Wedding Venues Lawsuit 2

Case 1:20-cv-01001-FJS-TWD Document 2-2 Filed 08/28/20 Page 1 of 27
UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK
__________________________________________
BILL & TED’S RIVIERA, INC., and
PARTITION STREET PROJECT, LLC,
on behalf of themselves and all other similarly
situated individuals,
Plaintiffs,
MEMORANDUM OF LAW IN
SUPPORT OF PLAINTIFFS’ MOTION
FOR A PRELIMINARY INJUNCTION
AND CLASS CERTIFICATION
-against-
ANDREW M. CUOMO, LETITIA JAMES, Civil No. 1:20-cv-1001 (FJS/TWD)

GREELEY T. FORD, EMPIRE STATE
DEVELOPMENT CORPORATION,
NEW YORK STATE LIQUOR AUTHORITY
Defendants.
__________________________________________
RUPP BAASE PFALZGRAF CUNNINGHAM LLC

Attorneys for Plaintiffs
R. Anthony Rupp III, Esq.
Bar Roll # 502559
Phillip A. Oswald, Esq.
Bar Roll # 519974
Michael Brandi, Esq.
Bar Roll # 700481
25 Walton Street
Saratoga Springs, New York 12866
(518) 886-1902
TABLE OF CONTENTS
Page No.
PRELIMINARY STATEMENT ..................................................................................... 1
STATEMENT OF FACTS .............................................................................................. 3
POINT I
PLAINTIFFS ARE ENTTILED TO A PRELIMINARY INJUNCTION ........... 4
A. Identified Class Members are Suffering Irreparable Harm ................ 5
B. Plaintiffs are Likely to Prevail on the Merits of Their

Equal Protection Claim ...................................................................... 6
I. Plaintiffs Satisfy the Similarly-Situated Requirement .............. 7
II. There is No Rational Basis for Treating the Plaintiffs

Differently Based on the Purpose for the Dining ..................... 9
i. Less Turnover of Guests is a Mitigating Factor

for Weddings ...................................................................... 10
ii. Wedding Guests arriving and Leaving at the

Same Time ........................................................................ 11
iii. Singing and Shouting........................................................ 12
iv. Mingling and Direct Interaction Among Guests............... 13
v. Anticipated Compliance Does Not Provide a

Rational Basis for the State’s Difference in Treatment .... 14
C. Balance of Equities Weighs in Favor of the Plaintiffs ....................... 16
D. The Public Interest is Served by Issuing a Preliminary Injunction .... 17
POINT II
JACOBSON V. MASSACHUESETTS DOES NOT AFFECT THIS

COURT’S ANALYSIS ........................................................................................ 18
ii
Page No.
POINT III
THE PROPOSED CLASS SHOULD BE CERTIFIED ...................................... 19
A. The Proposed Class is so Numerous that Joinder of

all Members is Impractical................................................................. 19
B. All Questions of Law are Common to the Proposed

Plaintiff Class ..................................................................................... 20
C. The Claims of the Named Plaintiffs are Typical of the Claims

of the Proposed Plaintiff Class ........................................................... 21
D. The Named Plaintiffs will Fairly and Adequately Protect the

Interests of the Proposed Class .......................................................... 22
E. This Action Meets the Requirements of Rule 23(b)(2) of the

Federal Rules of Civil Procedure ....................................................... 22
CONCLUSION ................................................................................................................ 24
iii
PRELIMINARY STATEMENT
For six months the citizens of New York have had to learn to adapt to life with
COVID. During that time, we have learned much about how the virus spreads, including
activities and behaviors that increase the potential spread of the virus. More than two months
ago, the state issued guidance that permitted the plaintiffs in a Phase 3 region to allow indoor
dining up to 50% of the maximum occupancy for the restaurant as set by the certificate of
occupancy. The state issued this guidance believing that indoor dining was safe as long as
individuals wore masks and maintained appropriate social distancing when they left the table.
The proposed class consists of restaurants and venues throughout the state that, when hosting
guests for an ordinary dining experience, are able to host up to 50% of its maximum occupancy.
However, when the plaintiffs seek to host guests for a wedding dinner, the state arbitrarily
enforces its 50-person limit — despite that the same social distancing and hygiene precautions
are in place.
The state’s refusal to allow wedding dinners at 50% capacity — while allowing
far riskier activities to proceed — is the very definition of an equal protection violation.
Plaintiffs’ claims fall squarely within the ambit of the recent holding by Chief United States
District Judge of the Northern District of New York, Judge Glenn T. Suddaby, who held there
was “no rational basis for this State’s difference in treatment between use of the venues in
question for ordinary dining and use of those venues for weddings.” DiMartile v. Cuomo, No.
1:20-CV-0859, 2020 WL 4558711 (N.D.N.Y. Aug. 7, 2020) (Suddaby, C.J.). In other words,
Judge Suddaby found there is no plausible reason for the state to enforce a capacity limit on
weddings that is more onerous than what is applied to the plaintiffs for ordinary restaurant
1
service. Judge Suddaby’s holding came before the state announced its decision to allow students
to return to school and before the state allowed museums, bowling alleys, and gyms to open.
Named plaintiffs, Partition Street Project, LLC and Bill & Ted’s Riviera, Inc.,
seek to certify a class pursuant to F.R.C.P. 23(b)(2) to include all similarly-situated restaurants
and venues throughout New York State that have been arbitrarily forced to limit wedding dinners
to 50 people or less, despite implementing and enforcing the same public health guidelines in
place when they operate as restaurants and dining establishments. The plaintiffs seek a
preliminary injunction that prohibits the state from enforcing its 50-person limit when the
plaintiffs seek to host a wedding dinner. This merely would allow the plaintiffs to host up to
50% of the venue’s maximum capacity, which the state deems safe when the plaintiffs operate
the same venues as restaurants. Class certification is the proper and well-established means of
efficiently addressing civil rights violations, where, as here, declaratory and injunctive relief is
necessary to foreclose the likelihood of future harm.
Accordingly, for the reasons discussed at greater length below, Plaintiffs
respectfully request that this Court grant their motion for class certification, certify a class
pursuant to Rule 23(b)(2), and simultaneously issue a preliminary injunction enjoining the
defendants from enforcing the state’s 50-person “non-essential” gathering limit when the
plaintiffs seek to host a wedding that complies with all COVID-regulations in place when the
plaintiffs operate as a restaurant.
2
STATEMENT OF FACTS
On March 7, 2020, Defendant Governor Andrew Cuomo (“Cuomo”) issued
Executive Order 202 (“Order 202”) which, in relevant part, declared a State Disaster Emergency
for the State of New York based on the presence of travel-related cases and community
transmission of COVID-19 in the state. Subsequently, Cuomo issued a flurry of additional
executive orders, all premised on the finding in Order 202 that COVID-19 had been documented
in the state and was expected to continue.
Relevant to this action, on March 23, with Executive Order 202.10, Cuomo
decreed a total ban on all “non-essential gatherings of any size for any reason.” This ban
remained in effect until Cuomo began to relax it by allowing certain limited religious gatherings
of up to 10 people on May 21, pursuant to Executive Order 202.32. Cuomo continued to relax
the restrictions on May 22 with Executive Order 202.33, which allowed “non-essential”
gatherings of up to 10 people. On June 2, with Executive Order 202.36, Cuomo continued the
10-person limit on non-essential gatherings, but allowed unlimited gatherings to commence in
areas such as state beaches, construction, banking, government services, news media,
manufacturing, certain retail, and other services in support of these industries.
On June 15, with Executive Order 202.42, Cuomo again slightly relaxed the
restriction on “non-essential” gatherings by allowing up to 25 people to gather so long as their
region has reached Phase 3 of the state’s phased reopening plan. The 50-person limit that is the
subject of this action was imposed by Executive Order 202.45, issued by Cuomo on June 26,
2020. However, defendants have carved out thousands of exceptions to the 50-person limit by
allowing restaurants and food-service establishments in Phase 3 regions to operate up to 50% of
the maximum occupancy of a given restaurant, even if more than 50 people.
3
The enforcement of the 50-person limit against weddings and the simultaneous
exceptions carved out for restaurant dining represents an arbitrary and irrational scheme by
which Plaintiffs are limited — on pain of criminal and administrative penalty — in the amount of
patrons they can admit, merely because one group endeavors to have dinner for a wedding. This
arbitrary distinction is enforced by defendants despite weddings being subject to the same social-
distancing and hygiene precautions that are imposed on restaurant service. Simply, the crux of
this case is that there is no rational basis for imposing a 50-person limit on a venue that otherwise
is permitted to serve dinner to well over 50 members of the general public.
POINT I
PLAINTIFFS ARE ENTITLED TO A PRELIMINARY INJUNCTION
To obtain a preliminary injunction, plaintiffs must demonstrate: (1) irreparable
injury; (2) a likelihood of success on the merits; (3) a balance of equities tipping in the moving
party’s favor; and (4) that the public interest would not be disserved by injunctive relief.
See Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008); Glossip v. Gross, 576 U.S. 863,
876 (2015); Citigroup Global Markets, Inc. v. VCG Special Opportunities Master Fund Ltd.,
598 F.3d 30, 35 n.4 (2d Cir. 2010). For the reasons explained below, the plaintiffs satisfy each
of these four elements required to issue a preliminary injunction. Therefore, this Court should
issue an order enjoining enforcement of the 50-person limit when the plaintiffs host a wedding
that complies with all applicable guidance in place when they operate as a restaurant.
4
A. Identified Class Members are Suffering Irreparable Harm.
The Second Circuit has repeatedly found that the showing of irreparable harm “is
the single most important prerequisite for the issuance of a preliminary injunction.” Rodriguez
ex rel. Rodriguez v. DeBuono, 175 F.3d 227, 233-34 (2d Cir. 1999); accord Yang v. Kosinski,
960 F.3d 119, 128 (2d Cir. 2020). The court can presume irreparable injury where it is alleged
that a constitutional right has been violated. See, e.g., Yang, 960 F.3d at 128; Beal v. Stern, 184
F.3d 117, 123-24 (2d Cir. 1999) (presuming irreparable harm and proceeding directly to
likelihood-of-success standard where constitutional right violations were alleged); Jolly v.
Coughlin, 76 F.3d 468, 482 (2d Cir. 1996) (“it is the alleged violation of a constitutional right
that triggers a finding of irreparable harm,” as such “a harm that cannot be adequately
compensated monetarily”) (emphasis in original) (citations omitted).
As explained below, plaintiffs are able to show a likelihood of success on the
merits for their equal protection claim, which merits a presumption of irreparable harm. Indeed,
analogous to Jolly, it is proper for this Court to presume irreparable injury by the mere fact that
the plaintiffs allege in their complaint a violation of their equal protection rights. As the Second
Circuit held in Jolly, it is beyond question that the denial of plaintiffs’ equal protection rights “is
a harm that cannot be adequately compensated monetarily.” Thus, by demonstrating below a
likelihood of success regarding plaintiffs’ equal protection claim, this Court may similarly find
that plaintiffs have made a “strong” showing of irreparable harm. See Yang, 960 F.3d at 128.
In addition, Second Circuit courts have held that the “significant possibility” that
plaintiffs may be driven out of business in the period before a trial can be held is sufficient to
find that the irreparable harm prong has been satisfied. Buffalo Courier-Express, Inc. v. Buffalo
Evening News, Inc., 601 F.2d 48, 58 (2d Cir. 1979) (“[t]here can be no doubt that if the
5
[applicant] had shown a significant possibility that it would be driven out of business in the
period before a trial could be held, the Hamilton-Benrus test would have been amply passed”).
Indeed, the Second Circuit has expanded the Hamilton test to include “major disruption of
business” and a “threat to the continued existence of a business.” Nemer Jeep-Eagle, Inc. v.
Jeep Eagle Sales Corp., 992 F.2d 430, 435-36 (2d Cir. 1993) (emphasis in original).
Here, the plaintiffs allege in their complaint that the 50-person limit has resulted
in devastating economic loss, and that each day the 50-person limit is allowed to exist for
wedding dinners plaintiffs are at further risk of permanently shutting their doors. Even if the
plaintiffs were to win this case at trial, restaurants and venues throughout New York State may
not be able to return due to the significant financial harm caused by the 50-person limit. Thus,
the plaintiffs have made a strong showing of irreparable harm on this basis as well.
B. Plaintiffs are Likely to Prevail on the Merits of Their

Equal Protection Claim.
The Constitution guarantees to all persons the “equal protection of the laws,”
and this right means that the government must treat similarly-situated individuals in the same
manner. U.S. Const. Amend. XIV, § 1; City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S.
432, 439 (1985) (“[t]he Equal Protection Clause . . . is essentially a direction that all similarly
situated persons should be treated alike”). The Supreme Court recognized in Olech that equal
protection claims may be brought by a “class of one” “where the plaintiff alleges that she has
been intentionally treated differently from others similarly situated and that there is no rational
basis for the difference in treatment.” See Willowbrook v. Olech, 528 U.S. 562, 564 (2000);
Analytical Diagnostic Labs, Inc. v. Kusel, 626 F.3d 135, 140 (2d Cir. 2010). The class-of-one
claim protects every person within the state’s jurisdiction “against intentional and arbitrary
6
discrimination, whether occasioned by express terms of a statute or by its improper execution
through duly constituted agents.” Olech, 528 U.S. at 564 (emphasis added) (citations omitted).
To prove their equal protection claim under a class-of-one theory, the plaintiffs must show only a
high degree of similarity between themselves and the persons with whom they compare
themselves, and proof of the “defendant’s subjective ill-will” is not required. Hu v. City of New
York, 927 F.3d 81, 93 (2d Cir. 2019).
Here, the plaintiffs easily satisfy each of the necessary class-of-one elements.
First, the plaintiffs are similarly-situated because the comparator is the plaintiffs’ own venue
when it functions as a restaurant and other restaurants (Sub-point I, infra). Second, the state’s
difference in treatment when the plaintiffs seek to host a wedding under the same guidelines in
place for restaurants has no rational basis (Sub-Point II, infra).
I. Plaintiffs Satisfy the Similarly-Situated Requirement.
Although Olech did not define “similarly situated,” it is clear from other decisions
from the Supreme Court and the Second Circuit that “similarly situated” means “similarly,”
rather than “identically.” See, e.g., Cleburne v. Cleburne Living Center, 473 U.S. 432, 447-450
(1985) (holding that requiring special permit for group home for the intellectually disabled
violated equal protection when a permit was “not require[d] . . . for apartment houses, multiple
dwellings, boarding and lodging houses, fraternity or sorority houses, dormitories, apartment
hotels, hospitals, sanitariums, nursing homes for convalescents or the aged”); Third Church of
Christ v. New York City, 626 F.3d 667, 670 (2d Cir. 2010) (holding that hotels’ catering was
“similarly situated” to church’s catering). Indeed, this principle was reaffirmed by the Second
7
Circuit in a class-of-one analysis. See Fortress Bible Church v. Feiner, 694 F.3d 208, 221-224
(2d Cir. 2012). In that case, the court held:
The Church’s use of multiple comparators is unusual . . . We

conclude, however, that the Church’s evidence of several other
projects treated differently with regard to discrete issues is
sufficient . . . to support a class-of-one claim . . . [T]he Church has
presented overwhelming evidence that its application was singled
out by the Town for disparate treatment. Though each of the
comparator projects involved features unique to that proposal, the
Town has not explained how those other features could have
influenced discrete issues like the adequacy of parking, the safety
of retaining walls, or increased traffic . . . [W]here, as here, a
decision is based on several discrete concerns, and a claimant
presents evidence that comparators were treated differently with
regard to those specific concerns without any plausible
explanation for the disparity such a claim can succeed . . . We
affirm the district court’s conclusion that the Church has
adequately established a class-of-one Equal Protection claim . . .”
Fortress Bible Church, 694 F.3d at 221-224 (emphasis added); see also LaTrieste Restaurant &
Cabaret v. Village of Port Chester, 40 F.3d 587, 590 (2d Cir. 1994) (finding that comparator
properties were similarly-situated — even though they had different zoning classifications and
also were a different type of business — because those purported differences did not explain the
government’s differential treatment).
Here, the similarly-situated requirement for the class-of-one category has easily
been met. This case presents a unique situation where the venue is the same and the activity —
dining — is the same. To explain, when the plaintiffs seek to host patrons for an ordinary
dining experience, the state allows — and, in fact, for economic reasons, encourages — the
plaintiffs to host up to 50% of the venue’s capacity. However, when the plaintiffs want to host
wedding guests who want to dine at the same restaurant, and participate in the same activity —
dining — the state enforces its 50-person limit against the plaintiffs and their guests. Such an
arbitrary distinction based on the purpose for the dining — a wedding versus non-wedding
8
dining — is a denial of equal protection of the laws in the most literal sense. The state cannot
credibly argue that plaintiffs do not satisfy the similarly-situated requirement.
Further, the state has recently passed guidance that allows significantly riskier
activities than weddings — including bowling alleys, museums, and gyms — all of which are
permitted by the state to operate at capacities far greater than 50 people. (Delgado Decl. at ¶21-
26, 32-34). This Court should also take notice of the fact that, in less than two weeks, schools
throughout the state will be allowed to open for in-person instruction. Although in isolation
these comparators may be insufficient for the plaintiffs to rely upon for their class-of-one claim,
these examples are certainly relevant under Second Circuit precedent for plaintiffs’ equal
protection claim. See Fortress Bible Church, 694 F.3d at 221-224.
II. There is No Rational Basis for Treating the Plaintiffs Differently

Based on the Purpose for the Dining.
If history repeats itself, the state will rely upon four distinctions that it claims
differentiates ordinary dining from a dining for the purpose of a wedding. In DiMartile v.
Cuomo, the state contended that: (1) weddings last much longer and involve larger groups than
non-wedding dining; (2) weddings typically involve many people arriving or leaving at the same
time than does non-wedding dining; (3) gatherings where people raise their voices, sing, or shout
increase the risk of transmission of COVID-19; and (4) weddings involve more direct interaction
and mingling than non-wedding dining. DiMartile v. Cuomo, 1:20-CV-0859, 2020 WL
4877239, at *4 (N.D.N.Y. Aug. 19, 2020). In addition, the state will generally argue that the
difference in treatment is permissible because the state assumes that individuals who attend
weddings will not follow social distancing and mask requirements. Id. at *5. However, not one
9
of these contentions by the state provides a rational basis for treating non-wedding dining
different from dining for the purpose of celebrating a wedding.
i. Less Turnover of Guests is a Mitigating Factor for

Weddings.
Regarding the state’s first contention — weddings last much longer and involve
larger groups than ordinary restaurant dining — Judge Suddaby correctly found that “logic
suggests that putting a rotating group [of] hundreds of different of people in a space over the
course of a night would be more likely to result in COVID-19 exposure than having a [wedding
group] in the room for the whole night.” DiMartile v. Cuomo, 1:20-CV-0859, 2020 WL
4877239, at *4 (N.D.N.Y. Aug. 19, 2020). Indeed, the recent guidance from the state’s
Department of Health regarding the re-opening of schools demonstrates that the defendants
actually agree with this logic.1 The state’s argument in the DiMartile case that it is safer having
discrete smaller groups of people coming and going in a restaurant compared to a large group of
wedding guests for multiple hours is as self-serving, as it is divorced from logic and science.
(See Delgado Declaration at ¶¶17-20) The fact that guests will be present at a wedding for
longer periods of time does not present a heightened risk because under applicable protocols
when the plaintiffs operate as a restaurant, those guests will be required to wear a mask and
practice social distancing when not seated at their own table.
Moreover, as the explained in the Delgado Declaration, a defined guest list for
weddings allows for contact tracing and assists health authorities in reducing the spread of
1
https://www.governor.ny.gov/sites/governor.ny.gov/files/atoms/files/Pre-
K_to_Grade_12_Schools_MasterGuidence.pdf (at page 12, “Responsible parties should make
reasonable efforts to ensure that cohorts are fixed – meaning contain the same students – for the
duration of the COVID-19 public health emergency.”)
10
COVID. (See Delgado Declaration at ¶¶17-20) For instance, if an individual were to contract
COVID during restaurant operations, the plaintiffs might, at most, be able to provide a list of
individuals who made reservations. However, at a wedding, the plaintiffs would be able to
provide a list with every person who attended. The defendants cannot credibly refute this logic.
ii. Wedding Guests Arriving and Leaving at the Same Time.
Judge Suddaby found that “the fact that patrons arrive and leave at the same time
for a wedding does not constitute a significant difference from ordinary dining.” DiMartile v.
Cuomo, 1:20-CV-0859, 2020 WL 4877239, at *5 (N.D.N.Y. Aug. 19, 2020). In fact, as
explained in DiMartile, the state failed to consider that large amounts of people arrive at roughly
the same time for ordinary restaurant dining, particularly during peak dining hours. Id. Further,
the guidance in place requires wedding guests to also socially distance and wear face coverings
when entering and leaving the venue. The state provides no rational explanation why these
measures are insufficient in the context of a wedding, but sufficient when the plaintiffs operate as
a restaurant. Id. at *5; see also Delgado Declaration at ¶¶17-20.
Even if this Court were to entertain the state’s concern, the state is required to
explain why it allows schools to implement a staggered arrival and pick-up times to facilitate
proper social distancing, but does not allow the plaintiffs to implement this simple, common-
sense solution to address the discrete issue raised by the state.2 The state trusts school officials to
implement a staggered schedule for arriving and leaving, but refuses to extend that same trust to
the plaintiffs who would be personally liable for enforcing the relevant restrictions imposed by
2
The state recommends, but does not require, that school officials implement staggered arrival
and pick-up times to facilitate proper social distancing. This certainly calls into question the
seriousness of the state’s concern on this issue. Id. at 11
11
the defendants. The difference in trust extended to school officials and venue owners is
irrational, and does not pass muster under rational basis review.
iii. Singing and Shouting.
Similarly, with respect to the state’s third contention — that wedding guests will
shout, sing, and raise their voices — the state does not explain why the current guidance in place
that requires masks to be worn in settings where individuals might raise their voice is not
sufficient.3 When comparing the state’s treatment of schools opening in the fall, the Department
of Health’s guidance acknowledges that schools offer a variety of extracurricular programs and
services, and merely requires that school officials reference “industry-specific” guidelines
provided by the state for operations of food services, office workspaces, transportation, and other
activities.4 For instance, the state recommends, but does not require, that school officials
maintain a distance of twelve feet in all directions between individuals while participating in
activities that require projecting their voice (e.g., singing), playing a wind instrument, or aerobic
activity resulting in heavy breathing (e.g., participating in gym classes).5 The state must explain
why similar measures cannot be implemented by the plaintiffs when hosting a wedding.
3
https://www.cdc.gov/coronavirus/2019-ncov/community/large-events/considerations-for-
events-gatherings.html (“Masks are strongly encouraged in settings where individuals might
raise their voice (e.g., shouting, chanting, singing).”)
4
K_to_Grade_12_Schools_MasterGuidence.pdf (at page 6).
5
Again, the fact that the state does not require schools to implement a policy that requires
individuals maintain a distance of twelve feed between individuals while participating in
activities where individuals might raise their voice is telling as to the state’s real level of concern
regarding this discrete issue raised in opposition to weddings. Id. at 10.
12
iv. Mingling and Direct Interaction Among Guests.
Regarding the state’s fourth contention — that there is a greater risk of
“mingling” and direct interaction among guests — it must be remembered that the applicable
protocols require that guests wear a mask and practice social distancing when not seated at their
own table, just as it is required when the plaintiffs operate as a restaurant. Plaintiffs have
complied — and agree to continue to comply — with these protocols. The state has not
explained why wearing a mask and maintaining six feet of distance between individuals when
wedding guests leave their table to “mingle” is insufficient to remediate this concern.
Moreover, the state has allowed many businesses to open and gatherings to take
place that involve a far greater risk of “mingling” or close contact with others. For instance, the
state recently allowed museums in New York to open at 25% capacity; bowling alleys to open at
50% capacity; gyms to open at 33% capacity; and, of course, public protests and graduations to
occur. As explained in the Delgado Declaration, museum guests will be much more mobile than
wedding guests. (See Delgado Declaration at ¶¶21-23) Where museum guests are in constant
motion moving from exhibit to exhibit, wedding guests are intermittently stationary and will be
required to wear a mask and socially-distance when leaving their assigned table. Protesters are
close to one another and even rubbing against one another whereas wedding guests will be
appropriately spaced at their tables and able to maintain appropriate social distancing when
leaving their table. (See Delgado Declaration at ¶¶27-31) At graduations, the state trusts
teenagers and their young friends, siblings, and family members to comply with social-distance
guidelines and to wear mask a mask when six feet of distance could not be maintained. Similar
to weddings, exuberance, hugging, mingling, shouting, celebrating, speech-giving, singing, and
mortar-board sharing are all typical behaviors at middle-school, high-school, and college
13
graduation ceremonies. The state gives no plausible explanation why these individuals can be
trusted to comply with all COVID-19 protocols, but the plaintiffs’ wedding guests cannot.
In less than two weeks, students will be returning to school. These students have
been unable to see their friends for six months, and yet the state expresses little concern
regarding the potential that students will mingle amongst their friends and acquaintances without
wearing a mask or maintaining appropriate social distancing. Although the Governor’s page
states that the determination of how individual districts open — in-person versus a hybrid model
— will be made by local districts based on each region’s infection rate,6 the Department of
Health’s guidance makes clear the state has prioritized in-person re-openings this fall.7 Again,
the state fails to explain why it can trust K-12 schoolchildren to comply with the state’s social-
distance guidelines and wear masks, but it cannot trust adult wedding-goers to similarly do so.
v. Anticipated Compliance Does Not Provide a Rational

Basis for the State’s Difference in Treatment.
The state’s plea to consider wedding guests’ anticipated compliance with all
applicable public health safety guidelines is not an issue that can be considered for an equal
protection analysis. See, e.g., Baxstrom v. Herold, 383 U.S. 107 (1966); Bacon v. Toia, 648 F.2d
801, 809 (2d Cir. 1981) (finding there was “nothing I the record to establish that public
assistance recipients have a greater propensity than others for asserting fraudulent claims of lost
or stolen funds, and such a propensity is not to be assumed” and [w]here there is an equal
6
https://www.governor.ny.gov/news/governor-cuomo-announces-based-each-regions-infection-
rate-schools-across-new-york-state-are
7
K_to_Grade_12_Schools_MasterGuidence.pdf (at page 2, the guidance states “[t]o ensure equity
in education, Responsible Parties should prioritize efforts to return all students to in-person
instruction.”)
14
potential for fraud among those in each of two classes, it is not reasonable on this basis to treat
those classes differently”). As stated by the Sixth Circuit:
[T]he Church and its congregants just want to be treated equally.

They don’t seek to insulate themselves from the Commonwealth’s
general public health guidelines. They simply wish to incorporate
them into their worship services. They are willing to practice
social distancing. They are willing to follow any hygiene
requirements. They do not ask to share a chalice. The Governor
has offered no good reason for refusing to trust the congregants
who promise to use care in worship the same way it trusts
accountants, lawyers, and laundromat workers to do the same.
Roberts v. Neace, 958 F.3d 409, 414 (6th Cir. 2020).
The state has made it very clear it will hold venue owners responsible for
compliance with all applicable COVID-guidance, including guidance that forbids “mingling”
without maintaining appropriate social distancing or wearing a mask where six feet of distance is
not possible. Cuomo boasts on his website that 162 businesses’ liquor licenses have been
suspended during the public health emergency; 886 charges have been filed and processed to
date; and, since this past weekend alone, the multi-agency task force has conducted nearly 4,000
compliance checks at bars and restaurants across the state.8 Businesses found in violation of
COVID-19 regulations in place face fines up to $10,000 per violation, “while egregious
violations can result in the immediate suspension of a bar or restaurant’s liquor license.”9 If
weddings are allowed to proceed forward under the same guidance in place for restaurants and
bars — the same guidance already in place for the plaintiffs when they operate as a restaurant —
there is no reason to believe that the state will be unable to enforce its guidelines. Accordingly,
this concern is unfounded.
8
https://www.governor.ny.gov/news/governor-cuomo-announces-suspension-14-additional-new-
york-bars-and-restaurants-liquor-licenses
9
Id.
15
By including information regarding the number of violations by New York State
establishments on the Governor’s website, the defendants implicitly admit that restaurants and
bars throughout the state do not comply with the COVID-19 safety protocols in place, yet the
state still allows these establishments to host up to 50% of the venue’s capacity for ordinary
restaurant dining. The state will attempt to paint a picture that patrons who go to a restaurant are
perfect citizens who follow all applicable safety protocols while wedding guests flout all rules
and regulations. This Court should not fall for such nonsense, especially when the defendants
publicly admit that the potential for non-compliance at restaurants is at least as high as it is at a
dinner for the purpose of celebrating a wedding. The state has numerous enforcement measures
in place if any of the plaintiffs do not comply, and the preliminary injunction requested by the
plaintiffs will not prohibit the state from using these enforcement measures. Thus, anticipated
compliance does not pass rational-basis review.
C. Balance of Equities Weighs in Favor of the Plaintiffs.
“A balance of equities tipping in favor of the party requesting a preliminary
injunction” means a balance of the hardships against the benefits. DiMartile v. Cuomo, 1:20-
CV-0859, 2020 WL 4558711, at *6 (N.D.N.Y. Aug. 7, 2020) (collecting cases); see also, Ligon
v. City of New York, 925 F. Supp. 2d 478, 539 (S.D.N.Y. 2013) (characterizing the balancing of
“hardship imposed on one party” and “benefit to the other” as “balance[ing] [of] the equities”).
With respect to balancing the hardships, economic or financial hardships have been sufficient to
tip the scales in favor of granting a preliminary injunction. See, e.g., Buffalo Courier-Express,
Inc. v. Buffalo Evening News, Inc., 601 F.2d 48, 58 (2d Cir. 1979); Int’l Bus. Mach. v. Johnson,
629 F. Supp. 2d 321, 333-34 (S.D.N.Y. 2009). Furthermore, when an injunction is sought to stay
16
enforcement of a law that is purported to protect the public interest, the hardship to the non-
movant government can be measured by the extent to which the law furthers such protection.
See Ass’n of Jewish Camp Operators v. Cuomo, 1:20-CV-0687, 2020 WL 3766496, at *4
(N.D.N.Y. July 6, 2020)
Here, as explained above, absent a stay the plaintiffs’ equal protection rights will
be violated. Although the state will argue that the threat to public health outweighs the harm
caused by its violation of plaintiffs’ equal protection rights, such an argument ignores the fact
that the weddings contemplated by the plaintiffs are less risky than the indoor dining already
allowed to occur at the plaintiffs’ establishments. In sum, because the plaintiffs have already
established that they will be irreparably harmed absent a stay, the defendants cannot contest that
the plaintiffs have demonstrated that the balance of equities tip in their favor.
D. The Public Interest is Served by Issuing a Preliminary Injunction.
As Judge Suddaby aptly noted in the DiMartile decision, the public interest is
served by the protection of plaintiffs’ constitutional rights. DiMartile, 2020 WL 4558711, at *11
(“the likelihood that Plaintiffs will succeed on their equal protection claim means that the public
interest would be served by protecting their constitutional rights”); see also Jolly v. Coughlin,
907 F. Supp. 63, 65 (S.D.N.Y. 1995) (“defendants have failed to demonstrate that their
epidemiological concerns outweigh the strong public interest in following the law, namely
RFRA and the Eighth Amendment to the Constitution”); Roberts v. Neace, 958 F.3d 409, 416
(6th Cir. 2020) (“treatment of similarly situated entities in comparable ways serves public health
interest at the same time it preserves bedrock free-exercise guarantees”). A preliminary
injunction is the best — and only — relief available to protect the plaintiffs’ rights under the
17
Fourteenth Amendment. Thus, granting the plaintiffs a preliminary injunction protects not just
the plaintiffs, but also the public, from irreparable injury.
POINT II
JACOBSON V. MASSACHUSETTS DOES NOT AFFECT THIS COURT’S ANALYSIS
Undoubtedly, the state’s opposition will attempt to focus this Court’s attention on
the Supreme Court’s holding in Jacobson v. Massachusetts. However, even though courts have
upheld “broad” discretion for state officials during the COVID crisis, there are limits to that
discretion. See S. Bay United Pentecostal Church v. Newsom, --- U.S. ---, 140 S. Ct. 1613, 1613,
--- L. Ed. 2d --- (2020) (Roberts, C.J., concurring); Ass’n of Jewish Camp Operators v. Cuomo,
1:20-CV-0687, 2020 WL 3766496, at *10 (N.D.N.Y. July 6, 2020) (citing Jacobson v.
Massachusetts, 197 U.S. 11 (1905)) (“authority to respond to an emergency, while broad, is not
without limits: it may not be arbitrary or oppressive”). When determining whether state action
reasonably and permissibly restricts constitutional rights during this COVID crisis, the Court
must consider whether the challenged state action lacks a “real or substantial relation [to public
health]” or is “beyond all question, a plain, palpable invasion of rights.” Ass’n of Jewish Camp
Operators, 2020 WL 3766496, at *8 (citing Jacobson, 197 U.S. 11). In other words, under the
Jacobson standard, claims are analyzed under the rational-basis standard of review. DiMartile v.
Cuomo, 1:20-CV-0859, 2020 WL 4558711, at *9 (N.D.N.Y. Aug. 7, 2020) (citing Ass’n of
Jewish Camp Operators, 2020 WL 3766496, at *9 (analyzing S. Bay and its progeny)).
Here, the reasons why the state’s refusal to grant plaintiffs the requested
exemption to the 50-person limit does not have a rational basis is discussed above — namely, the
state fails to plausibly explain why it treats the plaintiffs differently when it seeks to hold
18
wedding versus non-wedding dinners, and the state fails to explain why it treats other businesses
and gatherings differently with respect to the discrete issues raised by the state in opposition to
wedding dinners. (See Point I, supra) For those reasons, the 50-person limit also fails the
Jacobson test.
POINT III
THE PROPOSED CLASS SHOULD BE CERTIFIED
The named plaintiffs seek to represent a class defined as follows:
All restaurant, banquet, catering, and dining facilities in New York

State with a maximum occupancy greater than 100 that follow the
“Interim Guidance for Food Services During the COVID-19 Public
Health Emergency,” yet are prohibited from hosting wedding
dinners for more than 50 individuals under Executive Order
202.45.
As the proposed class satisfies the requirements of both F.R.C.P. Rule 23(a) and
F.R.C.P. 23(b), and because class certification is essential to the fair and efficient adjudication of
this controversy, Plaintiffs’ motion for class certification should be granted.
A. The Proposed Class is so Numerous that

Joinder of all Members is Impractical.
Rule 23(a)(1) requires that the proposed class be “so numerous that joinder of all
members is impractical.” “Impracticability” means difficulty or inconvenience of joinder, not
impossibility of joinder. Eldred v. Comforce Corp., No. 3:08-CV-1171 LEK/DEP, 2010 WL
812698, at *15 (N.D.N.Y. Mar. 2, 2010). In the Second Circuit, numerosity is presumed at 40
members. Williams v. Conway, 312 F.R.D. 248, 251 (N.D.N.Y. 2016) quoting Consol. Rail
Corp. v. Town of Hyde Park, 47 F.3d 473, 483 (2d Cir. 1995). To that point, it has been held that
19
joinder of a class consisting of 100 to 200 parties “would make joinder clearly impracticable.”
McCoy v. Ithaca Hous. Auth., 559 F. Supp. 1351, 1355 (N.D.N.Y. 1983).
Here, Plaintiffs’ counsel has identified, at a minimum, over 40 class members
who fit the class defined above. Accordingly, numerosity is presumed. See Consol. Rail Corp.,
47 F.3d 483. Further, joinder of such a large class is clearly impracticable, and therefore
Plaintiffs have established numerosity under Rule 23(1)(1). See McCoy 559 F. Supp. 135.
B. All Questions of Law are Common to the Proposed Plaintiff Class.
F.R.C.P. Rule 23(a)(2) requires that there be questions of law and fact common to
the class. The commonality requirement is satisfied when defendants apply a common course of
prohibited conduct to the plaintiff class. This element “does not require all questions of law or
fact to be common,” and “even a single common question will suffice.” Williamson v. Maciol,
No. 9:20-CV-537, 2020 WL 4449527, at *4 (N.D.N.Y. Aug. 3, 2020) (quoting Sykes v. Mel
Harris & Assocs., LLC, 285 F.R.D. 279, 286 (S.D.N.Y. 2012), aff'd sub nom. Sykes v. Mel S.
Harris & Assocs. LLC, 780 F.3d 70 (2d Cir. 2015)). “[W]hat matters is the capacity of a
classwide proceeding to generate common answers apt to drive the resolution of the litigation.”
Sykes 285 F.R.D. 279, 286. In sum, “[c]ommonality may be found were the plaintiffs' alleged
injuries derive from a unitary course of conduct by a single system.” Id. 287.
Further, as the plaintiffs seek certification of an injunctive class under Rule
23(b)(2) to right an alleged constitutional wrong, they are entitled to an assumption of
commonality, and their motion for class certification should be granted. Nicholson v. Williams,
205 F.R.D. 92, 98 (E.D.N.Y. 2001) (“[t]here is an assumption of commonality where plaintiffs
20
seek certification of an injunctive class under Rule 23(b)(2) to right alleged constitutional
wrongs); see also Baby Neal v Casey, 43 F.3d 48, 57 (3d Cir. 1994).
Here, the common questions of law include, particularly, whether the defendants’
executive orders and enforcement of the executive orders which treat weddings differently from
restaurant operations within the same venue violate the Fourteenth Amendment to the United
States Constitution. Clearly, resolution of this question would resolve the litigation on behalf of
all proposed class members, and therefore, the plaintiffs have demonstrated common questions
of fact and law.
C. The Claims of the Named Plaintiffs are Typical of the Claims of the
Proposed Plaintiff Class.
F.R.C.P. Rule 23(a)(3) requires that the claims or defenses of the class
representatives be typical of the claims or defenses of the class. The typicality requirement is
met where, as here, the named plaintiffs’ claims arise from the same conduct that gives rise to
the claims of other proposed class members and if the claims share the same legal theory. Dura-
Bilt Corp. v. Chase Manhattan Corp., 89 F.R.D. 87, 99 (S.D.N.Y. 1981). This liberal standard
has been described as “elastic.” Nicholson v. Williams, 205 F.R.D. 92, 99 (E.D.N.Y. 2001).
Further, “[t]ypicality may be assumed where the nature of the relief sought is injunctive and
declaratory.” Id.
Here, the typicality requirement is met because the claims of both the named
plaintiff class representatives and the proposed class arise from the same conduct by Defendants,
that is, the promulgation and enforcement of the executive orders which uniformly restrict the
plaintiff class from hosting weddings at the same capacity and under the same restrictions as
21
restaurant uses are permitted. Further, Plaintiffs seek only injunctive relief, and therefore,
typicality should be assumed. See id.
D. The Named Plaintiffs will Fairly and Adequately Protect the Interests
of the Proposed Class.
Rule 23(a)(4) of the Federal Rules of Civil Procedure allows a class action to be
maintained if the named plaintiffs fairly and adequately protect the interests of the class.
“Adequacy is twofold: the proposed class representative must have an interest in vigorously
pursuing the claims of the class, and must have no interests antagonistic to the interests of other
class members.” Denney v. Deutsche Bank AG, 443 F.3d 253, 268 (2d Cir. 2006). The named
plaintiffs in this case meet both elements of Rule 23(a)(4).
First, the interests of the named plaintiffs and the proposed class members are
entirely coextensive. The named plaintiffs and the proposed class members seek declaratory and
injunctive relief to allow them to host weddings in the same locations and with the same
restrictions under which Defendants have already allowed restaurant operations. Second,
counsel for Plaintiffs have experience in class actions and in civil rights litigation including
matters challenging the very same executive orders subject to this action on the very same
grounds implicated by this action. See DiMartile, 2020 WL 4558711.
E. This Action Meets the Requirements of Rule 23(b)(2) of the Federal

Rules of Civil Procedure.
The proposed class meets the criteria for certification set forth in F.R.C.P. Rule
23(b)(2). First, Defendants’ conduct or failure to act is at least “generally applicable to the
class,” and second, final injunctive or corresponding declaratory relief is appropriate for the
22
proposed class as a whole. See Ticor Title Ins. Co. v. Brown, 511 U.S. 117, 120, 114 S.Ct. 1359,
1361 (1994); Parker v. Time Warner Entertainment Co., L.P., 331 F.3d 13, 18 (2d Cir. 2003).
To be certified as a class under Rule 23(b)(2), it is sufficient that class members complain of a
pattern or practice that is generally applicable to the class as a whole. Walters v. Reno, 145 F.3d
1032, 1047 (9th Cir. 1998). Indeed, plaintiffs' allegations fall squarely within the intended ambit
of subdivision (b)(2), which includes actions in the civil rights field where a party is charged
with discriminating unlawfully against a class. Nicholson v. Williams, 205 F.R.D. 92, 101
(E.D.N.Y. 2001) (“This subdivision is intended to reach situations where a party has taken action
or refused to take action with respect to a class, and final relief of an injunctive nature or of a
corresponding declaratory nature, settling the legality of the behavior with respect to the class as
a whole, is appropriate ... [i]llustrative are various actions in the civil rights field where a party is
charged with discriminating unlawfully against a class”); see also Lyon v. United States
Immigration & Customs Enf't, 300 F.R.D. 628, 635 (N.D. Cal. 2014), modified sub nom. Lyon v.
U.S. Immigration & Customs Enf't, 308 F.R.D. 203 (N.D. Cal. 2015) (“The Court also notes that,
Rule 23(b)(2) was adopted precisely ‘in order to permit the prosecution of civil rights actions.”)
Plaintiffs here seek injunctive relief against defendants’ enforcement of the
executive orders prohibiting the holding of weddings at the same capacity and under the same
restrictions under which restaurants are permitted to function. These restrictions are applied
exclusively to the proposed class. Plaintiffs seek preliminary and class-wide final declaratory
and injunctive relief to enjoin enforcement of the executive orders on the ground that the orders
violate the equal protection guarantees of the Fourteenth Amendment to the United States
Constitution. Any order entered by this court would, by its terms, inure to the benefit of all
members of the class. Class certification is therefore appropriate under Rule 23(b)(2).
23
CONCLUSION
For all the foregoing reasons, Plaintiffs respectfully request an order granting the
plaintiffs’ motion for class certification and a preliminary injunction; as well as any other further
relief this Court deems just and proper.
Dated: August 28, 2020 RUPP BAASE PFALZGRAF CUNNINGHAM LLC

Attorneys for Plaintiffs
s/ R. Anthony Rupp III

R. Anthony Rupp III, Esq.
Bar Roll # 502559
Phillip A. Oswald, Esq.
Bar Roll # 519974
Michael Brandi, Esq.
Bar Roll # 700481
25 Walton Street
Saratoga Springs, New York 12866
(518) 886-1902
24

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Case 1:20-cv-01001-FJS-TWD Document 2-2 Filed 08/28/20 Page 1 of 27

UNITED STATES DISTRICT COURT

ANDREW M. CUOMO, LETITIA JAMES, Civil No. 1:20-cv-1001 (FJS/TWD)

RUPP BAASE PFALZGRAF CUNNINGHAM LLC

PRELIMINARY STATEMENT ..................................................................................... 1

STATEMENT OF FACTS .............................................................................................. 3

PLAINTIFFS ARE ENTTILED TO A PRELIMINARY INJUNCTION ........... 4

A. Identified Class Members are Suffering Irreparable Harm ................ 5

B. Plaintiffs are Likely to Prevail on the Merits of Their

I. Plaintiffs Satisfy the Similarly-Situated Requirement .............. 7

II. There is No Rational Basis for Treating the Plaintiffs

i. Less Turnover of Guests is a Mitigating Factor

ii. Wedding Guests arriving and Leaving at the

iii. Singing and Shouting........................................................ 12

iv. Mingling and Direct Interaction Among Guests............... 13

v. Anticipated Compliance Does Not Provide a

C. Balance of Equities Weighs in Favor of the Plaintiffs ....................... 16

D. The Public Interest is Served by Issuing a Preliminary Injunction .... 17

JACOBSON V. MASSACHUESETTS DOES NOT AFFECT THIS

THE PROPOSED CLASS SHOULD BE CERTIFIED ...................................... 19

A. The Proposed Class is so Numerous that Joinder of

B. All Questions of Law are Common to the Proposed

C. The Claims of the Named Plaintiffs are Typical of the Claims

D. The Named Plaintiffs will Fairly and Adequately Protect the

E. This Action Meets the Requirements of Rule 23(b)(2) of the

necessary to foreclose the likelihood of future harm.

Accordingly, for the reasons discussed at greater length below, Plaintiffs

plaintiffs operate as a restaurant.

On March 7, 2020, Defendant Governor Andrew Cuomo (“Cuomo”) issued

transmission of COVID-19 in the state. Subsequently, Cuomo issued a flurry of additional

in the state and was expected to continue.

10-person limit on non-essential gatherings, but allowed unlimited gatherings to commence in

manufacturing, certain retail, and other services in support of these industries.

restriction on “non-essential” gatherings by allowing up to 25 people to gather so long as their

allowing restaurants and food-service establishments in Phase 3 regions to operate up to 50% of

the maximum occupancy of a given restaurant, even if more than 50 people.

is permitted to serve dinner to well over 50 members of the general public.

PLAINTIFFS ARE ENTITLED TO A PRELIMINARY INJUNCTION

To obtain a preliminary injunction, plaintiffs must demonstrate: (1) irreparable

A. Identified Class Members are Suffering Irreparable Harm.

likelihood-of-success standard where constitutional right violations were alleged); Jolly v.

compensated monetarily”) (emphasis in original) (citations omitted).

As explained below, plaintiffs are able to show a likelihood of success on the

a harm that cannot be adequately compensated monetarily.” Thus, by demonstrating below a

B. Plaintiffs are Likely to Prevail on the Merits of Their

discrimination, whether occasioned by express terms of a statute or by its improper execution

York, 927 F.3d 81, 93 (2d Cir. 2019).

place for restaurants has no rational basis (Sub-Point II, infra).

I. Plaintiffs Satisfy the Similarly-Situated Requirement.

(2d Cir. 2012). In that case, the court held:

The Church’s use of multiple comparators is unusual . . . We

government’s differential treatment).

credibly argue that plaintiffs do not satisfy the similarly-situated requirement.

protection claim. See Fortress Bible Church, 694 F.3d at 221-224.

II. There is No Rational Basis for Treating the Plaintiffs Differently

and mingling than non-wedding dining. DiMartile v. Cuomo, 1:20-CV-0859, 2020 WL

different from dining for the purpose of celebrating a wedding.

i. Less Turnover of Guests is a Mitigating Factor for

practice social distancing when not seated at their own table.

ii. Wedding Guests Arriving and Leaving at the Same Time.

Cuomo, 1:20-CV-0859, 2020 WL 4877239, at *5 (N.D.N.Y. Aug. 19, 2020). In fact, as

a restaurant. Id. at *5; see also Delgado Declaration at ¶¶17-20.

iii. Singing and Shouting.