Judge rules in favor of restaurants; businesses named in lawsuit can reopen under Yellow Zone restrictions


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A judge has ruled in favor of Western New York restaurant owners who filed a lawsuit against the state.

BUFFALO, N.Y. — Judge Henry J. Nowak has ruled in favor of Western New York restaurant owners who filed a lawsuit against the state.

Ninety-one restaurants were apart of the filing, those restaurants will be able to reopen under Yellow Zone restrictions starting Thursday. This means indoor dining will be allowed.

Within the judge’s decision it says, “The court concludes that all parties named in the amended petition filed on January 8 are hereby permitted to operate under Yellow Zone restrictions.”

Restaurants in Yellow Zones are allowed to do indoor dining at 50 percent capacity with no more than four people at a table, so that now applies to the restaurants that filed this lawsuit and are still in the Orange Zone.

“Basically, we were asking for to go back to the June guidelines, which would be 50 percent, 50 people, you know, open regular hours,” restaurant owner Paul Santora said Wednesday.

“So I’m not, you know, the lawyers are in the process now of trying to figure that out, but I had tremendous confidence in Judge Nowak. He really seemed to sympathize with what we were looking for, and how we were feeling, and what’s happening in Western New York. And I’m pleased.”

Added restaurant owner Brandon Carr: “I am so grateful that Judge Nowak made the right decision we had a feeling he would. He’s notorious for being a very fair judge, and we feel his ruling on this was incredible.”

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

During the hearing, 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 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, he said he would make a decision on the matter Wednesday.

On Wednesday, when asked what he believes swayed Judge Nowak, Hogan said, “from my mind I think it’s the state’s own data, I think the judge saw that these restaurants were not contributing to the viral spread.”

Hogan noted that the ruling is temporary until there can be a more formal hearing with testifying witnesses. 

“Basically the judge said I am going to allow these restaurants to operate with indoor dining because I think when it comes time for the permanent injunction they may be out of business” Hogan continued.

A spokesperson for the Governor’s office told 2 On Your Side that they are reviewing the ruling. 

When asked if he believes NYS will appeal, Hogan said he is aware of several other similar lawsuits and said he is does not believe that NYS has appealed any of those yet.

The restaurants listed in the lawsuit will be able to reopen after Judge Nowak signs the ruling on Thursday.

Here is a list of all of the restaurants included in the lawsuit:

  • A.C. + J RESTAURANT, INC. d/b/a THE PEPPERMILL RESTAURANT,
  • ALFIERI DUQUIN, INC.,
  • AMHERST PIZZA & ALE HOUSE, INC.,
  • BANCHETTI BY RIZZOS, INC., d/b/a BANCHETTI BY RIZZO’S,
  • BILL SHAFLUCAS, LLC, d/b/a BREW BUS BUFFALO and
  • DJ TRIVIA OF WNY,
  • BOTTOMS UP V, LLC d/b/a BOTTOMS UP,
  • BUFFALO’S BEST CATERING, LLC,
  • BUFFALO GRILL N ALE HOUSE, LLC d/b/a, BUFFALO
  • GRILL N ALE HOUSE,
  • BVPK, INC.,
  • CAMPFIRE GRILL II, INC,
  • CARJONS RESTAURANT GROUP, INC. d/b/a SHARE
  • KITCHEN + BAR ROOM,
  • CHICK’S RESTAURANT AND LANES, INC.,
  • COLONIE LOUNGE, INC. d/b/a COLONIE LOUNGE,
  • CRITCHEN, LLC, d/b/a THE CRITCHEN,
  • DA BADA, INC. d/b/a BADABING BAR AND GRILL,
  • DADDY GOO GOO, LLC, d/b/a CASA DI FRANCESCA’S,
  • DDF RESTAURANTS, INC. d/b/a DUFF’S FAMOUS WINGS,
  • DON BENOIT d/b/a PRESCOTT’S PROVISIONS,
  • DVS PROPERTIES, LLC,
  • D&R KAZ, INC. d/b/a KAZ’S BAR,
  • EXPO MARKET, INC.,
  • GALLERY EVENTS, LLC d/b/a VENU,
  • GABRIEL’S GATE, INC.,
  • GERTIES, INC. d/b/a GERTIE’S RESTAURANT,
  • GREEK TO ME RESTAURANT, LLC, d/b/a GREEK TO ME RESTAURANT,
  • GYPSY BOHEMIAN GROVE BAR, INC.,
  • ICE HOUSE PUB, LLC, d/b/a ICE HOUSE PUB,
  • JMB ENTERPRISES OF ERIE, INC. d/b/a MURPH’S WARSAW GRILL,
  • JOHN DOE CORP.,
  • KFEATHER5, LLC d/b/a DUFF’S FAMOUS WINGS,
  • KMT MANAGEMENT, INC. d/b/a BUFFALO BREW PUB,
  • KELLY’S KORNER, INC.,
  • KOOKOOVAYIA, LLC, d/b/a DUFFS OF ORCHARD PARK,
  • LADY BIRDS RESTAURANTS, LLC d/b/a THE BAYOU,
  • LOCAL BUFFALO, LLC,
  • LOCAL GRILLE & CATERING, LLC,
  • LYONS, BIGGANE, INC. d/b/a THE BYRD HOUSE RESTAURANT,
  • MALBEAT INC., d/b/a MALLWITZ’S ISLAND LANE,
  • MAMBRINO KING WINE-COFFEE BAR, LLC,
  • MANFURT & TORALTI RESTAURANTS, INC.,
  • MARY SANTARINI d/b/a LONDA’S DINER,
  • MATILDA BIRD, LLC d/b/a THE GLOBE,
  • MCCANS, INC. d/b/a MOONEY’S SPORTS BAR & GRILL,
  • MGPUBLIC, LLC,
  • MIKEYCATIE, INC. d/b/a ROOKIES SPORTS BAR
  • MKC RESTAURANTS, LLC d/b/s NEAT,
  • MPR RESTAURANTS WNY, Inc. d/b/a SCHNITZEL & CO.,
  • MUSTANG SALLYS SPIRITS AND GRILL, INC. d/b/a NY SHOWGIRLS,
  • MY TOMATO PIE, INC.,
  • OVERPASS PUB, LLC d/b/a OVERPASS PUB,
  • PHAROHS GC, INC.,
  • RADCOL, INC. d/b/a RADIGAN’S,
  • RAPHAEL’S CORP. d/b/a RAPHAEL’S,
  • RIZOTTO, INC., d/b/a RIZOTTO ITALIAN EATERY,
  • RIZZO’S CASA DI ITALIA, INC., d/b/a RIZZO’S CASA DI ITALIA,
  • RUSSELL M. BRAUN, INC. d/b/a SMOKIN LITTLE DINER
  • SANTORA’S PHASE II, LLC,
  • SANTORA’S PIZZA PUB AND GRILL, INC.,
  • SCOTT A. JARGIELLO d/b/a CAMPFIRE GRILL,
  • SCHWEIS SPRINGER, LLC, d/b/a EBENEZER ALE HOUSE
  • SHOWNY, LLC d/b/a SCULPTURE HOSPITALITY OF WNY,
  • SMITH BUDUSON, INC. d/b/a ROBBIE’S BAR AND GRILL,
  • SPORTS CITY PIZZA PUB, INC. d/b/a SPORTS CITY PIZZA PUB,
  • STEEL CITY PUB, INC. d/b/a STEEL CITY PUB,
  • SUNNY’S DRIVE IN, INC., d/b/a NINA’S CUSTARD,
  • SUNNY’S DRIVE IN TRANSIT, INC.,
  • TACO COCINE ELLICOTT, LLC d/b/a DEEP SOUTH TACO,
  • TACO COCINE HERTEL, LLC d/b/a DEEP SOUTH TACO,
  • TANTALUS, LLC, d/b/a THE YELLING GOAT RESTAURANT,
  • TBF ENTERPRISES, INC.,
  • TETON SKY CORP. d/b/a TETON KITCHEN and
  • TETON KITCHEN ELMWOOD,
  • THE DEFIELDS CORP. d/b/a
  • THE FIRE HOUSE SPORTS BAR & GRILL,
  • THE HOWLING ROOSTER, LLC,
  • THE ORIGINAL PANCAKE HOUSE OF ORCHARD PARK, INC.,
  • THE ORIGINAL PANCAKE HOUSE OF WILLIAMSVILLE, INC.,
  • TRACY STREET PRODUCTIONS, INC.,
  • WILLIAM JAMES DEVELOPMENT CORP. d/b/a RODNEY’S RESTAURANT,
  • WNY BEER CLUB, LLC d/b/a RUSTY NICKEL BREWING CO.,
  • WNY RESTAURANT SYSTEM d/b/a DUFF’S FAMOUS WINGS,
  • 3G ENTERTAINMENT, INC., d/b/a MANOR LANES,
  • 23 S. BUFFALO ST., INC. d/b/a THE POUR HOUSE BAR AND GRILL
  • 99 BRICK OVEN BAR AND GRILLE, LLC,
  • 3989 MAIN STREET, INC. d/b/a, BRUNNER’S TAVERN,
  • 5111 GENESEE ST., INC. d/b/a SCORES,
  • 5786 TRANSIT RD., INC. d/b/a FIELDSTONE COUNTRY INN, and
  • 8444 TRANSIT RD., LLC d/b/a TAVERN AT WINDSOR PARK,

You can read the full decision below:



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