Cuomo, DiBlasio Face New Class Action Lawsuit Over COVID-19 Restrictions

Three small business owners have filed a new class action lawsuit against New York and its top officials over what they say are unfair and uneven COVID-19 restrictions that are doing them irreparable financial harm.

The entrepreneurs claim that Governor Andrew Cuomo and New York City Mayor Bill DeBlasio have, through their various orders, guidance and regulations, violated their rights to equal protection under the law and committed “takings without compensation.” What was taken, they say, was their livelihoods.

Andrew Heidel, who owns and operates The Way Station in Brooklyn, Franklin Ortega, the owner and operator of Po Italianissimo restaurant in Staten Island, and John Merolla, whose company runs the Murdered by the Mob dinner theater in Manhattan are asking the Court to certify their case and permit them to represent all other small business owners who have also been shut down by the city and state’s COVID-19 restrictions.

“Businesses deemed essential by the defendants were largely free from closures and restrictions. At the same time, many ‘non-essential’ businesses were destroyed, and all were damaged in some fashion,” the class action lawsuit claims. “Whatever Governor Cuomo’s initial motives might have been … he expressly admitted in October 2020 that Covid-19 restrictions imposed on New York State and New York City were not based on science or rationality, but were instead driven by fear and the purely political motive of being seen to be responding to public fear.”

The plaintiffs and their lawyers say they are basing those allegations on an article published by The Wall Street Journal in October, which quoted from a telephone conversation recorded between Cuomo and several religious leaders who were chafing at the restrictions affecting their communities. Cuomo reportedly said the state’s policy to deal with the coronavirus pandemic was based on fear and lacked finesse.

“This is not a highly nuanced, sophisticated response. This is a fear-driven response,” Cuomo was reportedly recorded saying. “You know, this is not a policy being written by a scalpel This policy is being cut by a hatchet.”

No matter how well-intentioned Cuomo and DeBlasio have been in issuing their orders to try to limit the spread of the coronavirus, the class action lawsuit argues that the effects of their actions have violated the plaintiffs’ constitutional rights and should be stopped.

The COVID-19 restrictions have created a situation in which things are permissible in one area, but not so just across a municipal boundary, making for an unequal burden on many small business owners. In some places, the lines of demarcation occur within a single municipality – between various zones that are outlined according to the current infection rates.

Reporting by the Staten Island Advance highlighted the situation there, where “yellow zones” and “orange zones” exist in the same borough, so that restaurants in the yellow zone can still operate as indoor dining facilities, but blocks away, those in the orange cannot. That kind of division treats the businesses unequally, the class action lawsuit says.

Saddling some businesses with a disproportionate share of the burden of closures to contain the spread of the coronavirus is unlawful, the plaintiffs and their legal team say.

“The end result of the state and city orders was the destruction of at least hundreds and more likely many thousands of businesses throughout New York City and New York State,” the class action lawsuit states.

The plaintiffs are asking the court for a jury trial and are seeking monetary damages from the state, the city, the governor and the mayor.

Has your business been shut down by New York’s COVID-19 restrictions? Are you at risk of losing your business entirely because of it? Tell us about it in the comment section below.

Lead plaintiffs Heidel, Ortega and Merolla and the proposed Class Members are represented by John G. Balestriere and Matthew W. Schmidt of Balestriere Fariello.

The COVID-19 Restrictions Class Action Lawsuit is Andrew Heidel, et al. v. Andrew Cuomo, governor of New York State, et al., Case No. 1:20-cv-10462, in the U.S. District Court for the Southern District of New York.

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