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Judge strikes down 10 p.m. curfew for 91 bars, restaurants in western New York

Georgie Silvarole
New York State Team

A state judge lifted New York's 10 p.m. bar and restaurant curfew for 91 establishments in Erie and Monroe counties after they filed a lawsuit last week in an attempt to strike it down.

Acting Supreme Court Justice Timothy Walker of Erie County ruled Friday that the curfew, which Gov. Andrew Cuomo enacted in a November executive order, is likely unconstitutional and violates restaurant owners' equal protection rights. 

Walker issued a temporary restraining order that lifts the curfew while the court case proceeds, but only for those bars and restaurants that are plaintiffs in the lawsuit.

In his decision, Walker said the restaurants successfully demonstrated a reasonable likelihood that they "will suffer irreparable harm" if Cuomo's curfew remains in place. 

It was not immediately clear Friday afternoon how Cuomo's office would interpret the ruling. After a similar ruling struck down "Orange Zone" restrictions for certain western New York restaurants last month, Cuomo decided to apply the ruling statewide to eliminate confusion.

At a press briefing Friday before the ruling was widely known, Cuomo was asked whether he is considering lifting the 10 p.m. curfew for Super Bowl Sunday, as some restaurants and tavern owners have requested.

"No, we're not thinking about changing the curfew for Super Bowl Sunday," Cuomo said. "Maybe if the (Buffalo) Bills were in the Super Bowl it'd be a different conversation. Just kidding."

Most of the restaurants and bars named in the lawsuit are based in the Buffalo area. Some others, like The Peppermill Restaurant and Rookie's Sports Bar, are located within Monroe County. You can read the full list here.

State Sen. Pam Helming, R-Canandaigua, Ontario County, called Walker's ruling "good news." She called on Cuomo to apply it to the whole state.

"These businesses have been among the hardest hit during the pandemic," Helming said in a statement. "One of the best ways the state can help these owners and their employees is by allowing their businesses to open and stay open."

And Melissa Fleischut, president and CEO of the New York State Restaurant Association, called the order "a big win" for those select restaurants in Western New York — but argued it creates an unfair playing field for everyone else.

"We now have another patchwork system of restrictions ... (that) all adds up to a competitive disadvantage for an industry that is barely hanging on," Fleischut said in a statement Friday. "We’re pleading with Governor Cuomo to push back the curfew and allow indoor dining until at least midnight."

GSILVAROLE@Gannett.com