New York restaurant owners sue Gov. Cuomo to allow in-person dining

An upstate New York restaurant owner is joining others in a lawsuit against Democratic Gov. Andrew Cuomo, saying it has “been tough to watch” his customers go to restaurants in a nearby county instead of his because of less restrictive coronavirus measures.

“Here we are in our busiest season and many of our customers are just going a few miles down the road, in some cases right across the street and dining indoors,” Greg Duell, the co-owner of in Erie County, told “Fox & Friends First” on Tuesday.

He is not allowed to host customers for indoor dining because of coronavirus restrictions imposed by Cuomo, even as the state released contact-tracing data that showed bars and restaurants accounted for just 1.43% of COVID-19 cases in the three months ending in November.

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Erie County is considered an “orange zone” in New York State. Indoor dining is prohibited in “orange zones,” so restaurants, bars, cafes and other eateries are only allowed to provide outdoor dining, takeout and delivery service, according to New York State‘s rules.

Duell’s customers now frequent restaurants in nearby Niagara County, which is considered a “yellow zone,” in which indoor and outdoor dining is permitted.

As of Tuesday, Erie County has reported nearly 40,000 COVID-19 cases and more than 1,100 deaths.

Duell explained that “what really pushed us” to join the lawsuit, which WKBW-TV reported included about 40 other restaurants, “was when the state released data showing the [COVID-19] transmission rate in restaurants was only 1.43%.”

“We just don’t believe that that justifies an industrywide shutdown and they need to do a cost-benefit analysis to determine that maybe it’s not worth having our industry closed,” he said.

Duell’s attorney, Steve Cohen, who is with HoganWillig PLLC and is the lead attorney in the case, told “Fox & Friends First” on Tuesday that  his firm has six lawsuits in the state of New York. HoganWillig is representing people throughout the country, primarily the states of Pennsylvania, California and New York, he said. 

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“We are in a constitutional crisis and some excellent decisions have come out of the courts that show that the actions that have been taken by the governors of the states of New York, California and Pennsylvania are unconstitutional,” Cohen said. “The problem is these governors are not following the orders of the court.”

Cohen also pointed to comments made by Supreme Court Justice Neil Gorsuch regarding a New York case where religious groups claimed that Cuomo unfairly targeted religion by holding services and houses of worship to a stricter standard than other “essential” services and businesses.

Gorsuch ripped into Cuomo’s prohibitions in a scathing concurring opinion.

“It is time — past time — to make plain that, while the pandemic poses many grave challenges, there is no world in which the Constitution tolerates color-coded executive edicts that reopen liquor stores and bike shops but shutter churches, synagogues, and mosques,” Gorsuch wrote.

Cohen said that the governor has ignored Gorsuch.

“That had no effect on this governor and that’s alarming,” Cohen said.

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A spokesperson for Governor Cuomo said legal challenges to policy decisions are normal.

“We get sued virtually every day for virtually every action taken during this pandemic, and frankly I’ve lost track of all the frivolous suits filed against us,” the spokesperson said. “We know some people are unhappy, but better to be unhappy than sick or worse.”

Duell was undettered by that statement.

“As the owner of this restaurant and many owners alike that are involved in this case, we feel we have a responsibility to stand up and defend our livelihoods and the livelihoods of our employees,” he said in response to the statement from Cuomo’s office. “Restaurants can do this safely. We’ve been doing it safely. There is so much unnecessary pain that has been caused by these closures.”

He and other restaurant owners believe “it’s time for the governor to realize that his own data shows that we can do this safely.”

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When asked what’s next in the fight Cohen said, “We’re going to continue the legal route and get judicial decisions that point out how these actions are baseless, they are contrary to fact and they are unconstitutional.”

Fox News’ Ronn Blitzer contributed to this report.  

Talia Kaplan is a reporter for FoxNews.com. Follow her on Twitter @taliakaplan