Exhibit Ex. R: Population Density a Factor in Spread of COVID 19, #3 Exhibit Ex. S: Does Density Aggravate COVID 19 Pandemic, #4 Exhibit Ex. T: Testing Strategy of Coronavirus, #5 Exhibit Ex. U EO 202.81, #6 Exhibit Ex. V EO 202.89, #7 Exhibit Ex. W Indoor Dining Closure FAQ, #8 Exhibit Ex. X Indoor Dining in NYC Liquor Authority, #9 Exhibit Ex. Y: DOH NYC Indoor Food Services Detailed Guidance, #10 Exhibit Ex. Z: Why Bars Are Hotspots for COVID Transmission) (Dorcheh, Maryam) |
| Filing 12 AFFIDAVIT/DECLARATION in Opposition re #5 Emergency MOTION for Preliminary Injunction Order to Show Cause Additional Exhibits to Declaration of Debra Blog in Support of State Defendants' Opposition to Plaintiffs' Motion for a Preliminary Injunction filed by All Defendants. (Attachments: #1 Exhibit Ex. AA USA Today Article, #2 Exhibit Ex. BB: NPR Article, #3 Exhibit Ex. CC: Food Service Guidance, #4 Exhibit Ex. DD: WHO Situation Report 1, #5 Exhibit Ex. EE: WHO Novel Coronavirus, #6 Exhibit Ex. FF: Statement on the Second Meeting of International Health Regulations, #7 Exhibit Ex. GG: WHO Director General's Opening Remarks, #8 Exhibit Ex. HH: National Emergency Proclamation, #9 Exhibit Ex. II EO 202, #10 Exhibit Ex. JJ EO 202.1, #11 Exhibit Ex. KK EO 202.3, #12 Exhibit Ex. LL EO 202.4, #13 Exhibit Ex. MM EO 202.5, #14 Exhibit Ex. NN EO 202.6, #15 Exhibit Ex. OO Governor's Mar. 20, 2020 Press Release re NY State on Pause, #16 Exhibit Ex. PP EO 202.16, #17 Exhibit Ex. QQ EO 202.17, #18 Exhibit Ex. RR EO 202.34, #19 Exhibit Ex. SS Governor Cuomo's announcement of the UK strain in NY) (Dorcheh, Maryam) |
| Filing 11 AFFIDAVIT/DECLARATION in Opposition re #5 Emergency MOTION for Preliminary Injunction Order to Show Cause Declaration of Debra Blog in Support of State Defendants Opposition to Plaintiffs Motion for a Preliminary Injunction filed by All Defendants. (Attachments: #1 Exhibit Exhibit A- CDC Scientific Brief, #2 Exhibit Exhibit B- Governor Cuomo's Jan. 29, 2021 announcement, #3 Exhibit Exhibit C: WHO Scientific Brief, #4 Exhibit Exhibit D: WHO's Question and Answer Page, #5 Exhibit Exhibit E: CDC Media Statement, #6 Exhibit Exhibit F: CDC's Cleaning and Disinfection for Households, #7 Exhibit Exhibit G: CDC's Guidance on Symptoms, #8 Exhibit Exhibit H: Kwon KS, Park JL, #9 Exhibit Exhibit I: The Hill Article, #10 Exhibit Exhibit J: CDC's Social Distancing, #11 Exhibit Exhibit K: Considerations for Restaurant and Bar Operators, #12 Exhibit Exhibit L: Proceedings of the National Academy of Science, #13 Exhibit Exhibit M: Lu, Jianyuan, #14 Exhibit Exhibit N: Gee, Emily, #15 Exhibit Exhibit: O Fisher, Kiva, #16 Exhibit Exhibit P: Steinhauer, Jennifer) (Dorcheh, Maryam) |
| Filing 10 MEMORANDUM in Opposition re #5 Emergency MOTION for Preliminary Injunction Order to Show Cause filed by All Defendants. (Dorcheh, Maryam) |
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SCHEDULING ORDER: Oral argument on plaintiffs' #5 motion for a preliminary injunction shall be held by videoconference on 2/17/2021 at 11:00 AM. The Court will provide videoconference information to the parties prior to the hearing. Ordered by Judge Eric N. Vitaliano on 2/5/2021. (Gary, Jordan)
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ORDER: In their pleadings, plaintiffs seek the following equitable relief: declaratory judgment that Executive Order 202.81 which compels the shutdown of indoor dining in New York City to be unlawful and an order enjoining Defendants and their agents, officers, servants and employees from enforcing Executive Order 202.81. Dkt. 1 at 1819. Similarly, the preliminary injunction sought by plaintiffs would enjoin Defendants, from enforcing Executive 202.81 and allow[] NYC Indoor Dining to resume to pre-December 14, 2020 state issued guidance. Dkt. 5 at 2. The Court understands from media accounts written today, January 29, 2021, that Governor Cuomo intends to permit indoor dining to resume in New York City restaurants at 25% capacity beginning on February 14, 2021. See https://www.nytimes.com/2021/01/29/nyregion/indoor-dining-nyc-restaurants.html. Accordingly, in addition to the currently scheduled briefing, plaintiffs and the state are each directed to file, on or before February 5, 2021, separate, supplemental memoranda addressing what impact, if any, the governors contemplated order has on plaintiffs pending application for relief. This issue should not be duplicatively addressed in the briefing currently scheduled. Ordered by Judge Eric N. Vitaliano on 1/29/2021. (Gary, Jordan)
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ORDER granting #9 Motion for Preliminary Injunction Briefing Schedule. The parties' joint expedited briefing schedule is adopted. The state shall file its opposition to plaintiffs' motion for a preliminary injunction by February 5, 2021, at 5:00 p.m. Plaintiffs shall file their reply by Monday, February 8, at 5:00 p.m. The Court will enter a subsequent order concerning the scheduling of oral argument. Ordered by Judge Eric N. Vitaliano on 1/28/2021. (Gary, Jordan)
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| Filing 9 Letter MOTION for Preliminary Injunction Briefing Schedule on Consent by 143 Cafe Inc., Den Kitchen d/b/a Parkway Diner, Sid Boys Corp.. (Mermigis, James) |
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ORDER: Plaintiffs are directed to confer with Deanna Collins or another appropriate representative of the state and to agree upon an expedited briefing schedule for plaintiff's motion for a preliminary injunction. The parties are to submit a joint briefing schedule, or separate proposals if agreement cannot be reached, no later than the close of business on January 28, 2021. Ordered by Judge Eric N. Vitaliano on 1/21/2021. (Gary, Jordan)
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| Filing 8 Emergency MOTION for Preliminary Injunction Expert Declaration of Dr. Jayanta Bhattacharya by 143 Cafe Inc., Den Kitchen d/b/a Parkway Diner, Sid Boys Corp.. (Mermigis, James) |
| Filing 7 Emergency MOTION for Preliminary Injunction Declaration of Irene Siderakis by 143 Cafe Inc., Den Kitchen d/b/a Parkway Diner, Sid Boys Corp.. (Attachments: #1 Declaration Declaration of Nick Kontos, #2 Declaration Declaration of Driton Mila) (Mermigis, James) |
| Filing 6 Emergency MOTION for Preliminary Injunction Memorandum of Law in Support by 143 Cafe Inc., Den Kitchen d/b/a Parkway Diner, Sid Boys Corp.. (Attachments: #1 Exhibit Executive Order 202.3, #2 Exhibit Executive Order 202.41, #3 Exhibit Reopening New York Food Services Guidelines, #4 Exhibit Governor Cuomo Transcript-6/25/20, #5 Exhibit Executive Order 202.48, #6 Exhibit August 2020, Rent Report -NYC Hospitality Alliance, #7 Exhibit Executive Order 202.61, #8 Exhibit Reopening NYC Indoor Food Services, #9 Exhibit Governor Cuomo Transcript- 11/25/20, #10 Exhibit Statewide Contact Tracing Data, #11 Exhibit Executive Order 202.81, #12 Exhibit Manhattan Chart from 11/17/20-12/19/20- % Positive Results, #13 Exhibit NYS Comptroller Report- Restaurant Industry, #14 Exhibit Amherst Pizza v. Cuomo Preliminary Injunction Decision, #15 Exhibit Zoom Tan v. Cuomo Preliminary Injunction Decision, #16 Exhibit Lasertron v. Cuomo Preliminary Injunction decision, #17 Exhibit Athletes Unleashed v. Cuomo Preliminary Injunction Decision, #18 Exhibit Photos of limited indoor dining restrictions at malls and a restaurant in Nassau County) (Mermigis, James) |
| Filing 5 Emergency MOTION for Preliminary Injunction Order to Show Cause by 143 Cafe Inc., Sid Boys Corp., Den Kitchen d/b/a Parkway Diner. (Attachments: #1 Declaration) (Mermigis, James) |
| Filing 4 This attorney case opening filing has been checked for quality control. See the attachment for corrections that were made, if any. (Davis, Kimberly) |
| Filing 3 In accordance with Rule 73 of the Federal Rules of Civil Procedure and Local Rule 73.1, the parties are notified that if all parties consent a United States magistrate judge of this court is available to conduct all proceedings in this civil action including a (jury or nonjury) trial and to order the entry of a final judgment. Attached to the Notice is a blank copy of the consent form that should be filled out, signed and filed electronically only if all parties wish to consent. The form may also be accessed at the following link: #http://www.uscourts.gov/uscourts/FormsAndFees/Forms/AO085.pdf. You may withhold your consent without adverse substantive consequences. Do NOT return or file the consent unless all parties have signed the consent. (Davis, Kimberly) |
| Case Assigned to Judge Eric N. Vitaliano and Magistrate Judge Peggy Kuo. Please download and review the Individual Practices of the assigned Judges, located on our #website. Attorneys are responsible for providing courtesy copies to judges where their Individual Practices require such. (Davis, Kimberly) |
| Filing 2 Civil Cover Sheet.. by 143 Cafe Inc., Sid Boys Corp. (Mermigis, James) |
| Notice: Re: Incomplete Civil Cover Sheet. The Clerk's Office cannot assign this case without a completed Civil Cover Sheet. All questions *** INCLUDING the CERTIFICATION OF ARBITRATION ELIGIBILITY*** section on the second page needs to be answered. Please submit Civil Cover Sheet. This event can be uploaded under the event Other Documents - Proposed Summons/Civil Cover Sheet. (Bowens, Priscilla) |
| Filing 1 COMPLAINT against Attorney General of the State of New York, Andrew M. Cuomo, The State of New York filing fee $ 402, receipt number ANYEDC-13888333 Was the Disclosure Statement on Civil Cover Sheet completed -no,, filed by Sid Boys Corp. d/b/a Kellogg's Diner, 143 Cafe Inc. d/b/a Toscana. (Attachments: #1 Declaration Dr. Jayanta Bhattacharya, #2 Exhibit A - Executive Order 202.3, #3 Exhibit B - Executive Order 202.41, #4 Exhibit C - Reopening NY, Food Service Guidelines, #5 Exhibit D - Governor Cuomo- 6/25/20 Transcript, #6 Exhibit E - Executive Order 202.48, #7 Exhibit F - August 2020 Rent Report, #8 Exhibit G - Executive Order 202.61, #9 Exhibit H - NYC Restaurants Reopening Guidelines, #10 Exhibit I - Gov. Cuomo November 25, 2020 Transcript, #11 Exhibit J - Statewide Contact Tracing Data, #12 Exhibit K - Executive Order 202.81, #13 Exhibit L - Manhattan Infection Rate Graph between 11/17/20 and 12/19/20) (Mermigis, James) |
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