A Queens restaurant located feet away from the Nassau County border is spearheading a class-action lawsuit against the mayor, governor and attorney general, arguing that indoor dining restrictions still in place for New York City restaurants violate their owners' constitutional rights and put their businesses in jeopardy.
Il Bacco, a three-level Italian restaurant in Little Neck, along with more than 300 other New York City restaurants in Queens and beyond, are suing Gov. Andew M. Cuomo, Mayor Bill de Blasio and the attorney general’s office for $2 million in damages, according to a lawsuit filed in state Supreme Court Friday by the Syosset-based Mermigis Law Group. The firm filed a similar lawsuit on behalf of gyms last month.
Il Bacco is about one and a half blocks, or around 500 feet, away from the Nassau border, where restaurants are permitted to have indoor dining at 50% capacity. New York City is the only part of the state where indoor dining is still banned due to pandemic-based restrictions, though its percentage of positive COVID-19 tests is similar to the rest of the state. There is currently no timeline to open indoor dining for city restaurants, even as fall weather approaches, and owners are concerned that their doors will remain closed through the end of the year.
“Every restaurant is packed and me, a block and a half away, I can’t open,” Joe Oppedisano, owner of Il Bacco, said Monday in an interview. The restaurant can have customers on its rooftop, but not on the first two floors of the building. “And winter is coming," Oppedisano said. The weather is warm now, but what happens two or three weeks from now? And then when it rains? I’m lucky I have a rooftop and I have a cover I can open and close, but once it gets cold, I can’t do that anymore.”
Added James Mermigis, his lawyer, in an interview: “He’s suffering severe, irreparable harm – that’s the bottom line. And he’s losing a lot of customers to Long Island businesses.”
Oppedisano said he’s been able to retain only about a third of his staff of about 60, and while the rooftop can only seat 60 customers, the dining room on the first floor holds 150 people and the catering hall on the second floor can hold 168 people. “If we can do 50% [capacity], I’m fine,” he said.
A representative from the governor’s office said they’re simply doing what’s necessary to keep residents safe.
“The bottom line is that New York City was hit the hardest and the governor took action to reduce infections in the areas that were driving clusters in other large cities around the country,” said Rich Azzopardi, senior adviser to the governor, in a statement responding to the lawsuit. “We understand that some people are unhappy, but better unhappy than sick or worse.”
A spokesman from the mayor's law office said they would review the case.
In part, the lawsuit argues that there is no scientific basis for allowing indoor dining in other regions, but restricting it for New York City. In the most recent seven-day rolling average, the city had 1% of COVID-19 tests come back positive – comparable to Long Island, central New York, the mid-Hudson region and the Capital region, according to the government tracking website, forward.ny.gov. The city also administers the most tests per day.
Not allowing city restaurants to have indoor dining, the suit said, violates owners' due process, as well as their right to liberty and property. In addition to monetary compensation and a lifting of restrictions, the suit is also seeking to establish a legal precedent and limit what it calls the state and city’s “police power.”
“Whatever the limits, [police power] is not some principle that unlocks absolute executive power and casts our Constitution to the wind,” the suit said. “The issues presented are capable of repetition and are of such importance that they cannot evade judicial review.”
For Oppedisano, it’s a matter of survival. Though his restaurant has lived on that block since 1992 and in its current building for 10 years, “100%, I’m worried,” he said.
“I employ a lot of people,” he said. “It’s a shame. Some of them have to collect unemployment now. It’s a mess.”
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