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SDNY COURTHOUSE,  Sept 2 –  The New York State Liquor Authority was sued by Cloister Cafe on 9th Street in the East Village, for violating its due process rights with regard to COVID-19 outdoor dining restrictions.

In the Complaint, Cloister Cafe noted an Aug 4 Gothamist article alleging they were hosting "illegal, illicit pandemic parties" based on an Instagram post by Kristina Alaniesse a/k/a KristinaForMayor.  

On August 28 U.S. District Court for the Southern District of New York Judge Lewis A. Kaplan held a proceeding. Inner City Press covered and live tweeted a thread, below.

 Now on September 2, in a literary ruling, Judge Kaplan has denied the Cafe a stay: "In ordinary times, spring is when life begins to emerge fromthe proverbial and actual snows of winter after months of hibernation. But in 2020, spring became a second and more deadly winter. It was a time when the world was required to engage in extraordinary social distancing measures to halt the spread of the COVID-19 pandemic... The Court does not mean to discount the plaintiffs’ belief that they were treated unfairly. But on this record, the most plausible inference is that the SLA acted rationally by suspending the plaintiffs’ liquor license in the interest of public safety when it possessed a not insubstantial amount of information that the plaintiffs were engaging in conduct that posed an imminent threat to the health and safety of New Yorkers. There is no evidence of which the Court is aware that the SLA singled out the plaintiffs or that any differential treatment was anything other than a mistake." The motion for a preliminary injunction was denied.

 Before the ruling Laetitia James filed this: "Re: The Cloister East, Inc. et al. v. New York State Liquor Authority et al., No. 20-cv-06545-LAK Dear Judge Kaplan, This Office represents Defendants the New York State Liquor Authority (the “SLA”), Vincent Bradley, Lily Fan, Greely Ford, Gary Meyerhoff, Margarita Marsico, Thomas Donohue, and Charles Stravalle in the above-referenced action. Pursuant to the Court’s directive at today’s oral argument on Plaintiffs’ motion for a preliminary injunction, I write to inform the Court that, upon further consideration, the SLA agrees that its Orders of Summary Suspension of License, issued pursuant to N.Y. Admin. Proc. Act § 401(3), can be subject to judicial review in New York State Supreme Court pursuant to Article 78 of the N.Y. Civil Proc. Law and Rules. If Plaintiffs commence an Article 78 proceeding in New York State Supreme Court seeking judicial review of the Order of Summary Suspension of License dated August 7, 2020 (the “August 7th Summary Suspension Order”), SLA further agrees that it will not raise as a defense or objection in point of law that such court lacks jurisdiction to review the August 7th Suspension Order on the grounds that it is a non-final order or otherwise. Given the availability of this state court review, the SLA contends that Plaintiffs cannot establish a likelihood of success on the merits on their due process claim, see, e.g., Hellenic Am. Neighborhood Action Comm. v. City of N.Y., 101 F.3d 877, 881 (2d Cir. 1996), and/or that Younger abstention should apply, and for this reason and those set forth in their submissions in opposition to the motion, Plaintiffs’ motion for a preliminary injunction should be denied. The parties have conferred, and Plaintiffs intend to submit a separate letter stating their position." Watch this site.

Judge Kaplan: The SLA has the whip hand. The applicants' choices are, make a deal with the SLA or go out of business. People should be presumed innocent, including those cited by the SLA for alleged violations... 

Judge Kaplan: That people negotiate with the SLA doesn't prove the Constitution has been satisfied. 

NYS lawyer Ben Liebowitz: If they had asked for a post deprivation hearing, they could already be having one.... Under Section 54 of Title 9 of NYC CRR... 

Judge Kaplan: Let's get to the real world. These are four brothers who've operated a business for a long time. After a time they operated under the name of a defunct corporation. I have a pretty good idea who the shareholders are: the Drobenko brothers. 

[Inner City Press note: it's now Cafe Tucano.]

Now Cloister Cafe's lawyer: When it comes to the Gansevoort Hotel, a few photos are enough. But in this case, they're not. It doesn't make any sense. 

Judge Kaplan: That all of you. I will expect a letter today. Ideally, it would be one agreed to by both sides. If possible, the plaintiff should say it is satisfied it has a remedy. For now I will reserve decision. When I hear from you, I will rule if necessary. 

The case is The Cloister East, Inc. v. New York State Liquor Authority, 20-cv-6545 (Kaplan).

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