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2021 Patrick M Gallivan Et V Patrick M Gallivan Et Decision Order On 140 H2966986xbaeb0
2021 Patrick M Gallivan Et V Patrick M Gallivan Et Decision Order On 140 H2966986xbaeb0
2021 Patrick M Gallivan Et V Patrick M Gallivan Et Decision Order On 140 H2966986xbaeb0
801046/2021
NYSCEF DOC. NO. 140 RECEIVED NYSCEF: 04/17/2021
Petitioners/Plaintiffs,
DECISION AND ORDER
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Respondents/Defendants.
______________________________________
HOGAN WILLIG
Corey J. Hogan, Esq., Of Counsel
Nicholas A. Taylor, Esq., Of Counsel
Attorneys for Petitioners
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,
Andrew M. Cuomo, Governor of New York (the “Governor”), on November 12, 2020 (“EO
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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 . . . .
In a Decision and Order, dated February 27, 2021 (Doc. 118) this court held, in relevant
part, as follows;
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
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Terms defined in the February 27, 2021 Decision and Order are similarly defined herein.
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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.
In their Answer and Return, Respondents included a motion to dismiss the Petition on the
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
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...
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
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:
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
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applications.
First, former Executive Law §29-a has been repealed, meaning the Petition challenges a
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
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
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
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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
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
____________________________________
HON. TIMOTHY J. WALKER, J.C.C.
Acting Supreme Court Justice
Presiding Justice, Commercial Division
8th Judicial District
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