NDNY Sees Its Fair Share of COVID-19 Litigation

So far during the COVID-19 pandemic, five district judges in the Northern District have issued decisions in seven cases arising from various executive orders of Governor Andrew M. Cuomo responding to the pandemic. The cases have involved restrictions on religious gatherings, overnight religious camps, firearm retailers, weddings in indoor restaurants, outdoor auto racing, and interstate travel.

Religious Gatherings

In Soos v. Cuomo, 20-CV-0651, 2020 WL 3488742 (N.D.N.Y. June 26, 2020) (Sharpe, J.), religious practitioners and worshippers sued the Governor and various public officials under 42 U.S.C. § 1983 for alleged violations of the First Amendment’s Free Exercise Clause and Free Assembly Clause, and the Fourteenth Amendment’s Equal Protection Clause. Plaintiffs’ claims arose from the disparity between the Governor’s executive orders imposing limitations on religious gatherings and those imposing limitations on gatherings in businesses. Plaintiffs moved for preliminary injunction. Senior U.S. District Judge Gary L. Sharpe granted the motion, finding that Plaintiffs have demonstrated both a likelihood of success on the merits of their free exercise claim and a likelihood of irreparable injury in the absence of an injunction (given the loss of Plaintiffs’ free exercise rights).

Overnight Religious Camps

In Ass’n of Jewish Camp Operators v. Cuomo, 20-CV-0687, 2020 WL 3766496 (N.D.N.Y. July 6, 2020) (Suddaby, C.J.), operators of children’s Jewish overnight camps and parents sued the Governor under 42 U.S.C. § 1983 for alleged violations of the First Amendment’s Free Exercise Clause and the Fourteenth Amendment’s Due Process Clause. Plaintiffs’ claims arose from the disparity between the Governor’s executive orders prohibiting the operation of overnight summer camps anywhere in the state and those permitting the operation of day camps and higher education facilities. Plaintiffs moved for a preliminary injunction. Chief U.S. District Judge Glenn T. Suddaby denied the motion, finding that, although Plaintiffs had established irreparable harm, they did not establish likelihood of success on either their free exercise claim or due process claim.

Gun Retailers

In Dark Storm Industries LLC v. Cuomo, 20-CV-0360, 2020 WL 3833107 (N.D.N.Y. July 8, 2020) (Kahn, J.), a gun store operator and two of its customers sued the Governor and various public officials under 42 U.S.C. § 1983 for alleged violations of their Second Amendment right to keep and bear arms, and the Fourteenth Amendment’s Due Process Clause and Privileges and Immunities Clause. Plaintiffs’ claims arose from the Governor’s executive orders deeming gun shops to be nonessential businesses (subject to temporary closure), except for when doing business with police and military customers. Plaintiffs moved for partial summary judgment seeking declaratory relief and Defendants cross-moved for summary judgment. Senior U.S. District Judge Lawrence E. Kahn denied Plaintiff’s motion and granted Defendants’ cross-motion, finding that (1) under the circumstances, intermediate scrutiny was the appropriate level of scrutiny, and (2) the determination in question (that gun shops were nonessential businesses except for when doing business with police and military customers) was substantially related to the achievement of the important governmental interest of curbing transmission of COVID-19.

In National Rifle Association of America v. Cuomo, 20-CV-0385, 2020 WL 4732110 (N.D.N.Y. Aug. 14, 2020) (D’Agostino, J.), the NRA, on behalf of its members, sued the Governor and various state officials under 42 U.S.C. § 1983 for alleged violation of the their Second Amendment right to keep and bear arms and the Fifth Amendment’s Due Process Clause. Plaintiff’s claims arose from the Governor’s executive order reducing (by 100%) the in-person workforce of non-essential employers, including gun retailers and ammunition manufacturers not fulfilling orders for law enforcement. Defendants moved for judgment on the pleadings, and Plaintiff cross-moved for leave to amend its First Amended Complaint. U.S. District Judge Mae D’Agostino granted Defendants’ motion and denied Plaintiff’s cross-motion, finding that (under current Second Circuit law) an association does not have standing to bring an action as the representative of its members.

Weddings at Indoor Restaurants

In DiMartile v. Cuomo, 20-CV-0859, 2020 WL 4558711 (N.D.N.Y. Aug. 7, 2020) (Suddaby, C.J.), two engaged couples and an ordained minister sued the Governor and various public officials under 42 U.S.C. § 1983 for violating First Amendment’s Free Exercise Clause and Free Assembly Clause, and the Fourteenth Amendment’s Equal Protection Clause and Due Process Clause. Plaintiffs’ claims arose from the disparity between the Governor’s executive orders placing a 50-person limit on non-essential gatherings, including weddings at indoor restaurants, and those permitting larger gatherings for other purposes (including indoor restaurant patronage). Plaintiffs moved for a preliminary injunction to permit the first indoor wedding to occur as planned. Chief U.S. District Judge Suddaby granted the motion, finding that, because Plaintiff had sufficiently shown that they would comply with all the state’s restrictions on ordinary diners at the same indoor restaurant, they had shown a likelihood of success on the merits of their equal protection claim, which also entitled them to a presumption of irreparable harm.

In DiMartile v. Cuomo, 20-CV-0859, 2020 WL 4877239 (N.D.N.Y. Aug. 19, 2020) (Suddaby, C.J.), the above-described Defendants moved for a stay of the preliminary injunction pending their appeal to the Second Circuit, so as to prevent the second indoor wedding from occurring as planned. Chief U.S. District Judge Suddaby denied the motion after receiving additional unrebutted evidence from Plaintiffs that the attendees of the second wedding would comply with all the state’s restrictions on ordinary diners at the same indoor restaurant. Two days later, the Second Circuit granted an emergency stay, a day before the second wedding was to occur.

Outdoor Auto Racing

In Lebanon Valley Auto Racing Corp. v. Cuomo, 20-CV-0804, 2020 WL 4596921 (N.D.N.Y. Aug. 11, 2020) (Kahn, J.), five operators of outdoor auto racing facilities sued the Governor and State Attorney General under 42 U.S.C. § 1983 and 28 U.S.C. §§ 2201-02 for allegedly violating (among various state laws) the First Amendment’s Free Assembly Clause, the Fifth Amendment’s Takings Clause, and the Fourteenth Amendment’s Equal Protection Clause. Plaintiffs’ claims arose from the Governor’s executive order restricting how Plaintiffs’ businesses can operate. Plaintiffs moved for a temporary restraining order and preliminary injunction, and Defendants moved to dismiss the Complaint for failure to state a claim. Senior U.S. District Judge Lawrence E. Kahn granted Defendants’ motion and denied Plaintiff’s motion as moot, because (1) the right to freely assemble is not absolute, (2) Plaintiffs have not plausibly suggested an economic burden that outweighs the necessity of the government action sufficient to state a non-categorical regulatory takings claim, and (3) Plaintiffs have not plausibly suggested they have been treated differently from others similarly situated sufficient to state a selective-enforcement equal protection claim.

Interstate Travel

In Page v. Cuomo, 20-CV-0732, 2020 WL 4589329 (N.D.N.Y. Aug. 11, 2020) (Hurd, J.), an individual sued the Governor and State Health Commissioner under 42 U.S.C. § 1983 for violation of the Fourteenth Amendment’s Equal Protection Clause, Citizenship Clause and Due Process Clause. Plaintiff’s claims arose from the Governor’s executive order imposing a 14-day self-quarantine requirement on any person traveling to New York State from a state with a COVID-19 positive test rate exceeding a set threshold. Plaintiff moved for preliminary injunction, and Defendants moved to dismiss the Complaint for failure to state a claim. U.S. District Judge David N. Hurd denied Plaintiff’s motion and granted Defendants’ motion, because (1) Plaintiff had not plausibly alleged that the state was drawing a distinction between residents and non-residents (as opposed to between individuals with a mathematically heightened risk of spreading COVID–19 and those without such a risk) sufficient to state an equal protection claim, and (2) Plaintiff has not plausibly alleged that the executive order was either conscience-shocking or without an adequate remedy under state law sufficient to state a due process claim.