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Cloister Cafe Sued NYS Liquor Authority Amid COVID Now Replies Due June 21

By Matthew Russell Lee, Patreon
BBC - Guardian UK - Honduras - The Source

SDNY COURTHOUSE, June 6 –  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 a Gothamist article alleging they were hosting "illegal, illicit pandemic parties" based on an Instagram post by Kristina Alaniesse a/k/a KristinaForMayor.  

  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.

 On September 2, 2020 in a literary ruling, Judge Kaplan 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.

 Jump cut two years forward, and the case may be dismissed: "ORDER TO SHOW CAUSE. Plaintiff shall show cause on or before October 12, 2022 why this case should not be dismissed for failure to prosecute. SO ORDERED. (Signed by Judge Lewis A. Kaplan on 9/28/22)."

Previously: 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. 

On June 6, 2023, Judge Kaplan ruled: "1. Defendant's time to respond to the Corrected Second Amended Complaint (ECF Dkt No. 102) is hereby extended to June 21, 2023. 2. If Defendants file a motion to dismiss in response to the Corrected Second Amended Complaint, Plaintiff's opposition to any such motion will be due on July 21, 2023. 3. Defendants' reply in support of any motion to dismiss the Corrected Second Amended Complaint will be due on August 7, 2023. 4. A faxed, pdf or electronic signature on this stipulation shall be deemed an original. Granted. SO ORDERED. Vincent Bradley answer due 6/21/2023; Thomas Donohue answer due 6/21/2023; Lily Fan answer due 6/21/2023; Greeley Ford answer due 6/21/2023; Margarita Marsico answer due 6/21/2023; Gary Meyerhoff answer due 6/21/2023; New York State Liquor Authority answer due 6/21/2023; Charles Stravalle answer due 6/21/2023. (Signed by Judge Lewis A. Kaplan on 6/6/2023)."

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

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