FILED: ERIE COUNTY CLERK 01/15/2021 04:10 PM INDEX NO.

800376/2021
NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 01/15/2021

At a Special Term of the Supreme

Court, held in and for the County of
Erie, on the 14th day of January
2021.

STATE OF NEW YORK

SUPREME COURT : COUNTY OF ERIE

_______________________________________________

HUTCH & ASSOCIATES, INC.

Petitioner,
ORDER TO SHOW CAUSE
For Judgment Pursuant to
Article 78 of the CPLR Index No. 800376/2021

v.

ANDREW M. CUOMO, GOVERNOR OF NEW YORK,

and NEW YORK STATE DEPARTMENT OF HEALTH,

Respondents.
_______________________________________________

HON. HENRY J. NOWAK, J.S.C.

Justice Presiding

UPON the annexed Verified Petition of Petitioner HUTCH & ASSOCIATES, INC.

(“Petitioner”), dated January 11, 2021, with attached exhibits; the Affidavit of Mark Hutchison,

dated January 11, 2021; the Affirmation of Todd J. Aldinger, Esq., dated January 11, 2021, the

Affirmation of Todd J. Aldinger dated January 12, 2021, and the Memorandum of Law

submitted concurrently with this Order to Show Cause,

LET the Respondents ANDREW M. CUOMO, GOVERNOR OF NEW YORK, NEW

YORK and STATE DEPARTMENT OF HEALTH (“Respondents”) appear at Part 28 of this

Court at the Courthouse located at 25 Delaware Avenue, Buffalo, New York on the 19th day of

February 2020, at 2:00 p.m., or soon thereafter as counsel can be heard, and show cause why an

Order should not be granted:

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A. Declaring that the designation of the Erie County Orange Zone is arbitrary,

capricious, and an abuse of discretion;

B. Declaring that the Orange Zone restrictions on restaurants contained in Executive

Order 202.68 is arbitrary, capricious, and an abuse of discretion;

C. Declaring that Executive Order 202.68 violates the Equal Protection Clause of the

Fourteenth Amendment to the United States Constitution and corresponding

provisions of the New York State Constitution;

D. Declaring the Orange Zone restaurant restrictions violate Executive Law 29-a(2);

E. Declaring that the Governor’s extension of Executive Order 202.68 for a period of

time in excess of thirty days violates Executive Law 29-a(2)(a);

F. Declaring that the Governor’s issuance of directives for a period of time in excess of

thirty days violates the separation of powers contained in the New York State

Constitution;

G. Declaring that that the Governor’s issuance of directives without the approval of both

houses of the legislature violates the bicameral law-making process contained in the

New York State Constitution;

H. That the Court issue a preliminary injunction enjoining and restraining the

Respondents’ enforcement of the Erie County Orange Zone and Executive Order

202.68 during the pendency of this matter.

SUFFICIENT CAUSE HAVING BEEN SHOWN, it is hereby:

ORDERED, that service of a copy of this Order to Show Cause, the Petition, the

concurrently filed Memorandum of Law, the Verified Petition, the Affidavit of Mark Hutchison,

and the Affirmations of Todd J. Aldinger, Esq., and be deemed good and sufficient service on

Respondents if made on or before 5:00 p.m. on January 19, 2021 and:

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i. on Respondent ANDREW M. CUOMO, via email to Assistant Attorney General in Charge

Michael Russo, Esq. at michael.russo@ag.ny.gov; and

ii. on Respondent NEW YORK STATE DEPARTMENT OF HEALTH, by Certified Mail, Return

Receipt Requested , pursuant to CPLR § 307(2), to Susan Cartier, Esq., Director, Bureau of

Litigation, New York State Department of Health, ESP Coming Tower, Albany, New York

12237; and it is further

ORDERED, that answering papers, if any, shall be served via NYSCEF and email upon

the Court and upon Paul J. Cambria Jr. (pcambria@lglaw.com) and Todd J. Aldinger, Esq.

(taldinger@lglaw.com), attorneys for Petitioners on or before 5:00 p.m. on February 5, 2021; and

it is further

ORDERED, that reply papers, if any, shall be served via NYSCEF and email to counsel

for Respondents on or before February 17, 2021 on or before 5:00 p.m.; and it is further

ORDERED, that Petitioners have demonstrated that an immediate and irreparable injury,

loss, and damages will result unless Respondents are restrained before the hearing can be had;

and it is further

ORDERED, that Petitioner’s request for a Temporary Restraining Order is hereby

GRANTED, to the extent that Petitioner is hereby permitted to operate under the Yellow Zone

restrictions and pursuant to the Interim COVID-19 Guidance issued by the New York State

Department of Health (See Amherst Pizza and Ale, et. al. vs. Andrew Cuomo, et. al. Index No.

816373/2020 (Sup. Ct. Erie County Jan. 13, 2020) (NOWAK, JSC)); and it is further

ORDERED, that Petitioner’s request for a Temporary Restraining Order is hereby

GRANTED, to the extent that Petitioner, and all restaurants similarly situated in Erie County, are

hereby permitted to operate under the Yellow Zone restrictions and pursuant to the Interim

COVID-19 Guidance issued by the New York State Department of Health (See Amherst Pizza

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and Ale, et. al. vs. Andrew Cuomo, et. al. Index No. 816373/2020 (Sup. Ct. Erie County Jan. 13,

2020) (NOWAK, JSC)); and it is further

ORDERED, that Respondents are hereby temporarily restrained from drawing or

enforcing any Orange Zone, or future Orange Zone, that is arbitary and capricious and/or would

not withstand review pursuant the holding in Amherst Pizza & Ale House, Inc.

____________________________________
ENTERED: January 15, 2021 HENRY J. NOWAK, J.S.C

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