INDEX NO.

801046/2021
NYSCEF DOC. NO. 140 RECEIVED NYSCEF: 04/17/2021

STATE OF NEW YORK

SUPREME COURT : COUNTY OF ERIE
______________________________________

PATRICK M. GALLIVAN, ET AL.,

Petitioners/Plaintiffs,
DECISION AND ORDER
- against - Index No.: 801046/2021

ANDREW M. CUOMO, ET AL.,

Respondents/Defendants.
______________________________________

BEFORE: HON. TIMOTHY J. WALKER, Presiding Justice

APPEARANCES: LIPSITZ GREEN SCIME CAMBRIA LLP

Paul J. Cambria, Esq., Of Counsel
Todd J. Aldinger, Esq., Of Counsel
Attorneys for Petitioners

HOGAN WILLIG
Corey J. Hogan, Esq., Of Counsel
Nicholas A. Taylor, Esq., Of Counsel
Attorneys for Petitioners

LETITIA JAMES, ATTORNEY GENERAL,

STATE OF NEW YORK
Ryan L. Belka, Esq., Assistant Attorney General, Of Counsel
Joel Terragnoli, Esq., Assistant Attorney General, Of Counsel
Attorneys for Respondents

WALKER, J.

In this hybrid proceeding (NYSCEF Doc. No. 1), Petitioners seek a permanent

injunction, enjoining the Respondents and those acting in concert with them, from extending,

implementing, or enforcing that portion of Executive Order 202.74, issued by Respondent,

Andrew M. Cuomo, Governor of New York (the “Governor”), on November 12, 2020 (“EO

-1-

1 of 6
 INDEX NO. 801046/2021
NYSCEF DOC. NO. 140 RECEIVED NYSCEF: 04/17/2021

202.74”), which implemented an operational curfew on restaurants and bars (the “Curfew”):

All businesses that are licensed by the State Liquor Authority for
on premises service of alcoholic beverages, shall cease all on
premises service and consumption of food and beverages
(including alcoholic beverages), inside or outside, at or before
10:00PM and shall not reopen before the later of any stipulated
opening hours or existing county opening hours permit . . . .

All restaurants, irrespective of whether such restaurant is licensed

by the State Liquor Authority, shall cease in-person dining at
10:00PM, but may continue curbside takeout and delivery service
after 10:00PM so long as otherwise permitted, and may reopen no
earlier than 5:00AM (Doc. No. 3).

In a Decision and Order, dated February 27, 2021 (Doc. 118) this court held, in relevant

part, as follows;

ORDERED, that the Application for a Preliminary Injunction is

granted to the extent that the Restaurant/Bar Petitioners are hereby
permitted to operate their businesses pursuant to the NYS
Department of Health Interim Guidance for Food Services during
the COVID-19 Public Health Emergency, without the application
of any curfew, whether it be imposed by EO 202.74 in its original
form, or as purportedly modified by EO 202.941.

On March 3, 2021, Respondents appealed from the February 27, 2021 Decision and Order

(Doc. 120) and, on March 9, 2021, Respondents applied to the Appellate Division, Fourth

Department (the “Fourth Department”) for an order vacating or modifying the February 27, 2021

Decision and Order during the pendency of the appeal, insofar as it granted a preliminary

injunction.

On April 8, 2021, the Fourth Department issued an Order in connection with such

application (Doc. 135), which held as follows:

1
Terms defined in the February 27, 2021 Decision and Order are similarly defined herein.

-2-

2 of 6
 INDEX NO. 801046/2021
NYSCEF DOC. NO. 140 RECEIVED NYSCEF: 04/17/2021

It is hereby ORDERED that the motion is granted and the order of

Supreme Court, entered February 27, 2021, is vacated during the
pendency of the appeal insofar as it granted a preliminary
injunction, on the condition that appellants perfect the appeal on or
before May 7, 2021.

On April 9, 2021, the court held a telephone conference (virtually) with counsel for the

respective parties, at which time it was determined that Respondents were in default in having

failed to file their Answer and Return to the Petition. Notwithstanding, the court directed

Respondents to electronically file same with the NYSCEF System no later than April 15, 2021 at

11:59 p.m.; and directed Petitioners to electronically file with the NYSCEF System a reply, if

any, no later than April 16, 2021, at noon; and the court scheduled oral argument (virtually) for

the return of the Petition for April 16, 2021, at 3:00 p.m.

Respondents filed an Answer and Return (Docs. 122-136); Petitioners filed a Reply (Doc.

137); and oral argument proceeded (virtually), as scheduled.

In their Answer and Return, Respondents included a motion to dismiss the Petition on the

alleged ground that it is moot (Doc. 122, ¶¶112-133).

In the February 27, 2021 Decision and Order, the court reviewed the statutory scheme

upon which the Petition is based, which included an analysis of whether EO 202.74 had expired

and whether EO 202.94 constituted an unlawful modification thereof (see Petitioners’ Fourth

Cause of Action, Doc. No. 1, ¶¶138-149; see also, Doc. 118, pp. 7-10).

In noting and analyzing the distinction between how the then existing version of

Executive Law §29-a addressed a “suspension” versus a “directive” in an Executive Order, the

court held, in relevant part, as follows:

The express, clear, and unambiguous terms of the statute authorize

-3-

3 of 6
 INDEX NO. 801046/2021
NYSCEF DOC. NO. 140 RECEIVED NYSCEF: 04/17/2021

the Governor to extend a “suspension” for additional periods of up

to thirty (30) days each, but no similar provision exists authorizing
the Governor to extend “directives” for any period of time.
Accordingly, EO 202.74, which was issued on November 12, 2020,
expired on December12, 2020, and should no longer serve as a bar
to the Restaurant/Bar Petitioners in connection with the operation
of their respective businesses (Doc. 118, p.8).

...

The explicit references to EO 202.74 contained throughout EO

202.94 clearly show that it is not a new directive, but a modified
extension of an existing directive. Accordingly, EO 202.94 is a
nullity, because it sought to modify an Executive Order which had
expired on December 12, 2020 (Id., at p. 10).

On March 7, 2021, the New York State Legislature (the “Legislature”) passed Senate Bill

S. 5357, New York Ch. 71 of the Laws of 2021 (“Chapter 71”) which, upon becoming effective

on such date, replaced the statutory scheme upon which the Petition is based and created a new

law and process for issuing executive orders. Chapter 71 sought to extend the State’s response to

the Pandemic and, importantly for purposes of the pending applications (i.e., the Petition and

motion to dismiss), repealed former Executive Law §29-a.

Chapter 71 provides that all executive orders then “in effect” as of March 7, 2021, were

approved by the Legislature and continued for an additional thirty (30) days:

[A]ny directive issued pursuant to this chapter in effect at the time

of such repeal [of Executive Law §29-a] shall be permitted to
continue for 30 days from the date of such repeal, unless further
extended . . . (Doc. 133, p. 3).

This court previously held that, as a modified extension of EO 202.74, EO 202.94 was a

nullity, because it ran afoul of former Executive Law §29-a. However, for two (2) reasons, such

determination is not binding for purposes of the court’s present analysis of the pending

-4-

4 of 6
 INDEX NO. 801046/2021
NYSCEF DOC. NO. 140 RECEIVED NYSCEF: 04/17/2021

applications.

First, former Executive Law §29-a has been repealed, meaning the Petition challenges a

law that no longer exists.

Second, the court’s previous determination that EO 202.94 was a nullity was not made as

a final determination on the merits. Rather, it was made in the context of an application for a

preliminary injunction, where the court found that, inter alia, Petitioners had demonstrated a

likelihood of success on the merit; not that they had definitively prevailed on the merits. Thus,

in light of the subsequent passage of Chapter 71 (and the concomitant repeal of former Executive

Law §29-a), the court’s prior analysis and determination regarding former Executive Law §29-a

is irrelevant to Petitioners’ pending application for a permanent injunction.

Chapter 71 effectively rescinded the statutory underpinnings of the pending matter.

Accordingly, the Petition has been mooted, because the Restaurant/Bar Petitioners’ ability to

operate will not “be affected by any view this court might express on the merits” of the

constitutionality of the State’s response to the Pandemic under former Executive Law §29-a

(DeFunis v. Odegaard, 416 US 312, 317 [1974] [appeal challenging the plaintiff’s rejection from

law school was moot where the plaintiff had subsequently been admitted and any decision on the

merits would not affect the plaintiff’s rights]).

It is undisputed that the Petition has not been amended to challenge Chapter 71 or

whether the Governor’s current “Notice of Intent” to extend (as modified therein) Executive

Order 202.94 (Doc. 125) satisfies the requirements of Chapter 71. Rather, the Petition seeks a

permanent injunction preventing Respondents from enforcing a former law which has no effect.

Any ruling by this court as to Respondents’ actions under the previous version of Executive Law

-5-

5 of 6
 INDEX NO. 801046/2021
NYSCEF DOC. NO. 140 RECEIVED NYSCEF: 04/17/2021

§29-a would amount to an advisory opinion on a non-existent statute.

In light of the foregoing, the court need not reach Petitioners’ remaining contentions, and

it is hereby

ORDERED, that the relief requested in the Petition is denied, the Petition is dismissed

and Respondents’ motion to dismiss is denied as moot.

This constitutes the Decision and Order of this Court. Submission of an order by the

parties is not necessary. The delivery of a copy of this Decision and Order by this court shall not

constitute notice of entry.

Dated: April 17, 2021

Buffalo, New York

____________________________________
HON. TIMOTHY J. WALKER, J.C.C.
Acting Supreme Court Justice
Presiding Justice, Commercial Division
8th Judicial District

-6-

6 of 6