Summary
denying claim predicated upon "the purported absence of post-deprivation remedies under the existing regulatory framework for enforcement of the EOs" due to the availability of Article 78 review
Summary of this case from Chrysafis v. MarksOpinion
No. 20-CV-2153
2020-05-15
OMNISTONE CORP. and Sandro Mannarino, on behalf of themselves and all others similarly situated, Plaintiffs, v. Andrew CUOMO, in his personal and official capacity as Governor of The State of New York, New York State and Nassau County, Defendants.
Israel Dov Weinstein, Jacob Zev Weinstein, Weinstein & Weinstein, LLP, Flushing, NY, E. David Smith, Smith & Associates, Clifton, NJ, for Plaintiffs. Patricia M. Hingerton, Robert Edward Morelli, Office of the New York State Attorney General, Hauppauge, NY, for Defendant Andrew Cuomo. Robert Edward Morelli, Office of the New York State Attorney General, Hauppauge, NY, for Defendant New York State. Laurel R. Kretzing, Liora M. Ben-Sorek, Nassau County Attorney's Office, Mineola, NY, for Defendant Nassau County.
Israel Dov Weinstein, Jacob Zev Weinstein, Weinstein & Weinstein, LLP, Flushing, NY, E. David Smith, Smith & Associates, Clifton, NJ, for Plaintiffs.
Patricia M. Hingerton, Robert Edward Morelli, Office of the New York State Attorney General, Hauppauge, NY, for Defendant Andrew Cuomo.
Robert Edward Morelli, Office of the New York State Attorney General, Hauppauge, NY, for Defendant New York State.
Laurel R. Kretzing, Liora M. Ben-Sorek, Nassau County Attorney's Office, Mineola, NY, for Defendant Nassau County.
ORDER
GARY R. BROWN, United States District Judge:
On May 12, 2020, plaintiffs Omnistone Corp. and Sandro Mannarino filed a complaint in this action challenging the application of certain Executive Orders ("EOs") issued by the Governor of the State of New York aimed at controlling and combatting the present ongoing public health emergency related to the COVID-19 pandemic. The action, which purports to be on behalf of plaintiffs as well as a class, seeks, as relevant here, temporary and permanent injunctive relief regarding the enforcement of the subject EOs. By this Order, the Court DENIES the request for a temporary restraining order, as plaintiffs plainly fail to demonstrate irreparable harm or satisfy the balance of the hardships test in the immediate term. Further, the Court sets out a schedule and procedure for consideration of plaintiffs’ application for a preliminary injunction.
Specifically, plaintiffs challenge Executive Orders 202.6 and 202.8. Docket Entry ("DE") 1 at ¶ 5.
BACKGROUND
According to the complaint, plaintiffs are in "the business of cutting, shaping, and installing stone countertops, floors, and the like for both residential and commercial use," a business they have operated for seventeen years. DE 1 at ¶¶ 23, 24. The plaintiffs operate "within a 4,000 square foot facility in which all employees must wear protective head, face, eye, ear, and hand coverings at all times," with "significant space between workstations." Id. at ¶¶ 29, 30. Plaintiffs employ seven employees, "trained in the proper manner in which to wear the above-described safety equipment" and require a minimum of four to be present in the facility to carry out any business. Id. at ¶¶ 26, 27, 32.
The complaint seems to suggest that plaintiffs continued to operate after the issuance of the EOs on March 18th and 20th, 2020, notwithstanding the fact that the EOs, effectively closed down a wide range of non-essential businesses. Then, "[o]n May 1, 2020, the COUNTY Fire Marshal issued an Order to Vacate Forthwith, pursuant to EO 202.8, which unilaterally states that OMNISTONE is a ‘nonessential business’ that must ‘cease operation until further notice pursuant to New York State Executive Order 202.8.’ " Id. at ¶ 33. Plaintiffs believe that their business should be considered essential, "as homes cannot be completed without the properly cut stone to fit a sink in the countertop or a safe floor to walk upon." Id. at ¶ 37. As such, plaintiffs made electronic submissions to New York State for consideration of these issues, but "all [plaintiff Mannarino] received was am [sic] automated email reply with no way to appeal or address PLAINTIFFS specific circumstances." Id. at ¶ 36. The complaint asserts that these allegations comprise a panoply of constitutional violations, including claims rooted in the Due Process Clause, the Contracts Clause, and the Interstate Commerce Clause, and constitute an unlawful taking of property under the Fifth Amendment of the United States Constitution. Id. at 12-18.
The response received, attached to the complaint, seems to have been generated by plaintiffs’ specific query about a customer who needed a kitchen sink installed, which suggests that it was more than simply a form response. See DE 1, Ex. 4. In fact, that automated response states that "Based on the information that you have provided, construction is an essential business and/or supports an essential business and therefore is not subject to the required 100% workforce reduction to the extent that ... the construction is necessary to protect the health and safety of occupants of a structure." Id. Thus, the plain language of the attachment raises questions about plaintiffs’ characterization of the process.
On May 13, 2020, plaintiffs filed an emergency motion for a temporary restraining order and a preliminary injunction. DE 8. The specific proposed relief includes a temporary injunction enjoining defendants from "[e]nforcing Executive Order 202.6 and 202.8 and any of their progeny against Plaintiffs and anyone in the purposed Plaintiff Class," and that "Plaintiffs shall be permitted to re-open business effective immediately." DE 8, Ex. 3.
DISCUSSION
As this Court has previously observed:
A party seeking preliminary injunctive relief must demonstrate
(1) irreparable harm absent injunctive relief; (2) either a likelihood of success on the merits, or a serious question going to the merits to make them a fair ground for trial, with a balance of hardships tipping decidedly in the plaintiff's favor; and (3) that the public's interest weighs in favor of granting an injunction. Red Earth LLC v. United States, 657 F.3d 138, 143 (2d Cir. 2011). The Court has "wide discretion in determining whether to grant a preliminary injunction," as it is "one of the most drastic tools in the arsenal of judicial remedies." Grand River Enter. Six Nations, Ltd. v. Pryor, 481 F.3d 60, 66 (2d Cir. 2007).
Cablevision Sys. Corp. v. Verizon New York Inc., 119 F. Supp. 3d 39, 50 (E.D.N.Y. 2015).
In their papers, plaintiffs state that the standard for granting a temporary restraining order and a preliminary injunction are the same. While technically true, there are differences between these procedural devices that prove fatal to plaintiffs’ motion for a temporary restraining order. In considering the need for immediate relief, plaintiffs’ demonstration of irreparable harm must be considered in conjunction with the time frame involved. In other words, the Court must examine whether the movants have demonstrated a threat of irreparable harm that will occur immediately to justify a temporary restraining order, while the temporal context of a preliminary injunction takes a longer view. "The court may issue a temporary restraining order ... only if ... specific facts in an affidavit or a verified complaint clearly show that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition." Fed. R. Civ. P. 65(b)(1) ; see also Pan Am. World Airways, Inc. v. Flight Engineers’ Int'l Ass'n, PAA Chapter, AFL-CIO , 306 F.2d 840, 842 (2d Cir. 1962) ("The purpose of a temporary restraining order is to preserve an existing situation in status quo until the court has an opportunity to pass upon the merits of the demand for a preliminary injunction.").
Here, the plaintiffs request that this Court enjoin enforcement of important government efforts aimed at stemming a public health emergency. The only "irreparable harm" presented by counsel is the suggestion—only inferentially supported by the factual material submitted—that plaintiffs risk "losing skilled workers due to lack-of-work." DE 8-1 at 9. While this decision does not reach whether this issue could support some form preliminary injunctive relief, one thing is clear: this risk, when considered in the context of the coming days, is far too speculative to justify the relief requested.
Turning to whether there are "serious question[s] going to the merits to make them a fair ground for trial," many of the issues raised by counsel in support of the temporary restraining order cannot even qualify as legitimate issues. For example, in the midst of a catastrophic global pandemic of a kind not seen for more than a century, it is difficult to imagine how counsel could argue that that "the EO does not serve a legitimate public purpose" in support of plaintiffs’ Contract Clause claim. DE 8-1 at 10. Indeed, plaintiffs’ allegation in the complaint that enforcement of the EO has successfully "flattened the curve" belies this assertion. See DE 1 at ¶ 40. Much the same could be said about the suggestion regarding the Interstate Commerce Clause claim, in support of which counsel contends that the EO "imposes a burden on interstate commerce incommensurate with the local benefits secured." DE 8, Ex. 1 at 11. When movants seek to compare preventing widespread sickness and death to their right to sell stone countertops, not much reflection is required to resolve whether this presents a serious question.
The most significant, and perhaps the only serious, issues raised by plaintiffs revolve around the Due Process and Fifth Amendment questions concerning the purported absence of post-deprivation remedies under the existing regulatory framework for enforcement of the EOs. In this regards, two observations bear noting. First, on the record before the Court, it is unclear as to whether there is, in fact, an absence of post-deprivation remedies concerning the classification of business activity under the EOs. See supra note 2. Second, plaintiffs’ moving papers make no reference to the availability vel non of relief under Article 78 of the New York CPLR. As then-District Judge Bianco observed:
As the Second Circuit has emphasized, "[t]his court has held on numerous occasions that where, as here, a party sues the state and its officials and employees for the arbitrary and random deprivation of a property or liberty interest, an Article 78 proceeding is a perfectly adequate postdeprivation remedy." Grillo v. N.Y.C. Transit Auth. , 291 F.3d 231, 234 (2d Cir. 2002) (internal quotations and citation omitted). Thus, regardless of whether plaintiffs have a protected property interest and although they plausibly allege that the Town did not follow the predeprivation procedures in the Town
Code, plaintiffs’ ability to force the reopening of their store shows that the procedures under Article 78 are more than adequate postdeprivation remedies for the purposes of due process.
Ahmed v. Town of Oyster Bay , 7 F. Supp. 3d 245, 254 (E.D.N.Y. 2014). The parties would be well advised to focus on these issues in any additional filings.
In any event, based upon the absence of a showing of immediate irreparable harm, or the demonstration of a balance of the equities shifting in plaintiffs’ favor in the near term, the motion for a temporary restraining order is DENIED. The Court will, however, enter a reasoned schedule for review of plaintiffs’ claims for preliminary relief.
Upon receiving the motion papers, the New York State Attorney General's Office requested until May 20, 2020 to submit responsive papers. DE 10. Plaintiffs’ counsel responded by demanding – without good cause – that the Attorney General be given only 24 hours to respond. DE 11. Given the important issues at stake, such conduct will not be countenanced.
CONCLUSION
Based on the foregoing:
1. Plaintiffs’ motion for a temporary restraining order is DENIED in all respects.
2. Defendants shall submit all responsive briefs (limited to no more than 20 pages) and factual materials by close of business on May 20, 2020.
3. Plaintiffs may submit a reply memorandum and any additional factual submissions on or before May 22, 2020.
4. The Court will hear oral argument of the motion for a Preliminary Injunction on May 26, 2020 at 11 a.m. Given current restrictions, that conference will be held via audioconference. The parties shall meet and confer on the question of whether testimonial evidence need be taken, and if so, if a videoconference will be required. A request for videoconferencing must be made to the Court on or before May 21, 2020.