You are on page 1of 43

STATE OF NEW YORK

SUPREME COURT : COUNTY OF ERIE


___________________________________________________________

ALL DOLLED UP BEAUTY BAR, LLC,


AMY MARINO, d/b/a STUDIO A,
BEL VISO SKIN STUDIO, INC.,
BLINK BEAUTY BAR, LLC,
BLUSH & BROW SPA AND SALON LLC,
BROOKE DONNELLY BEAUTY,
BUFFALO MASTER BARBER, LLC,
CELESTIAL BEAUTY BY CIARA,
CHRISTINA FILIPSKI d/b/a BELLUS SALON,
COLOR KARMA, LLC,
FACE FITNESS, LTD., VERIFIED PETITION
FANTASTICS SAMS, LLC, AND COMPLAINT
HOLISTIC SKIN CARE BY JANINE LLC,
HOLLY R. HUTCHINGS d/b/a STUDIO SKIN, Index No.: ____________
JACL, INC. d/b/a THE BELLEZZA SALON,
JAIMELYNN RICHTER d/b/a THE PINK SALON,
JEANNINE CORMIER d/b/a/ STEEL MAGNOLIA STUDIO,
KALU SALON AND DAY SPA, INC.,
KNF/TJF ENTERPRISES, LLC d/b/a RESTORATION SALON
AND SPA,
KONA OASIS, LLC,
LOX SALON, LLC,
MARCIA NORTON,
NORA BARNES d/b/a NORA,
PURE ESSENCE SALON & SPA, INC.,
SALON ELIZABETH LLC,
SALON IN THE TOWER, LLC,
SM AMHERST, LLC,
SM ORCHARD PARK, LLC,
SOUL SPACE SALON & YOGA LLC,
STUDIO C,
STUDIO 13 BEAUTY BAR,
SUSAN D. VOGLER d/b/a THE CORNER SALON,
THREE BAERS, INC. d/b/a FANTASTIC SAMS,
TRANQUIL TOUCH, LLC,
TRANSITIONS SALON, INC.,
TRAVIN OF W.N.Y., INC. d/b/a FANTASTIC SAMS,
WEST END SALON, LLC, and
4059 LOUIS ENTERPRISES, INC. d/b/a PHOENIX, A SALON,

Petitioners,
v.

{H2826203.1} 1
HOGANWILLIG
Attorneys at Law
2410 NORTH FOREST ROAD | SUITE 301 | AMHERST, NEW YORK 14068
Phone: 716.636.7600 | Toll Free: 800.636.5255 | Fax: 716.636.7606 | www.hoganwillig.com
ANDREW M. CUOMO, in his official capacity as the
Governor of the State of New York,
NEW YORK STATE SENATE,
NEW YORK STATE ASSEMBLY,
NEW YORK STATE DEPARTMENT OF ECONOMIC DEVELOPMENT
d/b/a EMPIRE STATE DEVELOPMENT CORPORATION,
NEW YORK STATE DEPARTMENT OF HEALTH,
MARK C. POLONCARZ, in his official capacity as the
County Executive for the County of Erie, and
ERIE COUNTY DEPARTMENT OF HEALTH,

Respondents.
___________________________________________________________

Petitioners ALL DOLLED UP BEAUTY BAR, LLC, AMY MARINO, d/b/a STUDIO A, BEL
VISO SKIN STUDIO, INC., BLINK BEAUTY BAR, LLC, BLUSH & BROW SPA AND SALON
LLC, BROOKE DONNELLY BEAUTY, BUFFALO MASTER BARBER, LLC, CELESTIAL
BEAUTY BY CIARA, CHRISTINA FILIPSKI d/b/a BELLUS SALON, COLOR KARMA LLC,
FACE FITNESS, LTD., FANTASTICS SAMS, LLC, HOLISTIC SKIN CARE BY JANINE LLC,
HOLLY R. HUTCHINGS d/b/a STUDIO SKIN, JACL, INC. d/b/a THE BELLEZZA SALON,
JAIMELYNN RICHTER d/b/a THE PINK SALON, JEANNINE CORMIER d/b/a STEEL
MAGNOLIA STUDIO, KALU SALON AND DAY SPA, INC., KNF/TJF ENTERPRISES, LLC d/b/a
RESTORATION SALON AND SPA, KONA OASIS, LLC, LOX SALON, LLC, MARCIA
NORTON, NORA BARNES d/b/a NORA, PURE ESSENCE SALON & SPA, INC., SALON
ELIZABETH LLC, SALON IN THE TOWER, LLC, SM AMHERST, LLC, SM ORCHARD PARK,
LLC, SOUL SPACE SALON AND YOGA LLC, STUDIO C, STUDIO 13 BEAUTY BAR, SUSAN
D. VOGLER d/b/a THE CORNER SALON, THREE BAERS, INC. d/b/a FANTASTIC SAMS,
TRANQUIL TOUCH, LLC, TRANSITIONS SALON, INC., TRAVIN OF W.N.Y., INC. d/b/a
FANTASTIC SAMS, WEST END SALON, LLC, and 4059 LOUIS ENTERPRISES, INC. d/b/a
PHOENIX, A SALON (“Petitioners”), as and for their Verified Petition and Complaint against
Respondents ANDREW M. CUOMO, in his official capacity as the Governor of the State of New
York, NEW YORK STATE SENATE, NEW YORK STATE ASSEMBLY, NEW YORK STATE
DEPARTMENT OF ECONOMIC DEVELOPMENT d/b/a EMPIRE STATE DEVELOPMENT
CORPORATION, HOWARD A. ZUCKER, M.D., in his official capacity as the Commissioner of
Health for the State of New York, NEW YORK STATE DEPARTMENT OF HEALTH, MARK C.
POLONCARZ, in his official capacity as the County Executive for the County of Erie, GALE R.
BURSTEIN, M.D., M.P.H., in her official capacity as the Commission of Health for the County of
Erie, State of New York, and ERIE COUNTY DEPARTMENT OF HEALTH (“Respondents”),
respectfully allege as follows:

NATURE OF ACTION

1. This is a special proceeding brought under Article 78 of the New York Civil

Practice Law and Rules (“CPLR”), and 42 U.S.C. § 1983, seeking injunctive relief for: (i)

{H2826203.1} 2
HOGANWILLIG
Attorneys at Law
2410 NORTH FOREST ROAD | SUITE 301 | AMHERST, NEW YORK 14068
Phone: 716.636.7600 | Toll Free: 800.636.5255 | Fax: 716.636.7606 | www.hoganwillig.com
violations of Petitioners’ rights under the United States and New York State Constitutions; (ii)

violations of, and facial challenges to the constitutionality of, New York State Executive Law §

29-a; (iii) suspension of Respondent’s government pay for the duration of the COVID-19

pandemic; and (iii) reimbursement of attorneys’ fees, costs, and expenses incurred by Petitioners

in seeking to protect against the violation of their rights.

2. Petitioners’ companion action seeking compensatory damages against New York

State Respondents will be venued in the New York State Court of Claims. This proceeding

before the New York State Supreme Court seeks equitable relief as described elsewhere herein.

3. Respondents, in a disturbing and gross abuse of their power, have, in the name of

the COVID-19 pandemic, attempted to expand their authority by unprecedented lengths, without

any proper constitutional, statutory, or common law basis therefor.

4. Inherent within the actions of Respondents is the flawed justification that an

alleged national emergency suspends the United States and New York State Constitutions.

5. This action challenges Executive Order 202.68, and the associated guidelines,

mandates and/or restrictions, which classify Petitioners as “personal care” businesses, required to

close pursuant to Erie County’s recent designation as an “Orange Zone.” See infra.

6. Petitioners’ services do not present an increased risk of spreading COVID-19, nor

has there ever been any credible proof or data offered of any such claim, whether in the County

of Erie, State of New York, or elsewhere.

7. Petitioners are entitled to a TRO and preliminary injunction, as: (i) Petitioners are

likely to prevail on the merits of their claims; (ii) they will suffer immediate and irreparable harm

if the requested relief is not granted; and (iii) the balance of equities tips in Petitioners’ favor.

{H2826203.1} 3
HOGANWILLIG
Attorneys at Law
2410 NORTH FOREST ROAD | SUITE 301 | AMHERST, NEW YORK 14068
Phone: 716.636.7600 | Toll Free: 800.636.5255 | Fax: 716.636.7606 | www.hoganwillig.com
8. Respondents have engaged in conduct that is arbitrary and capricious, thereby

entitling Petitioners to relief pursuant to Article 78 of the CPLR.

9. Respondents’ arbitrary classifications, i.e., “essential vs non-essential businesses”

and color coding of municipalities by the “cluster zone initiative” into “red zones, orange zones

and yellow zones” are forcing Petitioners to cease their operations, and as stated, violate

Petitioners’ constitutional rights to Due Process and Equal Protection under the Fourteenth

Amendment to the United States Constitution.

10. Petitioners will suffer immediate and irreparable harm if the relief requested is not

granted, as a second temporary closure of their respective businesses under the Cluster Zone

Initiative will eliminate any possibility that most, if not all, of Petitioners will be able to re-open

their respective businesses, resulting in the permanent closure thereof.

11. Petitioners will also be irreparably harmed should their requests for relief be

denied because Petitioners will be compelled to incur further expenses resulting from forced

closure, will be caused to fire or furlough employees, and incur the time and costs of remaining

shutdown, in part. Significantly, Petitioners will suffer an immediate and permanent loss of their

clients and business relationships if caused to remain permanently shut down.

12. The balance of equities also tips in Petitioners’ favor. If permitted to remain open,

while comporting with all social distancing, mask, hygiene, and sanitation guidelines and

mandates, the status quo will be maintained. Petitioners’ personal care industry has always been

one where sanitation is a requirement for maintaining their licenses. Moreover, Petitioners have

always comported with all relevant Executive Orders and associated guidelines.

13. Moreover, there has been no showing that Petitioners’ businesses in any way have

contributed to the spike in COVID-19 cases, nor in the transmission of the disease.

{H2826203.1} 4
HOGANWILLIG
Attorneys at Law
2410 NORTH FOREST ROAD | SUITE 301 | AMHERST, NEW YORK 14068
Phone: 716.636.7600 | Toll Free: 800.636.5255 | Fax: 716.636.7606 | www.hoganwillig.com
14. Respondents will not be harmed because permitting Petitioners to continue their

operations will not increase the risk of spreading, or increasing exposure to, COVID-19 and will,

consequently, not interfere with Respondents’ efforts to contain the virus.

15. Petitioners’ requests for injunctive relief should thus be granted by this Court.

PARTIES

16. At all times relevant hereto, Petitioner ALL DOLLED UP BEAUTY BAR, LLC

was and is a New York limited liability company with its principal office located at 972 Union

Road, West Seneca, New York 14224, wherein it operates a licensed beauty and hair salon.

17. At all times relevant hereto, Petitioner AMY MARINO d/b/a STUDIO A was and

is a sole proprietorship with its principal office located at 4110 Maple Road, Amherst, New York

14226, wherein it operates a licensed beauty and hair salon.

18. At all times relevant hereto, Petitioner BEL VISO SKIN STUDIO, INC. was and

is a New York business corporation with its principal office located at 7158 Transit Road,

Williamsville, New York 14221, wherein it operates a licensed beauty and skincare salon.

19. At all times relevant hereto, Petitioner BLINK BEAUTY BAR was and is a New

York limited liability company with its principal office located at 2934 Delaware Avenue,

Buffalo, New York 14217, wherein it operates a licensed beauty salon.

20. At all times relevant hereto, Petitioner BLUSH & BROW SPA AND SALON,

LLC was and is a New York limited liability company with offices located at 8560 Main Street,

Suite 1, Williamsville, New York 14221, wherein it operates a licensed beauty salon.

21. At all times relevant hereto, Petitioner BROOKE DONNELLY BEAUTY was

and is a sole proprietorship with its principal office located at 109 Michaels Walk, Lancaster,

New York 14086, wherein it operates a licensed beauty salon.

{H2826203.1} 5
HOGANWILLIG
Attorneys at Law
2410 NORTH FOREST ROAD | SUITE 301 | AMHERST, NEW YORK 14068
Phone: 716.636.7600 | Toll Free: 800.636.5255 | Fax: 716.636.7606 | www.hoganwillig.com
22. At all times relevant hereto, Petitioner BUFFALO MASTER BARBER, LLC,

was and is a New York limited liability company with its principal office located at 2844

William Street, Buffalo, New York 14227, wherein it operates a licensed men’s barber shop.

23. At all times relevant hereto, Petitioner CELESTIAL BEAUTY BY CIARA was

and is a sole proprietorship with its principal office located at 2220 Southwestern Boulevard,

Orchard Park, New York 14127, wherein it operates a licensed beauty salon.

24. At all times relevant hereto, Petitioner CHRISTINA FILIPSKI d/b/a BELLUS

SALON was and is a sole proprietorship with its principal office located at 84 Lake Street,

Hamburg, New York 14075, wherein it operates a licensed hair salon.

25. At all times relevant hereto, Petitioner COLOR KARMA, LLC was and is a New

York limited liability company with its principal office located at 192 Central Avenue,

Lancaster, New York 14086, wherein it operates a licensed beauty salon.

26. At all times relevant hereto, Petitioner FACE FITNESS, LTD. was and is a New

York business corporation with its principal office located at 9560 Main Street, Suite 6,

Clarence, New York 14031, wherein it operates a licensed professional skincare salon.

27. At all times relevant hereto, Petitioner FANTASTICS SAMS, LLC was and is a

New York limited liability company with its principal office located at 2355 Bowen Road, Elma,

New York 14059, wherein it operates a licensed hair salon.

28. At all times relevant hereto, Petitioner HOLISTIC SKIN CARE BY JANINE,

LLC was and is a New York limited liability company with offices located at 5505 Main Street,

Williamsville, New York 14221, wherein it operates a licensed skincare salon.

{H2826203.1} 6
HOGANWILLIG
Attorneys at Law
2410 NORTH FOREST ROAD | SUITE 301 | AMHERST, NEW YORK 14068
Phone: 716.636.7600 | Toll Free: 800.636.5255 | Fax: 716.636.7606 | www.hoganwillig.com
29. At all times relevant hereto, Petitioner HOLLY R. HUTCHINGS d/b/a STUDIO

SKIN was and is a sole proprietorship, with its principal office located at 12 South Buffalo

Street, Hamburg, New York 14075, wherein it operates a licensed professional skincare salon.

30. At all times relevant hereto, Petitioner JACL, INC. d/b/a THE BELLEZZA

SALON was and is a New York corporation with its principal office located at 6728 Main Street,

Williamsville, New York 14221, wherein it operates a licensed beauty salon.

31. At all times relevant hereto, Petitioner JAIMELYNN RICHTER d/b/a THE PINK

SALON was and is a sole proprietorship, with its principal office located at 8510 Roll Road,

Clarence Center, New York 14032, wherein it operates a licensed hair salon.

32. At all times relevant hereto, Petitioner JEANNINE CORMIER d/b/a STEEL

MAGNOLIA STUDIO was and is a sole proprietorship with offices located at 6546 New Taylor

Road, Orchard Park, New York 14127, wherein it operates a licensed beauty/hair salon.

33. At all times relevant hereto, Petitioner KALU SALON AND DAY SPA, INC.

was and is a New York corporation with its principal office located at 2874 Niagara Falls

Boulevard, Amherst, New York 14228, wherein it operates a licensed beauty salon and spa.

34. At all times relevant hereto, Petitioner KNF/TJF ENTERPRISES, LLC d/b/a

RESTORATION SALON AND SPA was and is a New York limited liability company with its

principal office located at 425 French Road, Depew, New York 14043, wherein it operates a

licensed beauty salon.

35. At all times relevant hereto, Petitioner KONA OASIS, LLC was and is a New

York limited liability company with its principal office located at 326 Cayuga Road, Buffalo,

New York 14225, wherein it operates a licensed beauty salon.

{H2826203.1} 7
HOGANWILLIG
Attorneys at Law
2410 NORTH FOREST ROAD | SUITE 301 | AMHERST, NEW YORK 14068
Phone: 716.636.7600 | Toll Free: 800.636.5255 | Fax: 716.636.7606 | www.hoganwillig.com
36. At all times relevant hereto, Petitioner LOX SALON, LLC was and is a New

York limited liability company with its principal office located at 4475 Transit Road,

Williamsville, New York 14221, wherein it operates a licensed beauty salon.

37. At all times relevant hereto, Petitioner MARCIA NORTON was and is a sole

proprietorship with its principal office located at 3486 Moyer Road, North Tonawanda New

York 14120, wherein it operates at a licensed beauty salon.

38. At all times relevant hereto, Petitioner NORA BARNES d/b/a NORA was and is a

sole proprietorship with its principal office located at 5500 Main Street, Williamsville, New

York 14221, wherein it operates a licensed hair salon.

39. At all times relevant hereto, Petitioner PURE ESSENCE SALON & SPA, INC.

was and is a New York corporation with its principal office located at 444 Cook Road, East

Aurora, New York 14052, wherein it operates a licensed beauty salon and spa.

40. At all times relevant hereto, Petitioner SALON ELIZABETH LLC was and is a

New York limited liability company with its principal office located at 720 Jamison Road, Elma,

New York 14059, wherein it operates a licensed beauty salon.

41. At all times relevant hereto, Petitioner SALON IN THE TOWER, LLC was and is

a New York limited liability company with offices located at 10225 Main Street, Clarence, New

York 14031, wherein it operates a licensed beauty salon/spa.

42. At all times relevant hereto, Petitioner SM AMHERST, LLC and is a New York

limited liability company with its principal office located at 3316 Sheridan Drive, Amherst, New

York 14226, wherein it operates a licensed beauty and hair salon.

{H2826203.1} 8
HOGANWILLIG
Attorneys at Law
2410 NORTH FOREST ROAD | SUITE 301 | AMHERST, NEW YORK 14068
Phone: 716.636.7600 | Toll Free: 800.636.5255 | Fax: 716.636.7606 | www.hoganwillig.com
43. At all times relevant hereto, Petitioner SM ORCHARD PARK, LLC was and is a

New York limited liability company with offices located at 3455 Amelia Drive, Orchard Park,

New York 14127, wherein it operates a licensed beauty and hair salon.

44. At all times relevant hereto, Petitioner SOUL SPACE SALON & YOGA, LLC

was and is a New York limited liability company with offices located at 4 Centre Drive, Orchard

Park, New York 14127, wherein it operates a licensed spa, salon, and yoga studio.

45. At all times relevant hereto, Petitioner STUDIO C was and is a New York limited

liability company with its principal office located at 1404 Hertel Avenue, Buffalo, New York

14216, wherein it operates a licensed beauty and hair salon.

46. At all times relevant hereto, Petitioner STUDIO 13 BEAUTY BAR was and is a

sole proprietorship with its principal office located at 2220 Southwestern Boulevard, Orchard

Park, New York 14127, wherein it operates a licensed beauty and hair salon.

47. At all times relevant hereto, Petitioner SUSAN D. VOGLER d/b/a THE

CORNER SALON was and is a sole proprietorship, with its principal office located at 147

Cheryl Lane, Depew, New York 14043, wherein it operates a licensed hair salon.

48. At all times relevant hereto, Petitioner THREE BAERS, INC. d/b/a FANTASTIC

SAMS was and is a New York corporation with its principal offices located at 1100

Southwestern Boulevard, West Seneca, New York 14224 and 1330 Niagara Falls Boulevard,

Tonawanda, New York 14150, wherein it operates licensed hair salons.

49. At all times relevant hereto, Petitioner TRANQUIL TOUCH, LLC was and is a

New York limited liability company with its principal office located at 745 Millersport Highway,

Amherst, New York 14226, wherein it operates a licensed beauty, skincare and wellness salon

and/or clinic.

{H2826203.1} 9
HOGANWILLIG
Attorneys at Law
2410 NORTH FOREST ROAD | SUITE 301 | AMHERST, NEW YORK 14068
Phone: 716.636.7600 | Toll Free: 800.636.5255 | Fax: 716.636.7606 | www.hoganwillig.com
50. At all times relevant hereto, Petitioner TRANSITIONS SALON, INC. was and is

a New York corporation with its principal office located at 1834 Maple Road, Williamsville,

New York 14221, wherein it operates a licensed hair salon.

51. At all times relevant hereto, Petitioner TRAVIN OF W.N.Y., INC. d/b/a

FANTASTIC SAMS was and is a New York corporation with its principal office located at 3812

South Park Avenue, Blasdell, New York 14219, wherein it operates a licensed hair salon.

52. At all times relevant hereto, Petitioner WEST END SALON, LLC was and is a

New York limited liability company with its principal office located at 654 Millard Fillmore

Place, East Aurora, New York 14052, wherein it operates a licensed hair salon.

53. At all times relevant hereto, Petitioner 4059 LOUIS ENTERPRISES, INC. d/b/a

PHOENIX, A SALON was and is a New York corporation with its principal office located at

5655 Main Street, Williamsville, New York 14221, wherein it operates a licensed hair salon.

54. Upon information and belief, and at all times relevant hereto, Respondent

ANDREW M. CUOMO (“Respondent Cuomo”) was and is the Governor of the State of New

York, and was and is acting under color of State law and in his official capacity with a principal

place of business is located at the State Capitol Building, Albany, New York 12224.

55. Upon information and belief, and at all times relevant hereto, Respondent NEW

YORK STATE SENATE (“Respondent Senate”) was and is the body that is subject to a

proceeding for constitutional violations pursuant to Ex parte Young, 209 U.S. 123 (1908).

56. Upon information and belief, and at all times relevant hereto, Respondent NEW

YORK STATE ASSEMBLY (“Respondent Assembly”) was and is the body that is subject to a

proceeding for constitutional violations pursuant to Ex parte Young, 209 U.S. 123 (1908).

{H2826203.1} 10
HOGANWILLIG
Attorneys at Law
2410 NORTH FOREST ROAD | SUITE 301 | AMHERST, NEW YORK 14068
Phone: 716.636.7600 | Toll Free: 800.636.5255 | Fax: 716.636.7606 | www.hoganwillig.com
57. Upon information and belief, and at all times relevant hereto, Respondent NEW

YORK STATE DEPARTMENT OF ECONOMIC DEVELOPMENT d/b/a EMPIRE STATE

DEVELOPMENT CORPORATION (“Respondent ESDC”) was and is a division of the New

York State Government responsible for commerce and economic development, with a principal

place of business located at 633 Third Avenue, Floor 37, New York, New York 10017.

58. Upon information and belief, and at all times relevant hereto, Respondent NEW

YORK STATE DEPARTMENT OF HEALTH (“Respondent NYSDOH”) was and is an agency

of the New York State Government with a principal place of business is located at Corning

Tower, Empire State Plaza, Albany, New York 12237.

59. Upon information and belief, and at all times relevant hereto, Respondent MARK

C. POLONCARZ (“Respondent Poloncarz”) was and is the County Executive for the County of

Erie, and was and is acting under color of State law and in his official capacity, with a principal

place of business is located at 95 Franklin Street, Buffalo, New York 14202.

60. Upon information and belief, and at all times relevant hereto, Respondent ERIE

COUNTY DEPARTMENT OF HEALTH (“Respondent ECDOH”) was and is an agency of the

County of Erie, State of New York Government with a principal place of business is located at

95 Franklin Street, Buffalo, New York 14202.

JURISDICTION AND VENUE

61. This Court has jurisdiction over this proceeding under CPLR Articles 63 and 78,

New York State Constitution Article 6, § 7, and the common law of the State of New York.

62. Erie County is a proper venue for this proceeding under CPLR §§ 7804(b) and

506(b) because the material events relevant to this matter took place in Erie County, and because

each of Petitioners’ respective businesses are located within Erie County.

{H2826203.1} 11
HOGANWILLIG
Attorneys at Law
2410 NORTH FOREST ROAD | SUITE 301 | AMHERST, NEW YORK 14068
Phone: 716.636.7600 | Toll Free: 800.636.5255 | Fax: 716.636.7606 | www.hoganwillig.com
STATEMENT OF FACTS

63. Petitioners, representing a broad cross-section of salons, barbershops, and

personal care service providers in the Western New York area, have been severely, profoundly,

and negatively impacted by the coronavirus (“COVID-19”) pandemic, and have, through no fault

of their own, been forced to cease their business operations, as required by the acts of

Respondents.

64. When the COVID-19 pandemic first began, Respondent Cuomo was unilaterally

and unconstitutionally empowered by Respondents Senate and Assembly under New York State

Executive Law § 29-a to issue emergency Executive Orders to address the impending pandemic

vis-à-vis the amendment of Executive Law § 29-a only four (4) days prior to Respondent’s

issuing Executive Order 202 (which declared a State Disaster Emergency in the State of New

York) on March 7, 2020. A true and correct copy of Executive Order 202 is annexed hereto as

Exhibit A.

65. By delegating non-delegable legislative powers to the executive, the legislature

abdicated its key role as a cornerstone of the separation of powers structure and essentially

crowned a monarch who could act without legislative limit.

66. Respondent Cuomo indeed, and thereafter issued a series of Executive Orders

designed to restrict and/or limit many types of activities and gatherings, purportedly to curb the

spread of COVID-19, and to protect the public health, safety, and welfare.

67. There is no question that Respondent Cuomo was well intentioned, but as history

has shown, decisions made without the benefit of legislative debate, committee hearings and the

collective wisdom of the bi-cameral legislature, can result in disaster.1 Exhibit B

1
On March 25, 2020, Respondent Cuomo on his own authority, fearing that elderly COVID victims would
overwhelm hospitals, issued an Order requiring nursing homes to accept COVID-19 patients. This resulted in 6,500
{H2826203.1} 12
HOGANWILLIG
Attorneys at Law
2410 NORTH FOREST ROAD | SUITE 301 | AMHERST, NEW YORK 14068
Phone: 716.636.7600 | Toll Free: 800.636.5255 | Fax: 716.636.7606 | www.hoganwillig.com
68. For example, under Executive Orders 202.5 and 202.6, issued March 18, 2020,

and Executive Order 202.8, issued March 20, 2020, those businesses deemed “non-essential” by

Respondent ESDC, at the direction of Respondent Cuomo, were subjected to in-person

workforce reduction requirements, whereas those businesses deemed “essential” were directed to

utilize “work from home” procedures to the extent possible. True and correct copies of Executive

Orders 202.5, 202.6, and 202.8 are annexed hereto as Exhibit C.

69. Respondent ESDC, at the direction of Respondent Cuomo in Executive Order

202.6, issued guidance to assist in determining whether a business was/is essential (the “ESDC

Guidance”). A true and correct copy of the ESDC Guidance is annexed hereto as Exhibit D.

70. Notably, those businesses categorized as providing “personal care services” were

not deemed to be essential businesses under the ESDC Guidance. See Exhibit D.

71. Instead, under and pursuant to Executive Order 202.7, issued on March 19, 2020,

Respondent Cuomo issued a blanket prohibition on the operation of “barbershops, hair salons,

tattoo or piercing parlors and related personal care services,” stating that (emphasis added):

Effective March 21, 2020 at 8 p.m. and until further notice, all barbershops, hair
salons, tattoo or piercing parlors and related personal care services will be closed
to members of the public. This shall also include nail technicians, cosmetologists
and estheticians, and the provision of electrolysis, laser hair removal services, as
these services cannot be provided while maintaining social distance.

A true and correct copy of Executive Order 202.7 is annexed hereto as Exhibit E.

72. On March 20, 2020, Respondent Cuomo announced his “New York on PAUSE”

Initiative, which, in relevant part, directed that all non-essential businesses state-wide close their

doors effective on March 22, 2020 at 8:00 p.m. A true and correct copy of Respondent Cuomo’s

March 20, 2020 Press Release detailing the New York on PAUSE Initiative is annexed hereto as

deaths in New York nursing homes. That Order has been deleted from the NYS DOH website, but a copy of it is
annexed hereto as Exhibit B.
{H2826203.1} 13
HOGANWILLIG
Attorneys at Law
2410 NORTH FOREST ROAD | SUITE 301 | AMHERST, NEW YORK 14068
Phone: 716.636.7600 | Toll Free: 800.636.5255 | Fax: 716.636.7606 | www.hoganwillig.com
Exhibit F. Notably, the New York on PAUSE Initiative gave those businesses deemed non-

essential, such as Petitioners, only three (3) days’ notice that their businesses were going to

suffer an indefinite (and, needless) closure by order of Respondent Cuomo.

73. It was at this point that Petitioners’ respective businesses were first shut down, for

a span of approximately ten (10) weeks, without any revenue or end in sight; in other words, the

current shutdown of Petitioners’ businesses by Respondents is not the first government-ordered

shutdown Petitioners have suffered since the onset of the COVID-19 crisis.

74. From the time that Respondent Cuomo first declared a State Disaster Emergency

in the State of New York on March 7, 2020, he has issued not less than eighty (80) COVID-19

related Executive Orders, thus demonstrating his willingness to seize the legislative authority

unconstitutionally delegated to him by Respondents Senate and Assembly.

75. In addition to Respondent Cuomo’s Executive Orders, Respondent NYSDOH, at

the direction of Respondent Cuomo, issued emergency regulations, which further codified social

distancing rules and provided the State of New York with enforcement authority to require that

such measures were being taken, which enforcement authority included, but was not limited to,

setting penalties for business found to be in violation of the Executive Orders and Respondent

NYSDOH’s emergency regulations. See 10 N.Y.C.R.R. § 66-3, et seq.

76. On or about April 26, 2020, Respondent Cuomo announced a phased plan to re-

open New York’s businesses, “New York Forward” (the “Re-Opening Plan”) with the re-

opening of certain sectors/industries, and the subsequent loosening of the restrictions

promulgated by Respondent Cuomo, to be considered on a regional basis, as each region of New

York thereafter met the criteria allegedly necessary to protect public health.

{H2826203.1} 14
HOGANWILLIG
Attorneys at Law
2410 NORTH FOREST ROAD | SUITE 301 | AMHERST, NEW YORK 14068
Phone: 716.636.7600 | Toll Free: 800.636.5255 | Fax: 716.636.7606 | www.hoganwillig.com
77. Under the Re-Opening Plan, the counties in the State were grouped into ten (10)

regions,2 and re-opening was to be based upon a review of the conditions in each region.

78. Each of the Petitioner’s respective businesses and their premises are located

within the Western New York Region of the Re-Opening Plan.

79. On June 2, 2020, as a part of the Re-Opening Plan, approximately ten (10) weeks

after Petitioners’ respective businesses were first shut down, Respondent Cuomo issued

Executive Order 202.36, which provided, in relevant part, that (emphasis added):

The directive contained in Executive Order 202.7 . . . requiring all barbershops,


hair salons, tattoo or piercing parlors and related personal care services to be
closed to members of the public is hereby modified to allow for the opening of
barbershops and hair salons, only to the extent and in regions consistent with
Department of Health guidance promulgated for Phase Two industries reopening

A true and correct copy of Executive Order 202.36 is annexed hereto as Exhibit G.

80. The Western New York Region of the Re-Opening Plan entered into Phase 2 of

the Re-Opening Plan on June 2, 2020 – the same day Executive Order 202.36 was issued.

81. Thus, as of June 2, 2020, Petitioners were permitted to re-open their businesses,

as long as they complied with unduly harsh restrictions promulgated by Respondent NYSDOH.

A true and correct copy of the “Interim Guidance for Hair Salons and Barbershops during the

COVID-19 Public Health Emergency” (“Interim Guidance”) is annexed hereto as Exhibit H.

82. For example, under the Interim Guidance, Petitioners were required to implement

measures to reduce contact and congregation on their business’ premises, which measures

included, but were not limited to: (i) limiting workforce/customer presence to no more than fifty

percent (50%) of the maximum occupancy; (ii) ensuring that a distance of at least six (6) feet

was maintained among employees and customers at all times, unless the core activity requires a

2
The ten (10) newly-formed regions were and are the Capital, Central New York, Finger Lakes, Mid-
Hudson, Long Island, Mohawk Valley, North Country, New York City, Southern Tier, and Western New York.
{H2826203.1} 15
HOGANWILLIG
Attorneys at Law
2410 NORTH FOREST ROAD | SUITE 301 | AMHERST, NEW YORK 14068
Phone: 716.636.7600 | Toll Free: 800.636.5255 | Fax: 716.636.7606 | www.hoganwillig.com
shorter distance; (iii) wearing face coverings if within six (6) feet of others; and (iv) limiting in-

person presence to only those staff who are necessary to be on site. See Exhibit H.

83. As the summer continued (and despite the fact that Petitioners had invested

significant resources to ensure compliance with the Interim Guidance, and none of Petitioner’s

businesses had been uncovered as the cause of any positive COVID-19 infection), it became

apparent that Respondent Cuomo was contemplating the issuance of more severe COVID-19

related restrictions, up to and including the possible closure of certain businesses.

84. On October 6, 2020, Respondent Cuomo announced the new “Cluster Action

Initiative” (the “Initiative”) to address COVID-19 “hotspots” that had come to light throughout

the State of New York.

85. The purported intention of the Initiative was to create an approach to control the

spread of COVID-19 from the immediate area in which a “cluster” of cases had originated.

86. The Initiative divided the cluster areas into three (3) categories, each with more

severe restrictions than the last: (i) Red Zone – the cluster itself; (ii) Orange Zone – warning

zone; and (iii) Yellow Zone – precautionary zone. A true and correct copy of Respondent

Cuomo’s October 6, 2020 Press Release detailing the Initiative is annexed hereto as Exhibit I.

87. The Initiative was further detailed in Executive Order 202.68, also issued October

6, 2020, which provided, in relevant part, as follows:

The Department of Health shall determine areas in the State [of New York] that
require enhanced public health restrictions based upon cluster-based cases of
COVID-19 at a level that compromises the State’s containment of the virus.
Certain activities shall be restricted and any permitted activities, in all three zones
below, shall be conducted in strict adherence to Department of Health guidance.

A true and correct copy of Executive Order 202.68 is annexed hereto as Exhibit J.

{H2826203.1} 16
HOGANWILLIG
Attorneys at Law
2410 NORTH FOREST ROAD | SUITE 301 | AMHERST, NEW YORK 14068
Phone: 716.636.7600 | Toll Free: 800.636.5255 | Fax: 716.636.7606 | www.hoganwillig.com
88. Executive Order 202.68 further provided as follows, with respect to the activities

allowable in each of the Red, Orange, and Yellow Zones (emphasis added) (See Exhibit J):

Based upon the severity of the cluster activity, the Department of Health shall
adopt in the most severe, or “red zones,” the following mitigation measures:

Non-essential gatherings of any size shall be postponed or cancelled; [and] all


non-essential businesses, as determined by [Respondent ESDC] based upon
published guidance, shall reduce in-person workforce by 100%[.]

In moderate severity warning areas or “orange zones” the following . . . measures:

Non-essential gatherings shall be limited to 10 people; [and] certain non-essential


businesses, for which there is a higher risk associated with the transmission of the
COVID-19 virus, including gyms, fitness centers or classes, barbers, hair salons,
spas, tattoo or piercing parlors, nail technicians and nail salons, cosmetologists,
estheticians, the provision of laser hair removal and electrolysis, and all other
personal care services shall reduce in-person workforce by 100%[.]

In precautionary or “yellow zones,” the following mitigation measures:

Non-essential gatherings shall be limited to no more than 25 people; houses of


worship shall be subject to a capacity limit of 50% of its maximum occupancy
and shall adhere to Department of Health guidance; any restaurant or tavern must
limit any one seated group or party size to 4 people; and the Department of Health
shall issue guidance by October 9, 2020 regarding mandatory testing of students
and school personnel, and schools shall adhere to such guidance.

89. In effect, if any of Petitioners’ businesses were located in a Yellow Zone, they

would be permitted to continue operating in accordance with the Interim Guidance. However, if

Respondent Cuomo saw fit to advance certain areas into an Orange (or Red) Zone, each of the

Petitioners would be required to close their businesses until further notice. See Exhibit J.

90. On November 9, 2020, Respondent Cuomo announced that the 7-day rolling

average positivity rate in Erie County had surged above 2.5%, and that, as a result, parts of Erie

County would be accelerated into a Yellow Zone under the Initiative. A true and correct copy of

Respondent Cuomo’s November 9, 2020 Press Release is annexed hereto as Exhibit K.

{H2826203.1} 17
HOGANWILLIG
Attorneys at Law
2410 NORTH FOREST ROAD | SUITE 301 | AMHERST, NEW YORK 14068
Phone: 716.636.7600 | Toll Free: 800.636.5255 | Fax: 716.636.7606 | www.hoganwillig.com
91. On November 18, 2020, Respondent Cuomo thereafter announced that parts of

the Erie County Yellow Zone “[met] the metrics to transition to an Orange Warning Zone,” and

that the “previous Yellow Zone [was] expanded to include new parts of Erie County seeing

upticks in new cases, positivity, and hospital admissions.” A true and correct copy of Governor

Cuomo’s November 18, 2020 Press Release is annexed hereto as Exhibit L.

92. At this point, Petitioners were therefore required to shut down their businesses,

despite the fact that Petitioners had invested significant resources to ensure compliance with the

Interim Guidance (and had been so complying), and none of Petitioner’s businesses had been

uncovered as the cause of any positive COVID-19 infection.

93. Petitioners were arbitrarily instructed by Respondents, via Respondent Cuomo’s

November 18, 2020 Press Release (Exhibit L), to immediately cease the operation of their

businesses as of November 18, 2020, despite the fact that there was no scientific or otherwise

credible evidence upon which to impose such shutdowns, nor to link any increase in COVID-19

cases (or any cases at all, for that matter) to the operation of Petitioners’ businesses.

94. This second round of shutdowns (occurring from November 18, 2020 up through

and including the date of this Verified Petition and Complaint) is now the second time that

Petitioners have been forced to shut down their respective businesses; as explained above,

Petitioners were previously required to shut down their businesses from March 21, 2020 through

June 2, 2020, the date the Western New York entered Phase 2 of the Re-Opening Plan.

95. As set forth in the Affidavits of each of the respective owners of Petitioners, true

and correct copies of which are submitted to this Court herewith, the first round of shut downs

from March 21, 2020 through June 2, 2020 caused irreparable harm to Petitioners by not only

{H2826203.1} 18
HOGANWILLIG
Attorneys at Law
2410 NORTH FOREST ROAD | SUITE 301 | AMHERST, NEW YORK 14068
Phone: 716.636.7600 | Toll Free: 800.636.5255 | Fax: 716.636.7606 | www.hoganwillig.com
closing off the businesses’ only source of income, but also imposing the threat of permanent

closure of such businesses.

96. What makes this second round of business closures particularly egregious is not

only that Petitioners will almost certainly suffer permanent closure of such businesses with these

closures, but also that, this time, Petitioners were complying with all of the restrictions

promulgated by Respondent NYSDOH at the time Erie County moved into an Orange Zone, and

there is no evidence upon which to impose such shutdowns, nor to link any increase in COVID-

19 cases (or any cases at all, for that matter) to the operation of Petitioners’ businesses.

97. In other words, Petitioners are now arbitrarily being forced to shut down their

businesses, at great personal and financial risk to Petitioners, for no reason other than that

Respondents feel that such businesses may contribute to an increase in COVID-19 cases.

98. The actions of Respondents in shuttering Petitioners’ businesses are thus not only

arbitrary and capricious, but are also in direct and explicit violation of Petitioners’ constitutional

rights under the United States and New York State Constitutions, as well as in violation of the

separation of powers doctrine of the New York State Constitution. See N.Y. Const., art. III, sec.

1; N.Y. Const., art. IV, sec. 1; see also Saratoga County Chamber of Commerce, Inc. v. Pataki,

100 N.Y.2d 801, 821-822 (2003) (“[T]h[is] separation of powers requires that the Legislature

make the critical policy decisions, while the executive branch's responsibility is to implement

those policies.”) (internal citations omitted).

99. Petitioners in this action are owned by individuals, by citizens of the State of New

York, who have, in some instances, invested their life savings and their financial futures in their

businesses, that they have worked to build up over years, only to have that investment decimated

{H2826203.1} 19
HOGANWILLIG
Attorneys at Law
2410 NORTH FOREST ROAD | SUITE 301 | AMHERST, NEW YORK 14068
Phone: 716.636.7600 | Toll Free: 800.636.5255 | Fax: 716.636.7606 | www.hoganwillig.com
by Executive Orders issued by one man, from one office, and without the benefit of committee

votes and debates and the collective wisdom of Respondents Senate and Assembly.

100. Respondent Cuomo’s Executive Orders, which purport to have the force and

effect of law under Executive Law § 29-a, are vague, inconsistent, and contradictory, and have

resulted in the complete shutdown of Petitioners’ businesses, despite the fact that there is no

scientific or otherwise credible evidence upon which to impose such shutdowns, nor to link any

increase in COVID-19 cases (or any cases at all) to the operation of Petitioners’ businesses.

101. Never before has there been such an intrusion upon the constitutional rights of the

citizens and businesses of the State of New York, and certainly not such a coordinated intrusion

by such a broad swath of State actors such as Respondents.

102. Had Respondents not issued and implemented the Initiative, which arbitrarily

closed Petitioners’ businesses, Petitioners would have continued to comply with the Interim

Guidance previously promulgated by Respondent NYSDOH.

103. The Honorable Justice Neil Gorsuch underscored the arbitrariness of Respondent

Cuomo’s Executive Orders, directives, and associated guidance (including, but not limited to, the

Initiative) in his concurring opinion in Roman Catholic Diocese of Brooklyn v. Cuomo, ___ S.Ct.

___, 2020 U.S. LEXIS 5708 (2020) (emphasis in original):

At the same time, the Governor has chosen to impose no capacity restrictions on
certain businesses he considers “essential.” And it turns out the businesses the
Governor considers essential include hardware stores, acupuncturists, and liquor
stores. Bicycle repair shops, certain signage companies, accountants, lawyers, and
insurance agents are essential too. So, at least according to the Governor, it may be
unsafe to go to church, but it is always fine to pick up another bottle of wine, shop
for a new bike, or spend the afternoon exploring your distal points and meridians.
Who knew public health would so perfectly align with secular convenience?

104. It is exactly this type of social convenience on the part of Respondent Cuomo,

vis-à-vis his unnecessary and arbitrary Initiative, that Petitioners challenge in this proceeding.

{H2826203.1} 20
HOGANWILLIG
Attorneys at Law
2410 NORTH FOREST ROAD | SUITE 301 | AMHERST, NEW YORK 14068
Phone: 716.636.7600 | Toll Free: 800.636.5255 | Fax: 716.636.7606 | www.hoganwillig.com
105. Further demonstrating the arbitrary and capricious nature of Executive Order

202.68 and the Initiative, Respondent Cuomo, in his December 7, 2020 press conference, stated

that personal care services, such as salons, are “not major spreaders.”

106. Respondent Cuomo went on to state that: “[S]alons[,] on the numbers, we have so

many protocols on the . . . salons, they are not major spreaders on the numbers.”3

107. Despite Respondent Cuomo’s foregoing description of personal care service

businesses, such as those owned and operated by Petitioners, as “not [being] major spreaders” of

COVID-19, the restrictions in Executive Order 202.68 and the Initiative remain in place.

108. While Respondent Cuomo, and those in concert with him who act to enforce such

arbitrary, capricious, and discriminatory measures, are directing Petitioners to keep their

businesses shut down, each of the Respondents have continued to collect their weekly or bi-

weekly paychecks. In fact, throughout the COVID-19 pandemic, Respondent Cuomo has seen

his own salary increased exponentially, while many of his constituents fold, whether physically,

mentally, or emotionally, under the iron hand of Respondent Cuomo’s government rule.

109. The only way that Respondent Cuomo, and the other Respondents herein, could

fully understand the severity and weight of the hardship now facing Petitioners would be for

each of the Respondents to have their government pay suspended until the COVID-19 pandemic

has subsided, which is exactly the relief being sought, in part, by Petitioners herein.

AS AND FOR A FIRST CAUSE OF ACTION


PURSUANT TO CPLR ARTICLE 78

110. Petitioners repeat and reallege each and every allegation in the preceding

paragraphs of this Verified Petition and Complaint, as if fully set forth herein.

111. Petitioners have commenced this proceeding pursuant to CPLR § 7803.

3
https://www.wgrz.com/article/news/health/coronavirus/cuomo-gyms-salons-are-not-major-spreaders-of-
covid-19/71-d5edf118-5e9d-45de-ba6a-8093e848900a.
{H2826203.1} 21
HOGANWILLIG
Attorneys at Law
2410 NORTH FOREST ROAD | SUITE 301 | AMHERST, NEW YORK 14068
Phone: 716.636.7600 | Toll Free: 800.636.5255 | Fax: 716.636.7606 | www.hoganwillig.com
112. Respondent Cuomo’s Initiative has arbitrarily forced Petitioners to close their

respective businesses, and is without sound basis in reason, logic, law, or fact, particularly given

that Respondents have offered no scientific or otherwise credible evidence upon which to impose

such shutdowns, nor to link any increase in COVID-19 cases to the operation of Petitioners’

businesses, which is their burden in the instant proceeding.

113. The actions of Respondents in shuttering Petitioners’ businesses are arbitrary and

capricious within the meaning of Article 78, and Respondents should be enjoined from enforcing

such determinations as against Petitioners.

114. Petitioners will be irreparably harmed should their requests for relief be denied by

this Court, because the “temporary” shutdowns imposed under the Initiative will, for most or all

of Petitioners, result in the permanent closure of their respective businesses. Petitioners will also

be compelled to incur further expenses resulting from forced closure, will be caused to fire or

furlough employees, and will incur the time and costs of remaining shutdown.

115. Accordingly, Petitioners’ application for a TRO and preliminary injunction should

be granted, given the arbitrary and capricious nature of Respondent Cuomo’s Initiative.

AS AND FOR A SECOND CAUSE OF ACTION


DECLARING EXECUTIVE LAW § 29-a TO BE UNCONSTITUTIONAL

116. Petitioners repeat and reallege each and every allegation in the preceding

paragraphs of this Verified Petition and Complaint, as if fully set forth herein.

117. Pursuant to the doctrine of nondelegation, implicit in all written constitutions, one

branch of government must not authorize another branch of government to exercise the power or

function which it is constitutionally authorized to exercise itself.

118. The New York State Constitution provides for a complete distribution and

separation of powers among the three “co-ordinate and co[-]equal branches” of government.

{H2826203.1} 22
HOGANWILLIG
Attorneys at Law
2410 NORTH FOREST ROAD | SUITE 301 | AMHERST, NEW YORK 14068
Phone: 716.636.7600 | Toll Free: 800.636.5255 | Fax: 716.636.7606 | www.hoganwillig.com
County of Oneida v. Berle, 49 N.Y.2d 515, 522 (1980); see also LaGuardia v. Smith, 288 N.Y. 1,

5-6 (1942); N.Y. Const., art. III, sec. 1; art. IV, sec. 1; and art. VI.

119. To wit, Article III, Section 1 of the New York State Constitution provides that

“[t]he legislative power of this state shall be vested in the [S]enate and [A]ssembly,” whereas

Article IV, Section 1, of the New York State Constitution provides that: “The executive power

shall be vested in the [G]overnor[.]” N.Y. Const., art. III, sec. 1; N.Y. Const., art. IV, sec. 1.

120. “[T]h[is] separation of powers ‘requires that the Legislature make the critical

policy decisions, while the executive branch's responsibility is to implement those policies.’”

Saratoga County Chamber of Commerce, Inc. v. Pataki, 100 N.Y.2d 801, 821-822 (2003) (citing

Bourquin v. Cuomo, 85 N.Y.2d 781, 784 (1995)). Moreover, as the New York Court of Appeals

has noted: “[A] foundation of free government is imperiled when any one of the coordinate

branches . . . interferes with another.” County of Oneida, 49 N.Y.2d at 522.

121. “It is the proud boast of our democracy that we have a ‘government of laws, and

not of men.’” Morrison v Olson, 487 US 654, 697, (1988) (Scalia, J., dissenting). “The Framers

of the Federal Constitution…viewed the principle of separation of powers as the absolutely

central guarantee of a just Government.” Id. “Without a secure structure of separated powers,

our Bill of Rights would be worthless, as are the bills of rights of many nations of the world that

have adopted, or even improved upon, the mere words of ours.” Id. “The purpose of the

separation and equilibration of powers in general . . . was not merely to assure effective

government but to preserve individual freedom.” Id at 727.

122. Notably, nowhere in the New York State Constitution is Respondent Cuomo,

given or delegated any legislative authority; rather, Article IV, Section 3 of the New York State

{H2826203.1} 23
HOGANWILLIG
Attorneys at Law
2410 NORTH FOREST ROAD | SUITE 301 | AMHERST, NEW YORK 14068
Phone: 716.636.7600 | Toll Free: 800.636.5255 | Fax: 716.636.7606 | www.hoganwillig.com
Constitution provides, in relevant part: “The [G]overnor shall have power to convene the

[L]egislature, or the [S]enate only, on extraordinary occasions.” N.Y. Const., art. IV, sec. 3.

123. As a basis for his authority to issue Executive Orders responsive to COVID-19,

Respondent Cuomo expressly cites to Executive Law § 29-a.

124. Executive Law § 29-a purports to grant Respondent Cuomo legislative authority

vis-à-vis his claimed authority to issue Executive Orders in response to the COVID-19 pandemic

having the full force and effect of law.

125. The provisions of Executive Law § 29-a unlawfully broadened Respondent

Cuomo’s authority to act during official state disasters beyond the COVID-19 crisis.

126. Respondent Cuomo’s extraordinary use of executive authority is shown by his

issuance of not less than eighty (80) COVID-19 related Executive Orders to date, and hundreds

of sweeping changes to various State laws.

127. As the COVID-19 pandemic continues, Respondent Cuomo continues to wield his

executive powers derived from the acquiescence of a complicit legislature.

128. Notwithstanding the above, Executive Law § 29-a provides that this authority is

“[s]ubject to the state constitution, the federal constitution and federal statutes and regulations”;

it does not require Respondent Cuomo to obtain legislative approval prior to declaring a State

Disaster Emergency, nor does it authorize the Legislature to limit or revoke Respondent

Cuomo’s authority to so issue such Executive Orders.

129. In fact, Executive Law § 29-a(2)(a) provides that: “no suspension or directive

shall be made for a period in excess of thirty days, provided, however, that upon reconsideration

of all of the relevant facts and circumstances, the [G]overnor may extend the suspension for

additional periods not to exceed thirty days each.” Executive Law § 29-a(2)(a).

{H2826203.1} 24
HOGANWILLIG
Attorneys at Law
2410 NORTH FOREST ROAD | SUITE 301 | AMHERST, NEW YORK 14068
Phone: 716.636.7600 | Toll Free: 800.636.5255 | Fax: 716.636.7606 | www.hoganwillig.com
130. Executive Law § 29-a effectively gives Respondent Cuomo the unlimited ability

to issue Executive Orders having the full force and effect of law, and Respondent Cuomo has so

taken and utilized this statutory authority to impose unconstitutional restrictions on the citizens

and businesses located within, and even without, the State of New York.

131. Under the guise of Executive Law § 29-a, the New York State Legislature has

unconstitutionally delegated its legislative authority to Respondent Cuomo, particularly given

that, just four (4) days before issuing Executive Order 202 through which Respondent Cuomo

declared a State Disaster Emergency in the State of New York State, the New York State

Legislature passed a bill at Respondent Cuomo’s request, which Respondent Cuomo then signed

into law, to expand Respondent Cuomo’s emergency management power and authority.

132. Executive Law § 29-a is in direct violation of the separation of powers doctrine,

as the New York State Constitution vests sole legislative authority in the New York State

Legislature, and is therefore facially and substantively unconstitutional.

133. Under the Supreme Court’s functional test for determining the applicability of

absolute legislative immunity, “whether immunity attaches turns not on the official's identity, or

even on the official's motive or intent, but on the nature of the act in question.” Almonte v. City

of Long Beach, 478 F.3d 100, 106 (2d Cir. 2007); see also Harhay v. Town of Ellington Bd. of

Educ., 323 F.3d 206, 210 (2d Cir. 2003) (citing Bogan v. Scott-Harris, 523 U.S. 44, 54 (1998)).

In particular, “[a]bsolute legislative immunity attaches to all actions taken ‘in the sphere of

legitimate legislative activity.’” Bogan, 523 U.S. at 54.

134. A defendant’s/respondent’s entitlement to legislative immunity does not depend

solely on whether the defendant's acts giving rise to the alleged violation were “taken in the

sphere of legitimate legislative activity.” State Emples. Bargaining Agent Coalition, 494 F.3d at

{H2826203.1} 25
HOGANWILLIG
Attorneys at Law
2410 NORTH FOREST ROAD | SUITE 301 | AMHERST, NEW YORK 14068
Phone: 716.636.7600 | Toll Free: 800.636.5255 | Fax: 716.636.7606 | www.hoganwillig.com
88 (citing Bogan, 523 U.S. at 54). Instead, in considering whether the doctrine of legislative

immunity is available to foreclose claims for injunctive relief in official-capacity suits, the Court

must also look more specifically to whether granting the particular relief sought by Petitioners

would enjoin defendants in their legislative capacities. Id. (emphasis added).

135. Thus, before Respondents can invoke legislative immunity to defeat Petitioners’

claims for relief, Respondents must show both that: (i) the acts giving rise to the harm alleged in

the Complaint were undertaken when defendants were acting in their legislative capacities; and

(ii) the particular relief sought would enjoin Respondent in their legislative capacities, and not in

some other capacity in which they would not be entitled to legislative immunity. Id. at 89.

136. The relief being sought by Petitioners in this matter is declaratory and injunctive

in nature; specifically, Petitioners are seeking a declaration of this Court providing Executive

Law § 29-a to be facially and substantively unconstitutional, as an unconstitutional delegation of

legislative power to Respondent Cuomo by Respondents Senate and Assembly.

137. If this Court were to grant Petitioners’ requested relief, Respondents Senate and

Assembly surely would not be “enjoin[ed] in their legislative capacities,” thereby defeating the

second of Respondents Senate’s and Assembly’s requirements to invoke legislative immunity.

State Emples. Bargaining Agent Coalition, 494 F.3d at 89.

138. To be clear, this Court’s grant of Petitioners’ request for the above relief would

have effectively no impact upon Respondents Senate and Assembly moving forward; to the

contrary, the only impact such declaratory and injunctive relief, if granted, would have, would be

to invalidate the scope and breath of Respondent Cuomo’s Executive Orders, as interpreted,

expanded upon, and enforced by Respondent James.

{H2826203.1} 26
HOGANWILLIG
Attorneys at Law
2410 NORTH FOREST ROAD | SUITE 301 | AMHERST, NEW YORK 14068
Phone: 716.636.7600 | Toll Free: 800.636.5255 | Fax: 716.636.7606 | www.hoganwillig.com
139. It may, however, serve as a reminder by the Judicial branch of government to the

legislative branch that its authorities are non-delegable and that a crisis does not empower the

legislature to abandon the state and federal Constitutions.

140. By reason of the foregoing, any attempted invocation by Respondent of their

legislative immunity would be improper, baseless, and legally defective, as this Court’s grant of

the requested declaratory and injunctive relief would not enjoin Respondents in their legislative

capacities, to the extent that Respondents did act, or have been acting, in such capacities.

141. Accordingly, Petitioners further seek a declaration providing Executive Law § 29-

a to be facially and substantively unconstitutional, as an unconstitutional delegation of legislative

power to Respondent Cuomo by Respondents Senate and Assembly.

AS AND FOR A THIRD CAUSE OF ACTION


RESPONDENTS’ VIOLATION OF EXECUTIVE LAW § 29-a

142. Petitioners repeat and reallege each and every allegation in the preceding

paragraphs of this Verified Petition and Complaint, as if fully set forth herein.

143. Executive Law § 29-a(1) grants Respondent Cuomo the authority, by the issuance

of Executive Order(s), to (emphasis added):

[T]emporarily suspend any statute, local law, ordinance, or orders, rules or


regulations, . . . of any agency during a state disaster emergency, if compliance
with such provisions would prevent, hinder, or delay action necessary to cope
with the disaster or if necessary to assist or aid in coping with such disaster.

144. Executive Law § 29-a(2) also provides, in relevant part (emphasis added):

Suspensions shall be subject to the following . . . limits[:] . . . no suspension or


directive shall be made which is not in the interest of the health or welfare of the
public and which is not reasonably necessary to aid the disaster effort; [and] . . .
any such suspension, order or directive shall provide for the minimum deviation
from the requirements of the statute, local law, ordinance, order, rule or regulation
suspended consistent with the goals of the disaster action deemed necessary[.]

{H2826203.1} 27
HOGANWILLIG
Attorneys at Law
2410 NORTH FOREST ROAD | SUITE 301 | AMHERST, NEW YORK 14068
Phone: 716.636.7600 | Toll Free: 800.636.5255 | Fax: 716.636.7606 | www.hoganwillig.com
145. Executive Law § 29-a thus purports to grant Respondent Cuomo, by the issuance

of Executive Orders, emergency powers so as to suspend certain laws, and so as issue certain

directives, when a State Disaster Emergency has been declared.

146. Although Executive Law § 29-a confers certain powers upon Respondent Cuomo

(assuming, arguendo, it is constitutional), it also imposes certain restrictions upon him; namely,

that actions taken pursuant to his authority thereunder be “reasonably necessary to aid in the

disaster effort,” and that such actions provide for the “minimum deviation” from the suspended

statute, law, etc., while remaining consistent with the goals of the disaster action.

147. The actions of Respondents in shuttering Petitioners’ businesses via the Executive

Orders, including Executive Order 202.68 and the Initiative, are neither reasonably necessary to

combat COVID-19, nor the minimum deviation from any suspended statute, law, etc., such that

Respondents’ actions remain consistent with the goals of the COVID-19 response.

148. Put differently, neither the uniqueness nor the severity of the COVID-19 crisis

justifies the uneven and draconian measures taken by Respondent Cuomo in response thereto.

149. In fact, there is an irony in the State of New York and Respondent Cuomo

justifying Respondent Cuomo’s restrictions on the “uniqueness” of the COVID-19 pandemic,

when it is the restrictions themselves that make the COVID-19 pandemic so unique.

150. Respondent Cuomo has, to date, issued not less than eighty (80) Executive Orders

since initially declaring a State Disaster Emergency on March 7, 2020.

151. Respondents’ actions in issuing the Executive Orders, and in thereafter issuing

purportedly clarifying guidance and/or attempting to enforce the same, were neither reasonably

necessary, nor the minimum deviation from any suspended statute, law, etc., so as to allow the

State of New York to do its part in combatting the COVID-19 pandemic.

{H2826203.1} 28
HOGANWILLIG
Attorneys at Law
2410 NORTH FOREST ROAD | SUITE 301 | AMHERST, NEW YORK 14068
Phone: 716.636.7600 | Toll Free: 800.636.5255 | Fax: 716.636.7606 | www.hoganwillig.com
152. The severe, arbitrary, and unreasonable restrictions placed upon Petitioners via

Executive Order 202.68 and the Initiative have not been revised to reduce the strain thereof (the

closure of Petitioners’ businesses), and moreover, no attempt has been made by Respondents to

advise Petitioners when such restrictions may be lifted, or at the very least lessened. In fact,

Petitioners have been forced to close their businesses under the looming threat of a “Red Zone,”

which implements even more stringent restrictions than those of the “Orange Zone.”

153. The United States and New York State Constitutions place the burden upon the

government to justify its actions, not on the citizenry to wait out its deprivations; this is the

method devised to ensure that laws are cloaked with good faith and founded in rational purpose.

154. In the normal course, the State may police the marginal details of its sphere so

long as its regulations are related to a legitimate government interest. However, when the State

enacts laws that burden fundamental rights, not only must the laws promote a compelling

government interest; they must do so in the manner least burdensome to those rights.

155. In addition, Petitioners have already to extraordinary measures to ensure a clean

work environment for their employees, customers, clientele, and the like; specifically, at the time

Erie County was given the Orange Zone designation by Respondent Cuomo, Petitioners were

complying with all of the restrictions promulgated by Respondent NYSDOH.

156. The failure to narrowly tailor the restrictions imposed in the Executive Orders and

Initiative has also caused significant economic and societal harm without sufficient evidence

showing that any of the restrictions on businesses, and particularly those which are applicable to

Petitioner, have helped to “flatten the curve”; indeed, Respondents have offered no scientific or

otherwise credible evidence upon which to impose such shutdowns, nor to link any increase in

COVID-19 cases (or any cases at all ) to the operation of Petitioners’ businesses.

{H2826203.1} 29
HOGANWILLIG
Attorneys at Law
2410 NORTH FOREST ROAD | SUITE 301 | AMHERST, NEW YORK 14068
Phone: 716.636.7600 | Toll Free: 800.636.5255 | Fax: 716.636.7606 | www.hoganwillig.com
157. By reason of the foregoing, Respondent Cuomo has far exceeded his executive

authority under Executive Law § 29-a, whether this claim is considered under the tiered levels of

constitutional scrutiny, or even under the decidedly deferring standards set forth by the Supreme

Court in Jacobson v. Massachusetts, 197 U.S. 11 (1905).

158. Accordingly, Petitioners seek a declaration of this Court providing that

Respondent Cuomo’s actions exceed the scope of his powers under State Executive Law § 29-a,

to the extent the Executive Law is not found by this Court to be unconstitutional.

AS AND FOR A FOURTH CAUSE OF ACTION


RESPONDENTS’ VIOLATION OF THE 5th AMENDMENT – TAKINGS\

159. Petitioners repeat and reallege each and every allegation in the preceding

paragraphs of this Verified Petition and Complaint, as if fully set forth herein.

160. “[T]he Fifth Amendment’s guarantee that private property shall not be taken for a

public use without just compensation was designed to bar Government from forcing some people

alone to bear public burdens which, in all fairness and justice, should be borne by the public as a

whole.” Armstrong v. United States, 364 U.S. 40, 49 (1960).

161. The Supreme Court has “recognized that government regulation of private

property may . . . be so onerous that its effect is tantamount to a direct appropriation or ouster . . .

and that such ‘regulatory takings’ may be compensable under the Fifth Amendment.” Lingle v.

Chevron, 544 U.S. 528, 537 (2005).

162. “The general rule at least is that while property may be regulated to a certain

extent, if regulation goes too far it will be recognized as a taking.” Pennsylvania Coal Co. v.

Mahon, 260 U.S. 393, 415-16 (1922).

{H2826203.1} 30
HOGANWILLIG
Attorneys at Law
2410 NORTH FOREST ROAD | SUITE 301 | AMHERST, NEW YORK 14068
Phone: 716.636.7600 | Toll Free: 800.636.5255 | Fax: 716.636.7606 | www.hoganwillig.com
163. Petitioners each had, and continue to have, a protected liberty interest in their

right to operate amid the COVID-19 pandemic without arbitrary governmental interference, and

in their fundamental property right to use and enjoy the land in which they hold a recognized

interest. See MFS, Inc. v. DiLazaro, 771 F. Supp. 2d 382, 440-41 (E.D. Pa. 2011) (citing

DeBlasio v. Zoning Bd. of Adjustment for Twp. of W. Amwell, 53 F.3d 592, 600 (3d Cir. 1995)).

164. Petitioners have now been called upon to sacrifice all beneficial use of their

property in the name of public health; that is, to leave their properties economically and

otherwise idle, or to suffer severe fines, criminal penalties, and/or the revocation of Petitioners’

liquor licenses should Petitioners fail to comply. For this, Petitioners have suffered a taking.

165. Respondents have seized, without just compensation, the property of Petitioners,

and others similarly situated across the State of New York, by forcing the closure or limitation of

specified businesses and restricting travel and free association via the Executive Orders.

166. Respondent Cuomo’s Executive Orders, as interpreted, expanded upon, and

enforced by the other Respondents, have resulted, and continue to result in, an unconstitutional

taking in contravention of the Fifth Amendment, and have adversely impacted Petitioners’ use of

their property, such that, at least temporarily, the Executive Orders have substantially diminished

the economically beneficial and profitable use of said property.

167. Respondent Cuomo’s Executive Orders have rendered useless Petitioners’

property from its economic benefit during the COVID-19 pandemic, which loss categorically

constitutes a taking. See Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1019 (1992).

168. These uncompensated seizures violate the Takings Clause of the Fifth

Amendment, made applicable to States through the Fourteenth Amendment. Without extending

{H2826203.1} 31
HOGANWILLIG
Attorneys at Law
2410 NORTH FOREST ROAD | SUITE 301 | AMHERST, NEW YORK 14068
Phone: 716.636.7600 | Toll Free: 800.636.5255 | Fax: 716.636.7606 | www.hoganwillig.com
“just compensation” to Petitioners, the Respondents have jeopardized the sustainability of these

business and the rights of the owners with respect to their property interests.

169. In the alternative, under the framework articulated by the Supreme Court in Penn

Central Transportation Co. v. City of New York, 438 US 104 (1978), Respondent Cuomo’s

Executive Orders, as interpreted, expanded upon, and enforced by the other named Respondents,

constitute a taking based upon “the magnitude of [their] economic impact and the degree to

which [they] interfere[] with legitimate property interests.” Lingle, 544 U.S. at 540.

170. The Supreme Court, in Penn Central, set forth the framework for assessing

whether government action is considered a regulatory taking, identifying “[three] factors that

have particular significance,” including: (1) “[t]he economic impact of the regulation on the

claimant”; (2) “the extent to which the regulation has interfered with distinct investment-backed

expectations”; and (3) “the character of the governmental action.” Penn Central Transp. Co. v.

City of New York, 438 U.S. 104, 124 (1978).

171. Even if the regulation falls short of eliminating all economically beneficial use of

the property, a taking nonetheless has occurred. Palazzolo v. R.I., 533 U.S. 606, 617 (2001).

172. Respondent Cuomo’s Executive Orders, as interpreted, expanded upon, and

enforced by others, including the other named Respondents, constitute a regulatory taking

implemented for a public purpose, and thus, the failure to pay just compensation contravenes the

Takings Clause of the Fifth Amendment. Coalition for Gov't Procurement v. Fed. Prison Indus.,

365 F.3d 435, 478 (6th Cir. 2004); see also Horne v. Dep't of Agric., 576 U.S. 350 (2015)

(“Nothing in the text or history of the Takings Clause . . . suggests that the rule is any different

when it comes to appropriation of personal property. The Government has a categorical duty to

pay just compensation when it takes your car, just as when it takes your home.”).

{H2826203.1} 32
HOGANWILLIG
Attorneys at Law
2410 NORTH FOREST ROAD | SUITE 301 | AMHERST, NEW YORK 14068
Phone: 716.636.7600 | Toll Free: 800.636.5255 | Fax: 716.636.7606 | www.hoganwillig.com
173. Accordingly, Petitioners seek a declaration that the issuance of Respondent

Cuomo’s Executive Orders, particularly Executive Order 202.68, constitutes an unconstitutional

taking without just compensation under the Takings Clause, a permanent injunction enjoining

Respondents from enforcing the arbitrary and capricious restrictions against Petitioners in

violation of Petitioners’ rights, and compensatory damages adequate to justly compensate

Petitioners for the regulatory taking of their property.

AS AND FOR A FIFTH CAUSE OF ACTION


VIOLATION OF THE 14th AMENDMENT – EQUAL PROTECTION

174. Petitioners repeat and reallege each and every allegation in the preceding

paragraphs of this Verified Petition and Complaint, as if fully set forth herein.

175. The Equal Protection Clause of the Fourteenth Amendment to the United States

Constitution (“Equal Protection Clause”) provides, in part: “[N]or shall any state . . . deny to any

person within its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV.

176. At its core, the Equal Protection Clause functions as a guarantee that no person or

group will be denied the protection under the law that is enjoyed by similar persons or groups; in

other words, persons who appear similarly situated must be similarly treated.

177. When those who appear similarly situated are nevertheless treated differently, the

Equal Protection Clause requires at least a rational basis for such disparate treatment, to ensure

that all persons subject to legislation or regulation are indeed being “treated alike, under like

circumstances and conditions.” Engquist v. Ore. Dep’t of Agr., 553 U.S. 591, 602 (2008).

178. Executive Order 202.68 and the Initiative classify Petitioners as personal care

services businesses, and promptly order Petitioners to close their businesses without any basis or

justification, in direct violation of Petitioners’ rights under the Equal Protection Clause.

{H2826203.1} 33
HOGANWILLIG
Attorneys at Law
2410 NORTH FOREST ROAD | SUITE 301 | AMHERST, NEW YORK 14068
Phone: 716.636.7600 | Toll Free: 800.636.5255 | Fax: 716.636.7606 | www.hoganwillig.com
179. Petitioners, as a class of personal care services businesses, are being treated

differently than those personal care services businesses located elsewhere in the State of New

York which are not located within an Orange Zone under the Initiative.

180. If one of Petitioners’ businesses were, for example, located on one side of a street

in Erie County, and an identical business were located on the other side of the street in Niagara

County, the hypothetical Petitioner in that case would be required to close their business simply

by virtue of their being located in an Orange Zone, while the identical business across the street

would be permitted to continue operating under the Interim Guidance, despite the fact that the

identical business is located mere feet from that of the hypothetical Petitioner.

181. The fact pattern set forth above underscores the arbitrary and capricious nature of

the disparate treatment now being asserted against Petitioners, to the benefit of other similarly

situated businesses who happen to not be located within an Orange Zone.

182. Petitioners, again as a class of personal care services businesses, are also being

treated differently than those similarly situated businesses in other industries.

183. Under Respondent Cuomo’s Initiative, and given Erie County’s ongoing “Orange

Zone” designation, Petitioners are required to shut down their respective businesses, while other

businesses heretofore deemed “non-essential,” such as hardware stores, pet grooming businesses,

and smoke shops, by way of example only, are permitted to remain open.

184. Therefore, not only are Petitioners being discriminated against when compared to

other businesses in the personal care services industry who are similarly situated, but they are

also being discriminated against when compared to those business in other industries who have

been permitted to remain open to date and who are nevertheless similarly situated.

{H2826203.1} 34
HOGANWILLIG
Attorneys at Law
2410 NORTH FOREST ROAD | SUITE 301 | AMHERST, NEW YORK 14068
Phone: 716.636.7600 | Toll Free: 800.636.5255 | Fax: 716.636.7606 | www.hoganwillig.com
185. There is no rational or scientific basis for the disparate treatment of Petitioners by

Respondents, particularly when compared to similarly situated businesses throughout the State of

New York, which operate in virtually the same manner as Petitioners’ facilities.

186. Importantly, Respondents have offered no scientific or other credible evidence or

basis upon which to impose such shutdowns, nor to link any increase in COVID-19 cases (or any

cases at all) to the operation of Petitioners’ businesses. In fact, Notably, not one (1) of the thirty-

one (31) Petitioners has had a COVID-related infection traced to their business.

187. Notably, even before the onset of the COVID-19 pandemic, Petitioners, by their

position as businesses located in Erie County, were required to comport with stringent hygiene

and sanitation requirements, and have since enacted even more exacting requirements under the

Interim Guidance, which are more careful than those that could be found implemented by most

large retail and department stores, such as Walmart, Target, Lowe’s, Home Depot, and the like.

188. Respondent Cuomo has justified the issuance and enforcement of the Executive

Orders by suggesting that the restrictions are necessary to combat COVID-19. However, a

cursory review of the Executive Orders and Initiative-related guidance shows that not only were

the restrictions not reasonably tailored to that goal, but that they discriminate against identically

situated businesses by placing severe restrictions on some, but not others.

189. Respondent Cuomo’s Executive Orders, including Executive Order 202.68 and

the Initiative, are in direct violation of Petitioners’ rights under the Equal Protection Clause.

190. Accordingly, Petitioners seek a declaration that the issuance and imposition of

Executive Order 202.68 and the Initiative violate Petitioners’ rights under the Equal Protection

Clause, as well as a permanent injunction enjoining Respondents from enforcing the arbitrary

and capricious restrictions against Petitioners in violation of Petitioners’ rights.

{H2826203.1} 35
HOGANWILLIG
Attorneys at Law
2410 NORTH FOREST ROAD | SUITE 301 | AMHERST, NEW YORK 14068
Phone: 716.636.7600 | Toll Free: 800.636.5255 | Fax: 716.636.7606 | www.hoganwillig.com
AS AND FOR A SIXTH CAUSE OF ACTION
VIOLATION OF THE 14th AMENDMENT – SUBSTANTIVE DUE PROCESS

191. Petitioners repeat and reallege each and every allegation in the preceding

paragraphs of this Verified Petition and Complaint, as if fully set forth herein.

192. Pursuant to the Fourteenth Amendment of the United States Constitution, which

provides, in relevant part, that no state shall “deprive any person of life, liberty, or property

without due process of law.” U.S. Const. amend. XIV.

193. Petitioners have a liberty and/or property interest in operating and carrying out

their business free from “arbitrary deprivation from the state.”

194. Substantive due process, as recognized by the U.S. Supreme Court, permits courts

to strike down laws that are unreasonable, arbitrary, or without relation to the purpose of

litigation. See Nebbia v. New York, 291 U.S. 502 (1934).

195. Although there exists a legitimate State interest in protecting the public’s health

and welfare, the actions of Respondents are unreasonable, arbitrary, and capricious, and are not

the least restrictive means for achieving the State’s interests.

196. Respondents actions in classifying Petitioners as personal care services businesses

subject to closure under the Orange Zone designation of the Initiative and attempting to force

said closure are unreasonable, arbitrary, capricious, and are not the least restrictive means for

achieving the state’s interests.

197. Respondents’ actions also deprived Petitioners of substantive due process because

the deficiency notice and/or closure order imposed on Petitioners failed to specify the condition

at Petitioners’ places of business purported to be “detrimental to the public health” and was,

consequently, defective.

{H2826203.1} 36
HOGANWILLIG
Attorneys at Law
2410 NORTH FOREST ROAD | SUITE 301 | AMHERST, NEW YORK 14068
Phone: 716.636.7600 | Toll Free: 800.636.5255 | Fax: 716.636.7606 | www.hoganwillig.com
198. Petitioners were able to safely operate when Erie County was designated as a

“Yellow Zone”, without any COVID-19 illnesses while following the state and county mandated

protocols and Petitioners were not apprised of any reason they would be unable to safely operate

following the same protocols under the “Orange Zone” designation.

199. There exists no valid or sound scientific or otherwise credible rationale for

prohibiting personal care services from operating, as has been done by Respondents, for the

reason that Respondents have failed to establish how personal care services contribute to the

increase risk of exposure, or spread, of COVID-19. As a result, Respondents actions, including

the Executive Orders and associated guidance, are arbitrary, capricious, constitute an abuse of

discretion, and unlawful based violation of Petitioners’ constitutional rights.

200. Effectively, Respondents are using COVID-19 as a pretense to institute a lethal

and comprehensive prohibition on personal care service businesses in Erie County.

201. Petitioners have no way of knowing when they can resume business. Petitioners

have been denied the ability to generate revenue and the Respondents’ actions are arbitrary and

capricious given that they, in effect, result in the discontinuation of Petitioners’ business

operations, which in most cases will lead to their total and permanent closure.

202. The types of services, in part, provided by Petitioners require minimal to no

person-to-person contact and, therefore, Respondents’ issuance of Executive Order 202.68 and

its related guidance thereon bear no relation to the State’s purported interest in protecting the

public’s health and welfare, and are unduly restrictive of Petitioners’ constitutional rights.

203. Given the types of services being provided by Petitioners, Respondents’ actions in

issuing the Executive Orders, and the purportedly clarifying guidance thereon, bear no relation to

the State’s purported interest in protecting the public’s health and welfare, and are unduly

{H2826203.1} 37
HOGANWILLIG
Attorneys at Law
2410 NORTH FOREST ROAD | SUITE 301 | AMHERST, NEW YORK 14068
Phone: 716.636.7600 | Toll Free: 800.636.5255 | Fax: 716.636.7606 | www.hoganwillig.com
restrictive of Petitioners’ constitutional rights, as there is no evidence to suggest that Petitioners

would be placing the public at any greater of a risk of contracting COV1D-19 than those same

individuals would be at if Petitioners were permitted to operate and be fully functional.

204. By reason of the foregoing, Respondents have violated Petitioners’ substantive

due process rights under the United States and New York Constitutions.

205. Without immediate injunctive relief to preclude Respondents from violating

Petitioners’ constitutional rights, Petitioners are being irreparably harmed because they are now

required to immediately shut down their businesses, and as a result of being designated as

“personal care businesses,” will be further required to shut down each time there is an “Orange

Zone” designation, which will results in a total discontinuation of Petitioners’ businesses.

206. Accordingly, Petitioners seek a permanent injunction enjoining Respondents from

enforcing the arbitrary restrictions on Petitioners in violation of Petitioners’ rights.

AS AND FOR A SEVENTH CAUSE OF ACTION


VIOLATION OF THE 14th AMENDMENT – PROCEDURAL DUE PROCESS

207. Petitioners repeat and reallege each and every allegation in the preceding

paragraphs of this Verified Petition and Complaint, as if fully set forth herein.

208. Procedural due process is similarly a form of due process provided by the

Fourteenth Amendment, and recognized by the Supreme Court, which protects from the loss of

liberties or property interests without the benefit of a fair procedural process. See Bd. Of Regents

of State Colleges v. Roth. 408 U.S. 564 (1972); see also U.S. Const. amend. XIV.

209. Petitioners have a liberty and/or property interest in operating and carrying out

their business free from “arbitrary deprivation from the state.”

{H2826203.1} 38
HOGANWILLIG
Attorneys at Law
2410 NORTH FOREST ROAD | SUITE 301 | AMHERST, NEW YORK 14068
Phone: 716.636.7600 | Toll Free: 800.636.5255 | Fax: 716.636.7606 | www.hoganwillig.com
210. Executive Order 202.68 and the Initiative, as applied to Petitioners, constitutes a

permanent adjudicatory determination applied against Petitioners, and permanently classifies

Petitioners as personal care businesses and subject to immediate closure.

211. Erie County was designated as an “Orange Zone” on November 18, 2020. That

designation requires Petitioners’ businesses to be closed notwithstanding Petitioners’ careful

compliance with the applicable protocol to protect public health and safety, and despite the fact

that no COVID-19 cases have been traced to Petitioners’ businesses.

212. Petitioners were not given fair notice of this determination because the Initiative

and related guidance failed to specify the conditions present at Petitioners’ places of business

purported to be “detrimental to the public health,” and were therefore defective.

213. Petitioners were able to safely operate when Erie County was designated as a

“Yellow Zone,” without any COVID-19 cases while following the mandated protocols and

Petitioners were not apprised of any reason they would be unable to safely operate following the

same protocols under the “Orange Zone” designation.

214. There exists no valid or sound scientific or medical rationale for prohibiting

personal care services from operating, as has been done by Respondents, for the reason that

Respondents have failed to establish how personal care services contribute to the increase risk of

exposure, or spread, of COVID-19. As a result, Respondents actions, including the Executive

Orders and associated guidance, are arbitrary, capricious, constitute an abuse of discretion, and

unlawful based violation of Petitioners’ constitutional rights.

215. Essentially, under the pretext of the COVID-19 pandemic, Respondents are

seeking to implement a blanket prohibition on personal care services.

{H2826203.1} 39
HOGANWILLIG
Attorneys at Law
2410 NORTH FOREST ROAD | SUITE 301 | AMHERST, NEW YORK 14068
Phone: 716.636.7600 | Toll Free: 800.636.5255 | Fax: 716.636.7606 | www.hoganwillig.com
216. By reason of the foregoing, Respondents have violated Petitioners’ procedural

due process rights under the United States and New York Constitutions.

217. Without immediate injunctive relief to preclude Respondents from violating

Petitioners’ rights, Petitioners will be irreparably harmed because they will be required to keep

their businesses shut down indefinitely, and as a result of being permanently designated as

“personal care businesses,” will be required to shut down each time there is a new “Orange

Zone” designation, which will result in the permanent closure of Petitioners’ businesses.

218. Respondents have stripped Petitioners of their constitutional rights, as protected

by the Fourteenth Amendment, and have done so knowing that Petitioners will have no

substantial means, other than through litigation, to address such actions.

219. Accordingly, Petitioners seek permanent injunction enjoining Respondents from

enforcing the arbitrary restrictions on Petitioners in violation of Petitioners’ rights.

AS AND FOR AN EIGHTH CAUSE OF ACTION


ATTORNEYS’ FEES AND COSTS

220. Petitioners repeat and reallege each and every allegation in the preceding

paragraphs of this Verified Petition and Complaint, as if fully set forth herein.

221. 42 U.S.C. § 1988(b) provides, in relevant part: “In any action or proceeding to

enforce a provision of [42 U.S.C. $ 1983] . . . the court, in its discretion, may allow the

prevailing party, other than the United States, a reasonable attorney's fee as part of the costs[.]”

222. The Supreme Court, in Hutto v. Finney, 437 U.S. 678 (1978), confirmed the

discretion of courts to award attorney's fees pursuant to 42 U.S.C. $ 1988 in actions where a

plaintiff is seeking redress for the deprivation of constitutional rights under 42 U.S.C. § 1983.

223. In the instant proceeding, Petitioners’ Fourth, Fifth, Sixth, and Seventh Causes of

Action are each brought to enforce a provision of 42 U.S.C. § 1983 – namely, that, under color

{H2826203.1} 40
HOGANWILLIG
Attorneys at Law
2410 NORTH FOREST ROAD | SUITE 301 | AMHERST, NEW YORK 14068
Phone: 716.636.7600 | Toll Free: 800.636.5255 | Fax: 716.636.7606 | www.hoganwillig.com
of State law, Respondents have subjected Petitioners to the egregious and substantial deprivation

of certain rights, privileges, and immunities secured by the Fifth and Fourteenth Amendments to

the United States Constitution. See 42 U.S.C. § 1983.

224. These rights include, but are not limited to, Petitioners’ right to be free

government interference with its property rights under the Fifth Amendment, Petitioners’ rights

to equal protection under the Fourteenth Amendment, and Petitioners rights to substantive and

procedural due process under the Fifth and Fourteenth Amendments.

225. Accordingly, Petitioners seek their reasonable attorney fees as part of their costs

in seeking redress for the deprivation of its constitutional rights under 42 U.S.C. § 1983.

WHEREFORE, Petitioners demand judgment as follows:

a. On their First Cause of Action, that the Court issue: (i) a temporary restraining order,

preliminary injunction, and ultimately a permanent injunction, enjoining Respondents

from classifying Petitioners as “personal care businesses” required to close pursuant

to Executive Order 202.68 and the Initiative, and otherwise permitting Petitioners to

remain open for the duration of the COVID-19 pandemic; and (ii) enter an Order

suspending the pay of Respondents for the duration of the COVID-19 pandemic.

b. On their Second Cause of Action, that the Court declare New York State Executive

Law § 29-a to be facially and substantively unconstitutional, as an unconstitutional

delegation of non-delegable legislative authority to Respondent Cuomo;

c. On their Third Cause of Action, that the Court issue declare that Respondent

Cuomo’s actions exceed the scope of his authority under New York State Executive

Law § 29-a, and are an abuse of Respondent Cuomo’s executive powers thereunder;

{H2826203.1} 41
HOGANWILLIG
Attorneys at Law
2410 NORTH FOREST ROAD | SUITE 301 | AMHERST, NEW YORK 14068
Phone: 716.636.7600 | Toll Free: 800.636.5255 | Fax: 716.636.7606 | www.hoganwillig.com
d. On their Fourth Cause of Action, that the Court enter an Order: (i) permanently

enjoining Respondents from enforcing Executive Order 202.68 and the Initiative

against Petitioners in violation of the Fifth Amendment; and (ii) suspending the pay

of Respondents for the duration of the COVID-19 pandemic;

e. On their Fifth Cause of Action, that the Court enter an Order: (i) permanently

enjoining Respondents from enforcing Executive Order 202.68 and the Initiative

against Petitioners in violation of the Fourteenth Amendment; and (ii) suspending the

pay of Respondents for the duration of the COVID-19 pandemic;

f. On their Sixth Cause of Action, that the Court enter an Order: (i) permanently

enjoining Respondents from enforcing Executive Order 202.68 and the Initiative

against Petitioners in violation of the Fifth and Fourteenth Amendments; and (ii)

suspending the pay of Respondents for the duration of the COVID-19 pandemic;

g. On their Seventh Cause of Action, that the Court enter an Order: (i) permanently

enjoining Respondents from enforcing Executive Order 202.68 and the Initiative

against Petitioners in violation of the Fifth and Fourteenth Amendments; and (ii)

suspending the pay of Respondents for the duration of the COVID-19 pandemic;

h. On their Eighth Cause of Action, that this Court enter an Order awarding Petitioners

their reasonable attorneys’ fees under 42 U.S.C. § 1988; and

i. Such other and further relief as this Court may deem just, proper, and equitable.

DATED: December 10, 2020


Amherst, New York
Respectfully submitted,

____________________________
Corey J. Hogan, Esq.

{H2826203.1} 42
HOGANWILLIG
Attorneys at Law
2410 NORTH FOREST ROAD | SUITE 301 | AMHERST, NEW YORK 14068
Phone: 716.636.7600 | Toll Free: 800.636.5255 | Fax: 716.636.7606 | www.hoganwillig.com
Steven M. Cohen, Esq.
HOGANWILLIG, PLLC
Attorneys for Petitioners
2410 North Forest Road, Suite 301
Amherst, New York 14068
Telephone: (716) 6 36-7600
chogan@hoganwillig.com
scohen@hoganwillig.com

{H2826203.1} 43
HOGANWILLIG
Attorneys at Law
2410 NORTH FOREST ROAD | SUITE 301 | AMHERST, NEW YORK 14068
Phone: 716.636.7600 | Toll Free: 800.636.5255 | Fax: 716.636.7606 | www.hoganwillig.com