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Arguments in court: Restaurant owners fight NYS ban on indoor dining

A New York State Supreme Court judge will issue ruling by Wednesday in legal challenge to state's Orange Zone restrictions.

BUFFALO, N.Y. — A decision will be made within five days on a lawsuit filed on behalf of over 90 owners of Western New York restaurants.

Arguments from the state's attorneys and the attorneys who represent  the restaurant owners were heard Friday afternoon in a virtual session of New York State Supreme Court before Justice Henry J. Nowak.

Previously the state said no to a key request from the businesses for 50 percent indoor dining. Some restaurant owners warned that they may be on the brink of shutting down or moving out if the ban is not lifted.

Attorney Corey Hogan used the term "scapegoats" to describe how he says restaurants are being treated by the state and Gov. Andrew Cuomo with the COVID restrictions. Claiming irreparable harm, Hogan said the New York State Restaurant Association reports that a restaurant closes every day in the state.

Judge Nowak said he understood the concern about Erie County being in an orange zone while other regions around the state like the Albany area post high higher COVID rates and are not currently in any zone. An attorney from the state contends that the rates are not necessarily higher for the Capital region. 

But Nowak also recognized the state's point in removal of masks and potential COVID transmission while eating. 

The attorney for the state maintained that restrictions against indoor dining were based on scientific evidence and CDC guidance. He also stressed they are necessary with the recent surge in reported COVID cases. 

The businesses and attorneys contend the policy just does not make sense with the state's own reported 1.4 percent transmission rate for restaurants. They also point out that restaurants have been closed all along just as the COVID cases increased.

And there was mention of the air exchange systems used by restaurants which the owners say could actually make them safer than the air in a home. That was a reference to gatherings in homes which the governor has cited as a major risk.

Two of the restaurant owners later told 2 On Your Side they were feeling somewhat confident that the judge would rule in their favor based on his questions to the state and the points made by their attorney.