Personal services lawsuit

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HOGANWILLIG
Attorneys at Law
2410 NORTH FOREST ROAD | SUITE 301 | AMHERST, NEW YORK 14068
Phone: 716.636.7600 | Toll Free: 800.636.5255 | Fax: 716.636.7606 | www.hoganwillig.com
STATE OF NEW YORK
SUPREME COURT : COUNTY OF ERIE
___________________________________________________________
ALL DOLLED UP BEAUTY BAR, LLC,
AMY MARINO, d/b/a STUDIO A,
BEL VISO SKIN STUDIO, INC.,
BLINK BEAUTY BAR, LLC,
BLUSH & BROW SPA AND SALON LLC,
BROOKE DONNELLY BEAUTY,
BUFFALO MASTER BARBER, LLC,
CELESTIAL BEAUTY BY CIARA,
CHRISTINA FILIPSKI d/b/a BELLUS SALON,
COLOR KARMA, LLC,
FACE FITNESS, LTD.,
FANTASTICS SAMS, LLC,
HOLISTIC SKIN CARE BY JANINE LLC,
HOLLY R. HUTCHINGS d/b/a STUDIO SKIN,
JACL, INC. d/b/a THE BELLEZZA SALON,
JAIMELYNN RICHTER d/b/a THE PINK SALON,
JEANNINE CORMIER d/b/a/ STEEL MAGNOLIA STUDIO,
KALU SALON AND DAY SPA, INC.,
KNF/TJF ENTERPRISES, LLC d/b/a RESTORATION SALON
AND SPA,
KONA OASIS, LLC,
LOX SALON, LLC,
MARCIA NORTON,
NORA BARNES d/b/a NORA,
PURE ESSENCE SALON & SPA, INC.,
SALON ELIZABETH LLC,
SALON IN THE TOWER, LLC,
SM AMHERST, LLC,
SM ORCHARD PARK, LLC,
SOUL SPACE SALON & YOGA LLC,
STUDIO C,
STUDIO 13 BEAUTY BAR,
SUSAN D. VOGLER d/b/a THE CORNER SALON,
THREE BAERS, INC. d/b/a FANTASTIC SAMS,
TRANQUIL TOUCH, LLC,
TRANSITIONS SALON, INC.,
TRAVIN OF W.N.Y., INC. d/b/a FANTASTIC SAMS,
WEST END SALON, LLC, and
4059 LOUIS ENTERPRISES, INC. d/b/a PHOENIX, A SALON,
Petitioners,
v.
VERIFIED PETITION
AND COMPLAINT
Index No.: ____________

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ANDREW M. CUOMO, in his official capacity as the
Governor of the State of New York,
NEW YORK STATE SENATE,
NEW YORK STATE ASSEMBLY,
NEW YORK STATE DEPARTMENT OF ECONOMIC DEVELOPMENT
d/b/a EMPIRE STATE DEVELOPMENT CORPORATION,
NEW YORK STATE DEPARTMENT OF HEALTH,
MARK C. POLONCARZ, in his official capacity as the
County Executive for the County of Erie, and
ERIE COUNTY DEPARTMENT OF HEALTH,
Respondents.
___________________________________________________________
Petitioners ALL DOLLED UP BEAUTY BAR, LLC, AMY MARINO, d/b/a STUDIO A, BEL
VISO SKIN STUDIO, INC., BLINK BEAUTY BAR, LLC, BLUSH & BROW SPA AND SALON
LLC, BROOKE DONNELLY BEAUTY, BUFFALO MASTER BARBER, LLC, CELESTIAL
BEAUTY BY CIARA, CHRISTINA FILIPSKI d/b/a BELLUS SALON, COLOR KARMA LLC,
FACE FITNESS, LTD., FANTASTICS SAMS, LLC, HOLISTIC SKIN CARE BY JANINE LLC,
HOLLY R. HUTCHINGS d/b/a STUDIO SKIN, JACL, INC. d/b/a THE BELLEZZA SALON,
JAIMELYNN RICHTER d/b/a THE PINK SALON, JEANNINE CORMIER d/b/a STEEL
MAGNOLIA STUDIO, KALU SALON AND DAY SPA, INC., KNF/TJF ENTERPRISES, LLC d/b/a
RESTORATION SALON AND SPA, KONA OASIS, LLC, LOX SALON, LLC, MARCIA
NORTON, NORA BARNES d/b/a NORA, PURE ESSENCE SALON & SPA, INC., SALON
ELIZABETH LLC, SALON IN THE TOWER, LLC, SM AMHERST, LLC, SM ORCHARD PARK,
LLC, SOUL SPACE SALON AND YOGA LLC, STUDIO C, STUDIO 13 BEAUTY BAR, SUSAN
D. VOGLER d/b/a THE CORNER SALON, THREE BAERS, INC. d/b/a FANTASTIC SAMS,
TRANQUIL TOUCH, LLC, TRANSITIONS SALON, INC., TRAVIN OF W.N.Y., INC. d/b/a
FANTASTIC SAMS, WEST END SALON, LLC, and 4059 LOUIS ENTERPRISES, INC. d/b/a
PHOENIX, A SALON (“Petitioners”), as and for their Verified Petition and Complaint against
Respondents ANDREW M. CUOMO, in his official capacity as the Governor of the State of New
York, NEW YORK STATE SENATE, NEW YORK STATE ASSEMBLY, NEW YORK STATE
DEPARTMENT OF ECONOMIC DEVELOPMENT d/b/a EMPIRE STATE DEVELOPMENT
CORPORATION, HOWARD A. ZUCKER, M.D., in his official capacity as the Commissioner of
Health for the State of New York, NEW YORK STATE DEPARTMENT OF HEALTH, MARK C.
POLONCARZ, in his official capacity as the County Executive for the County of Erie, GALE R.
BURSTEIN, M.D., M.P.H., in her official capacity as the Commission of Health for the County of
Erie, State of New York, and ERIE COUNTY DEPARTMENT OF HEALTH (“Respondents”),
respectfully allege as follows:
NATURE OF ACTION
1. This is a special proceeding brought under Article 78 of the New York Civil
Practice Law and Rules (“CPLR”), and 42 U.S.C. § 1983, seeking injunctive relief for: (i)

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violations of Petitioners’ rights under the United States and New York State Constitutions; (ii)
violations of, and facial challenges to the constitutionality of, New York State Executive Law §
29-a; (iii) suspension of Respondent’s government pay for the duration of the COVID-19
pandemic; and (iii) reimbursement of attorneys’ fees, costs, and expenses incurred by Petitioners
in seeking to protect against the violation of their rights.
2. Petitioners’ companion action seeking compensatory damages against New York
State Respondents will be venued in the New York State Court of Claims. This proceeding
before the New York State Supreme Court seeks equitable relief as described elsewhere herein.
3. Respondents, in a disturbing and gross abuse of their power, have, in the name of
the COVID-19 pandemic, attempted to expand their authority by unprecedented lengths, without
any proper constitutional, statutory, or common law basis therefor.
4. Inherent within the actions of Respondents is the flawed justification that an
alleged national emergency suspends the United States and New York State Constitutions.
5. This action challenges Executive Order 202.68, and the associated guidelines,
mandates and/or restrictions, which classify Petitioners as “personal care” businesses, required to
close pursuant to Erie County’s recent designation as an “Orange Zone.” See infra.
6. Petitioners’ services do not present an increased risk of spreading COVID-19, nor
has there ever been any credible proof or data offered of any such claim, whether in the County
of Erie, State of New York, or elsewhere.
7. Petitioners are entitled to a TRO and preliminary injunction, as: (i) Petitioners are
likely to prevail on the merits of their claims; (ii) they will suffer immediate and irreparable harm
if the requested relief is not granted; and (iii) the balance of equities tips in Petitioners’ favor.

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8. Respondents have engaged in conduct that is arbitrary and capricious, thereby
entitling Petitioners to relief pursuant to Article 78 of the CPLR.
9. Respondents’ arbitrary classifications, i.e., “essential vs non-essential businesses”
and color coding of municipalities by the “cluster zone initiative” into “red zones, orange zones
and yellow zones” are forcing Petitioners to cease their operations, and as stated, violate
Petitioners’ constitutional rights to Due Process and Equal Protection under the Fourteenth
Amendment to the United States Constitution.
10. Petitioners will suffer immediate and irreparable harm if the relief requested is not
granted, as a second temporary closure of their respective businesses under the Cluster Zone
Initiative will eliminate any possibility that most, if not all, of Petitioners will be able to re-open
their respective businesses, resulting in the permanent closure thereof.
11. Petitioners will also be irreparably harmed should their requests for relief be
denied because Petitioners will be compelled to incur further expenses resulting from forced
closure, will be caused to fire or furlough employees, and incur the time and costs of remaining
shutdown, in part. Significantly, Petitioners will suffer an immediate and permanent loss of their
clients and business relationships if caused to remain permanently shut down.
12. The balance of equities also tips in Petitioners’ favor. If permitted to remain open,
while comporting with all social distancing, mask, hygiene, and sanitation guidelines and
mandates, the status quo will be maintained. Petitioners’ personal care industry has always been
one where sanitation is a requirement for maintaining their licenses. Moreover, Petitioners have
always comported with all relevant Executive Orders and associated guidelines.
13. Moreover, there has been no showing that Petitioners’ businesses in any way have
contributed to the spike in COVID-19 cases, nor in the transmission of the disease.

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14. Respondents will not be harmed because permitting Petitioners to continue their
operations will not increase the risk of spreading, or increasing exposure to, COVID-19 and will,
consequently, not interfere with Respondents’ efforts to contain the virus.
15. Petitioners’ requests for injunctive relief should thus be granted by this Court.
PARTIES
16. At all times relevant hereto, Petitioner ALL DOLLED UP BEAUTY BAR, LLC
was and is a New York limited liability company with its principal office located at 972 Union
Road, West Seneca, New York 14224, wherein it operates a licensed beauty and hair salon.
17. At all times relevant hereto, Petitioner AMY MARINO d/b/a STUDIO A was and
is a sole proprietorship with its principal office located at 4110 Maple Road, Amherst, New York
14226, wherein it operates a licensed beauty and hair salon.
18. At all times relevant hereto, Petitioner BEL VISO SKIN STUDIO, INC. was and
is a New York business corporation with its principal office located at 7158 Transit Road,
Williamsville, New York 14221, wherein it operates a licensed beauty and skincare salon.
19. At all times relevant hereto, Petitioner BLINK BEAUTY BAR was and is a New
York limited liability company with its principal office located at 2934 Delaware Avenue,
Buffalo, New York 14217, wherein it operates a licensed beauty salon.
20. At all times relevant hereto, Petitioner BLUSH & BROW SPA AND SALON,
LLC was and is a New York limited liability company with offices located at 8560 Main Street,
Suite 1, Williamsville, New York 14221, wherein it operates a licensed beauty salon.
21. At all times relevant hereto, Petitioner BROOKE DONNELLY BEAUTY was
and is a sole proprietorship with its principal office located at 109 Michaels Walk, Lancaster,
New York 14086, wherein it operates a licensed beauty salon.

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22. At all times relevant hereto, Petitioner BUFFALO MASTER BARBER, LLC,
was and is a New York limited liability company with its principal office located at 2844
William Street, Buffalo, New York 14227, wherein it operates a licensed men’s barber shop.
23. At all times relevant hereto, Petitioner CELESTIAL BEAUTY BY CIARA was
and is a sole proprietorship with its principal office located at 2220 Southwestern Boulevard,
Orchard Park, New York 14127, wherein it operates a licensed beauty salon.
24. At all times relevant hereto, Petitioner CHRISTINA FILIPSKI d/b/a BELLUS
SALON was and is a sole proprietorship with its principal office located at 84 Lake Street,
Hamburg, New York 14075, wherein it operates a licensed hair salon.
25. At all times relevant hereto, Petitioner COLOR KARMA, LLC was and is a New
York limited liability company with its principal office located at 192 Central Avenue,
Lancaster, New York 14086, wherein it operates a licensed beauty salon.
26. At all times relevant hereto, Petitioner FACE FITNESS, LTD. was and is a New
York business corporation with its principal office located at 9560 Main Street, Suite 6,
Clarence, New York 14031, wherein it operates a licensed professional skincare salon.
27. At all times relevant hereto, Petitioner FANTASTICS SAMS, LLC was and is a
New York limited liability company with its principal office located at 2355 Bowen Road, Elma,
New York 14059, wherein it operates a licensed hair salon.
28. At all times relevant hereto, Petitioner HOLISTIC SKIN CARE BY JANINE,
LLC was and is a New York limited liability company with offices located at 5505 Main Street,
Williamsville, New York 14221, wherein it operates a licensed skincare salon.

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29. At all times relevant hereto, Petitioner HOLLY R. HUTCHINGS d/b/a STUDIO
SKIN was and is a sole proprietorship, with its principal office located at 12 South Buffalo
Street, Hamburg, New York 14075, wherein it operates a licensed professional skincare salon.
30. At all times relevant hereto, Petitioner JACL, INC. d/b/a THE BELLEZZA
SALON was and is a New York corporation with its principal office located at 6728 Main Street,
Williamsville, New York 14221, wherein it operates a licensed beauty salon.
31. At all times relevant hereto, Petitioner JAIMELYNN RICHTER d/b/a THE PINK
SALON was and is a sole proprietorship, with its principal office located at 8510 Roll Road,
Clarence Center, New York 14032, wherein it operates a licensed hair salon.
32. At all times relevant hereto, Petitioner JEANNINE CORMIER d/b/a STEEL
MAGNOLIA STUDIO was and is a sole proprietorship with offices located at 6546 New Taylor
Road, Orchard Park, New York 14127, wherein it operates a licensed beauty/hair salon.
33. At all times relevant hereto, Petitioner KALU SALON AND DAY SPA, INC.
was and is a New York corporation with its principal office located at 2874 Niagara Falls
Boulevard, Amherst, New York 14228, wherein it operates a licensed beauty salon and spa.
34. At all times relevant hereto, Petitioner KNF/TJF ENTERPRISES, LLC d/b/a
RESTORATION SALON AND SPA was and is a New York limited liability company with its
principal office located at 425 French Road, Depew, New York 14043, wherein it operates a
licensed beauty salon.
35. At all times relevant hereto, Petitioner KONA OASIS, LLC was and is a New
York limited liability company with its principal office located at 326 Cayuga Road, Buffalo,

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36. At all times relevant hereto, Petitioner LOX SALON, LLC was and is a New
York limited liability company with its principal office located at 4475 Transit Road,
Williamsville, New York 14221, wherein it operates a licensed beauty salon.
37. At all times relevant hereto, Petitioner MARCIA NORTON was and is a sole
proprietorship with its principal office located at 3486 Moyer Road, North Tonawanda New
York 14120, wherein it operates at a licensed beauty salon.
38. At all times relevant hereto, Petitioner NORA BARNES d/b/a NORA was and is a
sole proprietorship with its principal office located at 5500 Main Street, Williamsville, New
York 14221, wherein it operates a licensed hair salon.
39. At all times relevant hereto, Petitioner PURE ESSENCE SALON & SPA, INC.
was and is a New York corporation with its principal office located at 444 Cook Road, East
Aurora, New York 14052, wherein it operates a licensed beauty salon and spa.
40. At all times relevant hereto, Petitioner SALON ELIZABETH LLC was and is a
New York limited liability company with its principal office located at 720 Jamison Road, Elma,
41. At all times relevant hereto, Petitioner SALON IN THE TOWER, LLC was and is
a New York limited liability company with offices located at 10225 Main Street, Clarence, New
York 14031, wherein it operates a licensed beauty salon/spa.
42. At all times relevant hereto, Petitioner SM AMHERST, LLC and is a New York
limited liability company with its principal office located at 3316 Sheridan Drive, Amherst, New
York 14226, wherein it operates a licensed beauty and hair salon.

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43. At all times relevant hereto, Petitioner SM ORCHARD PARK, LLC was and is a
New York limited liability company with offices located at 3455 Amelia Drive, Orchard Park,
New York 14127, wherein it operates a licensed beauty and hair salon.
44. At all times relevant hereto, Petitioner SOUL SPACE SALON & YOGA, LLC
was and is a New York limited liability company with offices located at 4 Centre Drive, Orchard
Park, New York 14127, wherein it operates a licensed spa, salon, and yoga studio.
45. At all times relevant hereto, Petitioner STUDIO C was and is a New York limited
liability company with its principal office located at 1404 Hertel Avenue, Buffalo, New York
14216, wherein it operates a licensed beauty and hair salon.
46. At all times relevant hereto, Petitioner STUDIO 13 BEAUTY BAR was and is a
sole proprietorship with its principal office located at 2220 Southwestern Boulevard, Orchard
Park, New York 14127, wherein it operates a licensed beauty and hair salon.
47. At all times relevant hereto, Petitioner SUSAN D. VOGLER d/b/a THE
CORNER SALON was and is a sole proprietorship, with its principal office located at 147
Cheryl Lane, Depew, New York 14043, wherein it operates a licensed hair salon.
48. At all times relevant hereto, Petitioner THREE BAERS, INC. d/b/a FANTASTIC
SAMS was and is a New York corporation with its principal offices located at 1100
Southwestern Boulevard, West Seneca, New York 14224 and 1330 Niagara Falls Boulevard,
Tonawanda, New York 14150, wherein it operates licensed hair salons.
49. At all times relevant hereto, Petitioner TRANQUIL TOUCH, LLC was and is a
New York limited liability company with its principal office located at 745 Millersport Highway,
Amherst, New York 14226, wherein it operates a licensed beauty, skincare and wellness salon
and/or clinic.

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50. At all times relevant hereto, Petitioner TRANSITIONS SALON, INC. was and is
a New York corporation with its principal office located at 1834 Maple Road, Williamsville,
New York 14221, wherein it operates a licensed hair salon.
51. At all times relevant hereto, Petitioner TRAVIN OF W.N.Y., INC. d/b/a
FANTASTIC SAMS was and is a New York corporation with its principal office located at 3812
South Park Avenue, Blasdell, New York 14219, wherein it operates a licensed hair salon.
52. At all times relevant hereto, Petitioner WEST END SALON, LLC was and is a
New York limited liability company with its principal office located at 654 Millard Fillmore
Place, East Aurora, New York 14052, wherein it operates a licensed hair salon.
53. At all times relevant hereto, Petitioner 4059 LOUIS ENTERPRISES, INC. d/b/a
PHOENIX, A SALON was and is a New York corporation with its principal office located at
5655 Main Street, Williamsville, New York 14221, wherein it operates a licensed hair salon.
54. Upon information and belief, and at all times relevant hereto, Respondent
ANDREW M. CUOMO (“Respondent Cuomo”) was and is the Governor of the State of New
York, and was and is acting under color of State law and in his official capacity with a principal
place of business is located at the State Capitol Building, Albany, New York 12224.
55. Upon information and belief, and at all times relevant hereto, Respondent NEW
YORK STATE SENATE (“Respondent Senate”) was and is the body that is subject to a
proceeding for constitutional violations pursuant to Ex parte Young, 209 U.S. 123 (1908).
YORK STATE ASSEMBLY (“Respondent Assembly”) was and is the body that is subject to a
proceeding for constitutional violations pursuant to Ex parte Young, 209 U.S. 123 (1908).

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YORK STATE DEPARTMENT OF ECONOMIC DEVELOPMENT d/b/a EMPIRE STATE
DEVELOPMENT CORPORATION (“Respondent ESDC”) was and is a division of the New
York State Government responsible for commerce and economic development, with a principal
place of business located at 633 Third Avenue, Floor 37, New York, New York 10017.
YORK STATE DEPARTMENT OF HEALTH (“Respondent NYSDOH”) was and is an agency
of the New York State Government with a principal place of business is located at Corning
Tower, Empire State Plaza, Albany, New York 12237.
59. Upon information and belief, and at all times relevant hereto, Respondent MARK
C. POLONCARZ (“Respondent Poloncarz”) was and is the County Executive for the County of
Erie, and was and is acting under color of State law and in his official capacity, with a principal
place of business is located at 95 Franklin Street, Buffalo, New York 14202.
60. Upon information and belief, and at all times relevant hereto, Respondent ERIE
COUNTY DEPARTMENT OF HEALTH (“Respondent ECDOH”) was and is an agency of the
County of Erie, State of New York Government with a principal place of business is located at
95 Franklin Street, Buffalo, New York 14202.
JURISDICTION AND VENUE
61. This Court has jurisdiction over this proceeding under CPLR Articles 63 and 78,
New York State Constitution Article 6, § 7, and the common law of the State of New York.
62. Erie County is a proper venue for this proceeding under CPLR §§ 7804(b) and
506(b) because the material events relevant to this matter took place in Erie County, and because
each of Petitioners’ respective businesses are located within Erie County.

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STATEMENT OF FACTS
63. Petitioners, representing a broad cross-section of salons, barbershops, and
personal care service providers in the Western New York area, have been severely, profoundly,
and negatively impacted by the coronavirus (“COVID-19”) pandemic, and have, through no fault
of their own, been forced to cease their business operations, as required by the acts of
Respondents.
64. When the COVID-19 pandemic first began, Respondent Cuomo was unilaterally
and unconstitutionally empowered by Respondents Senate and Assembly under New York State
Executive Law § 29-a to issue emergency Executive Orders to address the impending pandemic
vis-à-vis the amendment of Executive Law § 29-a only four (4) days prior to Respondent’s
issuing Executive Order 202 (which declared a State Disaster Emergency in the State of New
York) on March 7, 2020. A true and correct copy of Executive Order 202 is annexed hereto as
Exhibit A.
65. By delegating non-delegable legislative powers to the executive, the legislature
abdicated its key role as a cornerstone of the separation of powers structure and essentially
crowned a monarch who could act without legislative limit.
66. Respondent Cuomo indeed, and thereafter issued a series of Executive Orders
designed to restrict and/or limit many types of activities and gatherings, purportedly to curb the
spread of COVID-19, and to protect the public health, safety, and welfare.
67. There is no question that Respondent Cuomo was well intentioned, but as history
has shown, decisions made without the benefit of legislative debate, committee hearings and the
collective wisdom of the bi-cameral legislature, can result in disaster.1
Exhibit B
1
On March 25, 2020, Respondent Cuomo on his own authority, fearing that elderly COVID victims would
overwhelm hospitals, issued an Order requiring nursing homes to accept COVID-19 patients. This resulted in 6,500

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68. For example, under Executive Orders 202.5 and 202.6, issued March 18, 2020,
and Executive Order 202.8, issued March 20, 2020, those businesses deemed “non-essential” by
Respondent ESDC, at the direction of Respondent Cuomo, were subjected to in-person
workforce reduction requirements, whereas those businesses deemed “essential” were directed to
utilize “work from home” procedures to the extent possible. True and correct copies of Executive
Orders 202.5, 202.6, and 202.8 are annexed hereto as Exhibit C.
69. Respondent ESDC, at the direction of Respondent Cuomo in Executive Order
202.6, issued guidance to assist in determining whether a business was/is essential (the “ESDC
Guidance”). A true and correct copy of the ESDC Guidance is annexed hereto as Exhibit D.
70. Notably, those businesses categorized as providing “personal care services” were
not deemed to be essential businesses under the ESDC Guidance. See Exhibit D.
71. Instead, under and pursuant to Executive Order 202.7, issued on March 19, 2020,
Respondent Cuomo issued a blanket prohibition on the operation of “barbershops, hair salons,
tattoo or piercing parlors and related personal care services,” stating that (emphasis added):
Effective March 21, 2020 at 8 p.m. and until further notice, all barbershops, hair
salons, tattoo or piercing parlors and related personal care services will be closed
to members of the public. This shall also include nail technicians, cosmetologists
and estheticians, and the provision of electrolysis, laser hair removal services, as
these services cannot be provided while maintaining social distance.
A true and correct copy of Executive Order 202.7 is annexed hereto as Exhibit E.
72. On March 20, 2020, Respondent Cuomo announced his “New York on PAUSE”
Initiative, which, in relevant part, directed that all non-essential businesses state-wide close their
doors effective on March 22, 2020 at 8:00 p.m. A true and correct copy of Respondent Cuomo’s
March 20, 2020 Press Release detailing the New York on PAUSE Initiative is annexed hereto as
deaths in New York nursing homes. That Order has been deleted from the NYS DOH website, but a copy of it is
annexed hereto as Exhibit B.

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Exhibit F. Notably, the New York on PAUSE Initiative gave those businesses deemed non-
essential, such as Petitioners, only three (3) days’ notice that their businesses were going to
suffer an indefinite (and, needless) closure by order of Respondent Cuomo.
73. It was at this point that Petitioners’ respective businesses were first shut down, for
a span of approximately ten (10) weeks, without any revenue or end in sight; in other words, the
current shutdown of Petitioners’ businesses by Respondents is not the first government-ordered
shutdown Petitioners have suffered since the onset of the COVID-19 crisis.
74. From the time that Respondent Cuomo first declared a State Disaster Emergency
in the State of New York on March 7, 2020, he has issued not less than eighty (80) COVID-19
related Executive Orders, thus demonstrating his willingness to seize the legislative authority
unconstitutionally delegated to him by Respondents Senate and Assembly.
75. In addition to Respondent Cuomo’s Executive Orders, Respondent NYSDOH, at
the direction of Respondent Cuomo, issued emergency regulations, which further codified social
distancing rules and provided the State of New York with enforcement authority to require that
such measures were being taken, which enforcement authority included, but was not limited to,
setting penalties for business found to be in violation of the Executive Orders and Respondent
NYSDOH’s emergency regulations. See 10 N.Y.C.R.R. § 66-3, et seq.
76. On or about April 26, 2020, Respondent Cuomo announced a phased plan to re-
open New York’s businesses, “New York Forward” (the “Re-Opening Plan”) with the re-
opening of certain sectors/industries, and the subsequent loosening of the restrictions
promulgated by Respondent Cuomo, to be considered on a regional basis, as each region of New
York thereafter met the criteria allegedly necessary to protect public health.

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77. Under the Re-Opening Plan, the counties in the State were grouped into ten (10)
regions,2
and re-opening was to be based upon a review of the conditions in each region.
78. Each of the Petitioner’s respective businesses and their premises are located
within the Western New York Region of the Re-Opening Plan.
79. On June 2, 2020, as a part of the Re-Opening Plan, approximately ten (10) weeks
after Petitioners’ respective businesses were first shut down, Respondent Cuomo issued
Executive Order 202.36, which provided, in relevant part, that (emphasis added):
The directive contained in Executive Order 202.7 . . . requiring all barbershops,
hair salons, tattoo or piercing parlors and related personal care services to be
closed to members of the public is hereby modified to allow for the opening of
barbershops and hair salons, only to the extent and in regions consistent with
Department of Health guidance promulgated for Phase Two industries reopening
A true and correct copy of Executive Order 202.36 is annexed hereto as Exhibit G.
80. The Western New York Region of the Re-Opening Plan entered into Phase 2 of
the Re-Opening Plan on June 2, 2020 – the same day Executive Order 202.36 was issued.
81. Thus, as of June 2, 2020, Petitioners were permitted to re-open their businesses,
as long as they complied with unduly harsh restrictions promulgated by Respondent NYSDOH.
A true and correct copy of the “Interim Guidance for Hair Salons and Barbershops during the
COVID-19 Public Health Emergency” (“Interim Guidance”) is annexed hereto as Exhibit H.
82. For example, under the Interim Guidance, Petitioners were required to implement
measures to reduce contact and congregation on their business’ premises, which measures
included, but were not limited to: (i) limiting workforce/customer presence to no more than fifty
percent (50%) of the maximum occupancy; (ii) ensuring that a distance of at least six (6) feet
was maintained among employees and customers at all times, unless the core activity requires a
2
The ten (10) newly-formed regions were and are the Capital, Central New York, Finger Lakes, Mid-
Hudson, Long Island, Mohawk Valley, North Country, New York City, Southern Tier, and Western New York.

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shorter distance; (iii) wearing face coverings if within six (6) feet of others; and (iv) limiting in-
person presence to only those staff who are necessary to be on site. See Exhibit H.
83. As the summer continued (and despite the fact that Petitioners had invested
significant resources to ensure compliance with the Interim Guidance, and none of Petitioner’s
businesses had been uncovered as the cause of any positive COVID-19 infection), it became
apparent that Respondent Cuomo was contemplating the issuance of more severe COVID-19
related restrictions, up to and including the possible closure of certain businesses.
84. On October 6, 2020, Respondent Cuomo announced the new “Cluster Action
Initiative” (the “Initiative”) to address COVID-19 “hotspots” that had come to light throughout
the State of New York.
85. The purported intention of the Initiative was to create an approach to control the
spread of COVID-19 from the immediate area in which a “cluster” of cases had originated.
86. The Initiative divided the cluster areas into three (3) categories, each with more
severe restrictions than the last: (i) Red Zone – the cluster itself; (ii) Orange Zone – warning
zone; and (iii) Yellow Zone – precautionary zone. A true and correct copy of Respondent
Cuomo’s October 6, 2020 Press Release detailing the Initiative is annexed hereto as Exhibit I.
87. The Initiative was further detailed in Executive Order 202.68, also issued October
6, 2020, which provided, in relevant part, as follows:
The Department of Health shall determine areas in the State [of New York] that
require enhanced public health restrictions based upon cluster-based cases of
COVID-19 at a level that compromises the State’s containment of the virus.
Certain activities shall be restricted and any permitted activities, in all three zones
below, shall be conducted in strict adherence to Department of Health guidance.
A true and correct copy of Executive Order 202.68 is annexed hereto as Exhibit J.

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88. Executive Order 202.68 further provided as follows, with respect to the activities
allowable in each of the Red, Orange, and Yellow Zones (emphasis added) (See Exhibit J):
Based upon the severity of the cluster activity, the Department of Health shall
adopt in the most severe, or “red zones,” the following mitigation measures:
Non-essential gatherings of any size shall be postponed or cancelled; [and] all
non-essential businesses, as determined by [Respondent ESDC] based upon
published guidance, shall reduce in-person workforce by 100%[.]
In moderate severity warning areas or “orange zones” the following . . . measures:
Non-essential gatherings shall be limited to 10 people; [and] certain non-essential
businesses, for which there is a higher risk associated with the transmission of the
COVID-19 virus, including gyms, fitness centers or classes, barbers, hair salons,
spas, tattoo or piercing parlors, nail technicians and nail salons, cosmetologists,
estheticians, the provision of laser hair removal and electrolysis, and all other
personal care services shall reduce in-person workforce by 100%[.]
In precautionary or “yellow zones,” the following mitigation measures:
Non-essential gatherings shall be limited to no more than 25 people; houses of
worship shall be subject to a capacity limit of 50% of its maximum occupancy
and shall adhere to Department of Health guidance; any restaurant or tavern must
limit any one seated group or party size to 4 people; and the Department of Health
shall issue guidance by October 9, 2020 regarding mandatory testing of students
and school personnel, and schools shall adhere to such guidance.
89. In effect, if any of Petitioners’ businesses were located in a Yellow Zone, they
would be permitted to continue operating in accordance with the Interim Guidance. However, if
Respondent Cuomo saw fit to advance certain areas into an Orange (or Red) Zone, each of the
Petitioners would be required to close their businesses until further notice. See Exhibit J.
90. On November 9, 2020, Respondent Cuomo announced that the 7-day rolling
average positivity rate in Erie County had surged above 2.5%, and that, as a result, parts of Erie
County would be accelerated into a Yellow Zone under the Initiative. A true and correct copy of
Respondent Cuomo’s November 9, 2020 Press Release is annexed hereto as Exhibit K.

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91. On November 18, 2020, Respondent Cuomo thereafter announced that parts of
the Erie County Yellow Zone “[met] the metrics to transition to an Orange Warning Zone,” and
that the “previous Yellow Zone [was] expanded to include new parts of Erie County seeing
upticks in new cases, positivity, and hospital admissions.” A true and correct copy of Governor
Cuomo’s November 18, 2020 Press Release is annexed hereto as Exhibit L.
92. At this point, Petitioners were therefore required to shut down their businesses,
despite the fact that Petitioners had invested significant resources to ensure compliance with the
Interim Guidance (and had been so complying), and none of Petitioner’s businesses had been
uncovered as the cause of any positive COVID-19 infection.
93. Petitioners were arbitrarily instructed by Respondents, via Respondent Cuomo’s
November 18, 2020 Press Release (Exhibit L), to immediately cease the operation of their
businesses as of November 18, 2020, despite the fact that there was no scientific or otherwise
credible evidence upon which to impose such shutdowns, nor to link any increase in COVID-19
cases (or any cases at all, for that matter) to the operation of Petitioners’ businesses.
94. This second round of shutdowns (occurring from November 18, 2020 up through
and including the date of this Verified Petition and Complaint) is now the second time that
Petitioners have been forced to shut down their respective businesses; as explained above,
Petitioners were previously required to shut down their businesses from March 21, 2020 through
June 2, 2020, the date the Western New York entered Phase 2 of the Re-Opening Plan.
95. As set forth in the Affidavits of each of the respective owners of Petitioners, true
and correct copies of which are submitted to this Court herewith, the first round of shut downs
from March 21, 2020 through June 2, 2020 caused irreparable harm to Petitioners by not only

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closing off the businesses’ only source of income, but also imposing the threat of permanent
closure of such businesses.
96. What makes this second round of business closures particularly egregious is not
only that Petitioners will almost certainly suffer permanent closure of such businesses with these
closures, but also that, this time, Petitioners were complying with all of the restrictions
promulgated by Respondent NYSDOH at the time Erie County moved into an Orange Zone, and
there is no evidence upon which to impose such shutdowns, nor to link any increase in COVID-
19 cases (or any cases at all, for that matter) to the operation of Petitioners’ businesses.
97. In other words, Petitioners are now arbitrarily being forced to shut down their
businesses, at great personal and financial risk to Petitioners, for no reason other than that
Respondents feel that such businesses may contribute to an increase in COVID-19 cases.
98. The actions of Respondents in shuttering Petitioners’ businesses are thus not only
arbitrary and capricious, but are also in direct and explicit violation of Petitioners’ constitutional
rights under the United States and New York State Constitutions, as well as in violation of the
separation of powers doctrine of the New York State Constitution. See N.Y. Const., art. III, sec.
1; N.Y. Const., art. IV, sec. 1; see also Saratoga County Chamber of Commerce, Inc. v. Pataki,
100 N.Y.2d 801, 821-822 (2003) (“[T]h[is] separation of powers requires that the Legislature
make the critical policy decisions, while the executive branch's responsibility is to implement
those policies.”) (internal citations omitted).
99. Petitioners in this action are owned by individuals, by citizens of the State of New
York, who have, in some instances, invested their life savings and their financial futures in their
businesses, that they have worked to build up over years, only to have that investment decimated

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by Executive Orders issued by one man, from one office, and without the benefit of committee
votes and debates and the collective wisdom of Respondents Senate and Assembly.
100. Respondent Cuomo’s Executive Orders, which purport to have the force and
effect of law under Executive Law § 29-a, are vague, inconsistent, and contradictory, and have
resulted in the complete shutdown of Petitioners’ businesses, despite the fact that there is no
scientific or otherwise credible evidence upon which to impose such shutdowns, nor to link any
increase in COVID-19 cases (or any cases at all) to the operation of Petitioners’ businesses.
101. Never before has there been such an intrusion upon the constitutional rights of the
citizens and businesses of the State of New York, and certainly not such a coordinated intrusion
by such a broad swath of State actors such as Respondents.
102. Had Respondents not issued and implemented the Initiative, which arbitrarily
closed Petitioners’ businesses, Petitioners would have continued to comply with the Interim
Guidance previously promulgated by Respondent NYSDOH.
103. The Honorable Justice Neil Gorsuch underscored the arbitrariness of Respondent
Cuomo’s Executive Orders, directives, and associated guidance (including, but not limited to, the
Initiative) in his concurring opinion in Roman Catholic Diocese of Brooklyn v. Cuomo, ___ S.Ct.
___, 2020 U.S. LEXIS 5708 (2020) (emphasis in original):
At the same time, the Governor has chosen to impose no capacity restrictions on
certain businesses he considers “essential.” And it turns out the businesses the
Governor considers essential include hardware stores, acupuncturists, and liquor
stores. Bicycle repair shops, certain signage companies, accountants, lawyers, and
insurance agents are essential too. So, at least according to the Governor, it may be
unsafe to go to church, but it is always fine to pick up another bottle of wine, shop
for a new bike, or spend the afternoon exploring your distal points and meridians.
Who knew public health would so perfectly align with secular convenience?
104. It is exactly this type of social convenience on the part of Respondent Cuomo,
vis-à-vis his unnecessary and arbitrary Initiative, that Petitioners challenge in this proceeding.

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105. Further demonstrating the arbitrary and capricious nature of Executive Order
202.68 and the Initiative, Respondent Cuomo, in his December 7, 2020 press conference, stated
that personal care services, such as salons, are “not major spreaders.”
106. Respondent Cuomo went on to state that: “[S]alons[,] on the numbers, we have so
many protocols on the . . . salons, they are not major spreaders on the numbers.”3
107. Despite Respondent Cuomo’s foregoing description of personal care service
businesses, such as those owned and operated by Petitioners, as “not [being] major spreaders” of
COVID-19, the restrictions in Executive Order 202.68 and the Initiative remain in place.
108. While Respondent Cuomo, and those in concert with him who act to enforce such
arbitrary, capricious, and discriminatory measures, are directing Petitioners to keep their
businesses shut down, each of the Respondents have continued to collect their weekly or bi-
weekly paychecks. In fact, throughout the COVID-19 pandemic, Respondent Cuomo has seen
his own salary increased exponentially, while many of his constituents fold, whether physically,
mentally, or emotionally, under the iron hand of Respondent Cuomo’s government rule.
109. The only way that Respondent Cuomo, and the other Respondents herein, could
fully understand the severity and weight of the hardship now facing Petitioners would be for
each of the Respondents to have their government pay suspended until the COVID-19 pandemic
has subsided, which is exactly the relief being sought, in part, by Petitioners herein.
AS AND FOR A FIRST CAUSE OF ACTION
PURSUANT TO CPLR ARTICLE 78
110. Petitioners repeat and reallege each and every allegation in the preceding
paragraphs of this Verified Petition and Complaint, as if fully set forth herein.
111. Petitioners have commenced this proceeding pursuant to CPLR § 7803.
3
https://www.wgrz.com/article/news/health/coronavirus/cuomo-gyms-salons-are-not-major-spreaders-of-
covid-19/71-d5edf118-5e9d-45de-ba6a-8093e848900a.

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112. Respondent Cuomo’s Initiative has arbitrarily forced Petitioners to close their
respective businesses, and is without sound basis in reason, logic, law, or fact, particularly given
that Respondents have offered no scientific or otherwise credible evidence upon which to impose
such shutdowns, nor to link any increase in COVID-19 cases to the operation of Petitioners’
businesses, which is their burden in the instant proceeding.
113. The actions of Respondents in shuttering Petitioners’ businesses are arbitrary and
capricious within the meaning of Article 78, and Respondents should be enjoined from enforcing
such determinations as against Petitioners.
114. Petitioners will be irreparably harmed should their requests for relief be denied by
this Court, because the “temporary” shutdowns imposed under the Initiative will, for most or all
of Petitioners, result in the permanent closure of their respective businesses. Petitioners will also
be compelled to incur further expenses resulting from forced closure, will be caused to fire or
furlough employees, and will incur the time and costs of remaining shutdown.
115. Accordingly, Petitioners’ application for a TRO and preliminary injunction should
be granted, given the arbitrary and capricious nature of Respondent Cuomo’s Initiative.
AS AND FOR A SECOND CAUSE OF ACTION
DECLARING EXECUTIVE LAW § 29-a TO BE UNCONSTITUTIONAL
117. Pursuant to the doctrine of nondelegation, implicit in all written constitutions, one
branch of government must not authorize another branch of government to exercise the power or
function which it is constitutionally authorized to exercise itself.
118. The New York State Constitution provides for a complete distribution and
separation of powers among the three “co-ordinate and co[-]equal branches” of government.

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County of Oneida v. Berle, 49 N.Y.2d 515, 522 (1980); see also LaGuardia v. Smith, 288 N.Y. 1,
5-6 (1942); N.Y. Const., art. III, sec. 1; art. IV, sec. 1; and art. VI.
119. To wit, Article III, Section 1 of the New York State Constitution provides that
“[t]he legislative power of this state shall be vested in the [S]enate and [A]ssembly,” whereas
Article IV, Section 1, of the New York State Constitution provides that: “The executive power
shall be vested in the [G]overnor[.]” N.Y. Const., art. III, sec. 1; N.Y. Const., art. IV, sec. 1.
120. “[T]h[is] separation of powers ‘requires that the Legislature make the critical
policy decisions, while the executive branch's responsibility is to implement those policies.’”
Saratoga County Chamber of Commerce, Inc. v. Pataki, 100 N.Y.2d 801, 821-822 (2003) (citing
Bourquin v. Cuomo, 85 N.Y.2d 781, 784 (1995)). Moreover, as the New York Court of Appeals
has noted: “[A] foundation of free government is imperiled when any one of the coordinate
branches . . . interferes with another.” County of Oneida, 49 N.Y.2d at 522.
121. “It is the proud boast of our democracy that we have a ‘government of laws, and
not of men.’” Morrison v Olson, 487 US 654, 697, (1988) (Scalia, J., dissenting). “The Framers
of the Federal Constitution…viewed the principle of separation of powers as the absolutely
central guarantee of a just Government.” Id. “Without a secure structure of separated powers,
our Bill of Rights would be worthless, as are the bills of rights of many nations of the world that
have adopted, or even improved upon, the mere words of ours.” Id. “The purpose of the
separation and equilibration of powers in general . . . was not merely to assure effective
government but to preserve individual freedom.” Id at 727.
122. Notably, nowhere in the New York State Constitution is Respondent Cuomo,
given or delegated any legislative authority; rather, Article IV, Section 3 of the New York State

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Constitution provides, in relevant part: “The [G]overnor shall have power to convene the
[L]egislature, or the [S]enate only, on extraordinary occasions.” N.Y. Const., art. IV, sec. 3.
123. As a basis for his authority to issue Executive Orders responsive to COVID-19,
Respondent Cuomo expressly cites to Executive Law § 29-a.
124. Executive Law § 29-a purports to grant Respondent Cuomo legislative authority
vis-à-vis his claimed authority to issue Executive Orders in response to the COVID-19 pandemic
having the full force and effect of law.
125. The provisions of Executive Law § 29-a unlawfully broadened Respondent
Cuomo’s authority to act during official state disasters beyond the COVID-19 crisis.
126. Respondent Cuomo’s extraordinary use of executive authority is shown by his
issuance of not less than eighty (80) COVID-19 related Executive Orders to date, and hundreds
of sweeping changes to various State laws.
127. As the COVID-19 pandemic continues, Respondent Cuomo continues to wield his
executive powers derived from the acquiescence of a complicit legislature.
128. Notwithstanding the above, Executive Law § 29-a provides that this authority is
“[s]ubject to the state constitution, the federal constitution and federal statutes and regulations”;
it does not require Respondent Cuomo to obtain legislative approval prior to declaring a State
Disaster Emergency, nor does it authorize the Legislature to limit or revoke Respondent
Cuomo’s authority to so issue such Executive Orders.
129. In fact, Executive Law § 29-a(2)(a) provides that: “no suspension or directive
shall be made for a period in excess of thirty days, provided, however, that upon reconsideration
of all of the relevant facts and circumstances, the [G]overnor may extend the suspension for
additional periods not to exceed thirty days each.” Executive Law § 29-a(2)(a).

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130. Executive Law § 29-a effectively gives Respondent Cuomo the unlimited ability
to issue Executive Orders having the full force and effect of law, and Respondent Cuomo has so
taken and utilized this statutory authority to impose unconstitutional restrictions on the citizens
and businesses located within, and even without, the State of New York.
131. Under the guise of Executive Law § 29-a, the New York State Legislature has
unconstitutionally delegated its legislative authority to Respondent Cuomo, particularly given
that, just four (4) days before issuing Executive Order 202 through which Respondent Cuomo
declared a State Disaster Emergency in the State of New York State, the New York State
Legislature passed a bill at Respondent Cuomo’s request, which Respondent Cuomo then signed
into law, to expand Respondent Cuomo’s emergency management power and authority.
132. Executive Law § 29-a is in direct violation of the separation of powers doctrine,
as the New York State Constitution vests sole legislative authority in the New York State
Legislature, and is therefore facially and substantively unconstitutional.
133. Under the Supreme Court’s functional test for determining the applicability of
absolute legislative immunity, “whether immunity attaches turns not on the official's identity, or
even on the official's motive or intent, but on the nature of the act in question.” Almonte v. City
of Long Beach, 478 F.3d 100, 106 (2d Cir. 2007); see also Harhay v. Town of Ellington Bd. of
Educ., 323 F.3d 206, 210 (2d Cir. 2003) (citing Bogan v. Scott-Harris, 523 U.S. 44, 54 (1998)).
In particular, “[a]bsolute legislative immunity attaches to all actions taken ‘in the sphere of
legitimate legislative activity.’” Bogan, 523 U.S. at 54.
134. A defendant’s/respondent’s entitlement to legislative immunity does not depend
solely on whether the defendant's acts giving rise to the alleged violation were “taken in the
sphere of legitimate legislative activity.” State Emples. Bargaining Agent Coalition, 494 F.3d at

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88 (citing Bogan, 523 U.S. at 54). Instead, in considering whether the doctrine of legislative
immunity is available to foreclose claims for injunctive relief in official-capacity suits, the Court
must also look more specifically to whether granting the particular relief sought by Petitioners
would enjoin defendants in their legislative capacities. Id. (emphasis added).
135. Thus, before Respondents can invoke legislative immunity to defeat Petitioners’
claims for relief, Respondents must show both that: (i) the acts giving rise to the harm alleged in
the Complaint were undertaken when defendants were acting in their legislative capacities; and
(ii) the particular relief sought would enjoin Respondent in their legislative capacities, and not in
some other capacity in which they would not be entitled to legislative immunity. Id. at 89.
136. The relief being sought by Petitioners in this matter is declaratory and injunctive
in nature; specifically, Petitioners are seeking a declaration of this Court providing Executive
Law § 29-a to be facially and substantively unconstitutional, as an unconstitutional delegation of
legislative power to Respondent Cuomo by Respondents Senate and Assembly.
137. If this Court were to grant Petitioners’ requested relief, Respondents Senate and
Assembly surely would not be “enjoin[ed] in their legislative capacities,” thereby defeating the
second of Respondents Senate’s and Assembly’s requirements to invoke legislative immunity.
State Emples. Bargaining Agent Coalition, 494 F.3d at 89.
138. To be clear, this Court’s grant of Petitioners’ request for the above relief would
have effectively no impact upon Respondents Senate and Assembly moving forward; to the
contrary, the only impact such declaratory and injunctive relief, if granted, would have, would be
to invalidate the scope and breath of Respondent Cuomo’s Executive Orders, as interpreted,
expanded upon, and enforced by Respondent James.

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139. It may, however, serve as a reminder by the Judicial branch of government to the
legislative branch that its authorities are non-delegable and that a crisis does not empower the
legislature to abandon the state and federal Constitutions.
140. By reason of the foregoing, any attempted invocation by Respondent of their
legislative immunity would be improper, baseless, and legally defective, as this Court’s grant of
the requested declaratory and injunctive relief would not enjoin Respondents in their legislative
capacities, to the extent that Respondents did act, or have been acting, in such capacities.
141. Accordingly, Petitioners further seek a declaration providing Executive Law § 29-
a to be facially and substantively unconstitutional, as an unconstitutional delegation of legislative
power to Respondent Cuomo by Respondents Senate and Assembly.
AS AND FOR A THIRD CAUSE OF ACTION
RESPONDENTS’ VIOLATION OF EXECUTIVE LAW § 29-a
143. Executive Law § 29-a(1) grants Respondent Cuomo the authority, by the issuance
of Executive Order(s), to (emphasis added):
[T]emporarily suspend any statute, local law, ordinance, or orders, rules or
regulations, . . . of any agency during a state disaster emergency, if compliance
with such provisions would prevent, hinder, or delay action necessary to cope
with the disaster or if necessary to assist or aid in coping with such disaster.
144. Executive Law § 29-a(2) also provides, in relevant part (emphasis added):
Suspensions shall be subject to the following . . . limits[:] . . . no suspension or
directive shall be made which is not in the interest of the health or welfare of the
public and which is not reasonably necessary to aid the disaster effort; [and] . . .
any such suspension, order or directive shall provide for the minimum deviation
from the requirements of the statute, local law, ordinance, order, rule or regulation
suspended consistent with the goals of the disaster action deemed necessary[.]

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145. Executive Law § 29-a thus purports to grant Respondent Cuomo, by the issuance
of Executive Orders, emergency powers so as to suspend certain laws, and so as issue certain
directives, when a State Disaster Emergency has been declared.
146. Although Executive Law § 29-a confers certain powers upon Respondent Cuomo
(assuming, arguendo, it is constitutional), it also imposes certain restrictions upon him; namely,
that actions taken pursuant to his authority thereunder be “reasonably necessary to aid in the
disaster effort,” and that such actions provide for the “minimum deviation” from the suspended
statute, law, etc., while remaining consistent with the goals of the disaster action.
147. The actions of Respondents in shuttering Petitioners’ businesses via the Executive
Orders, including Executive Order 202.68 and the Initiative, are neither reasonably necessary to
combat COVID-19, nor the minimum deviation from any suspended statute, law, etc., such that
Respondents’ actions remain consistent with the goals of the COVID-19 response.
148. Put differently, neither the uniqueness nor the severity of the COVID-19 crisis
justifies the uneven and draconian measures taken by Respondent Cuomo in response thereto.
149. In fact, there is an irony in the State of New York and Respondent Cuomo
justifying Respondent Cuomo’s restrictions on the “uniqueness” of the COVID-19 pandemic,
when it is the restrictions themselves that make the COVID-19 pandemic so unique.
150. Respondent Cuomo has, to date, issued not less than eighty (80) Executive Orders
since initially declaring a State Disaster Emergency on March 7, 2020.
151. Respondents’ actions in issuing the Executive Orders, and in thereafter issuing
purportedly clarifying guidance and/or attempting to enforce the same, were neither reasonably
necessary, nor the minimum deviation from any suspended statute, law, etc., so as to allow the
State of New York to do its part in combatting the COVID-19 pandemic.

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152. The severe, arbitrary, and unreasonable restrictions placed upon Petitioners via
Executive Order 202.68 and the Initiative have not been revised to reduce the strain thereof (the
closure of Petitioners’ businesses), and moreover, no attempt has been made by Respondents to
advise Petitioners when such restrictions may be lifted, or at the very least lessened. In fact,
Petitioners have been forced to close their businesses under the looming threat of a “Red Zone,”
which implements even more stringent restrictions than those of the “Orange Zone.”
153. The United States and New York State Constitutions place the burden upon the
government to justify its actions, not on the citizenry to wait out its deprivations; this is the
method devised to ensure that laws are cloaked with good faith and founded in rational purpose.
154. In the normal course, the State may police the marginal details of its sphere so
long as its regulations are related to a legitimate government interest. However, when the State
enacts laws that burden fundamental rights, not only must the laws promote a compelling
government interest; they must do so in the manner least burdensome to those rights.
155. In addition, Petitioners have already to extraordinary measures to ensure a clean
work environment for their employees, customers, clientele, and the like; specifically, at the time
Erie County was given the Orange Zone designation by Respondent Cuomo, Petitioners were
complying with all of the restrictions promulgated by Respondent NYSDOH.
156. The failure to narrowly tailor the restrictions imposed in the Executive Orders and
Initiative has also caused significant economic and societal harm without sufficient evidence
showing that any of the restrictions on businesses, and particularly those which are applicable to
Petitioner, have helped to “flatten the curve”; indeed, Respondents have offered no scientific or
otherwise credible evidence upon which to impose such shutdowns, nor to link any increase in
COVID-19 cases (or any cases at all ) to the operation of Petitioners’ businesses.

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157. By reason of the foregoing, Respondent Cuomo has far exceeded his executive
authority under Executive Law § 29-a, whether this claim is considered under the tiered levels of
constitutional scrutiny, or even under the decidedly deferring standards set forth by the Supreme
Court in Jacobson v. Massachusetts, 197 U.S. 11 (1905).
158. Accordingly, Petitioners seek a declaration of this Court providing that
Respondent Cuomo’s actions exceed the scope of his powers under State Executive Law § 29-a,
to the extent the Executive Law is not found by this Court to be unconstitutional.
AS AND FOR A FOURTH CAUSE OF ACTION
RESPONDENTS’ VIOLATION OF THE 5th AMENDMENT – TAKINGS
160. “[T]he Fifth Amendment’s guarantee that private property shall not be taken for a
public use without just compensation was designed to bar Government from forcing some people
alone to bear public burdens which, in all fairness and justice, should be borne by the public as a
whole.” Armstrong v. United States, 364 U.S. 40, 49 (1960).
161. The Supreme Court has “recognized that government regulation of private
property may . . . be so onerous that its effect is tantamount to a direct appropriation or ouster . . .
and that such ‘regulatory takings’ may be compensable under the Fifth Amendment.” Lingle v.
Chevron, 544 U.S. 528, 537 (2005).
162. “The general rule at least is that while property may be regulated to a certain
extent, if regulation goes too far it will be recognized as a taking.” Pennsylvania Coal Co. v.
Mahon, 260 U.S. 393, 415-16 (1922).

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163. Petitioners each had, and continue to have, a protected liberty interest in their
right to operate amid the COVID-19 pandemic without arbitrary governmental interference, and
in their fundamental property right to use and enjoy the land in which they hold a recognized
interest. See MFS, Inc. v. DiLazaro, 771 F. Supp. 2d 382, 440-41 (E.D. Pa. 2011) (citing
DeBlasio v. Zoning Bd. of Adjustment for Twp. of W. Amwell, 53 F.3d 592, 600 (3d Cir. 1995)).
164. Petitioners have now been called upon to sacrifice all beneficial use of their
property in the name of public health; that is, to leave their properties economically and
otherwise idle, or to suffer severe fines, criminal penalties, and/or the revocation of Petitioners’
liquor licenses should Petitioners fail to comply. For this, Petitioners have suffered a taking.
165. Respondents have seized, without just compensation, the property of Petitioners,
and others similarly situated across the State of New York, by forcing the closure or limitation of
specified businesses and restricting travel and free association via the Executive Orders.
166. Respondent Cuomo’s Executive Orders, as interpreted, expanded upon, and
enforced by the other Respondents, have resulted, and continue to result in, an unconstitutional
taking in contravention of the Fifth Amendment, and have adversely impacted Petitioners’ use of
their property, such that, at least temporarily, the Executive Orders have substantially diminished
the economically beneficial and profitable use of said property.
167. Respondent Cuomo’s Executive Orders have rendered useless Petitioners’
property from its economic benefit during the COVID-19 pandemic, which loss categorically
constitutes a taking. See Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1019 (1992).
168. These uncompensated seizures violate the Takings Clause of the Fifth
Amendment, made applicable to States through the Fourteenth Amendment. Without extending

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“just compensation” to Petitioners, the Respondents have jeopardized the sustainability of these
business and the rights of the owners with respect to their property interests.
169. In the alternative, under the framework articulated by the Supreme Court in Penn
Central Transportation Co. v. City of New York, 438 US 104 (1978), Respondent Cuomo’s
Executive Orders, as interpreted, expanded upon, and enforced by the other named Respondents,
constitute a taking based upon “the magnitude of [their] economic impact and the degree to
which [they] interfere[] with legitimate property interests.” Lingle, 544 U.S. at 540.
170. The Supreme Court, in Penn Central, set forth the framework for assessing
whether government action is considered a regulatory taking, identifying “[three] factors that
have particular significance,” including: (1) “[t]he economic impact of the regulation on the
claimant”; (2) “the extent to which the regulation has interfered with distinct investment-backed
expectations”; and (3) “the character of the governmental action.” Penn Central Transp. Co. v.
City of New York, 438 U.S. 104, 124 (1978).
171. Even if the regulation falls short of eliminating all economically beneficial use of
the property, a taking nonetheless has occurred. Palazzolo v. R.I., 533 U.S. 606, 617 (2001).
172. Respondent Cuomo’s Executive Orders, as interpreted, expanded upon, and
enforced by others, including the other named Respondents, constitute a regulatory taking
implemented for a public purpose, and thus, the failure to pay just compensation contravenes the
Takings Clause of the Fifth Amendment. Coalition for Gov't Procurement v. Fed. Prison Indus.,
365 F.3d 435, 478 (6th Cir. 2004); see also Horne v. Dep't of Agric., 576 U.S. 350 (2015)
(“Nothing in the text or history of the Takings Clause . . . suggests that the rule is any different
when it comes to appropriation of personal property. The Government has a categorical duty to
pay just compensation when it takes your car, just as when it takes your home.”).

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Attorneys at Law
173. Accordingly, Petitioners seek a declaration that the issuance of Respondent
Cuomo’s Executive Orders, particularly Executive Order 202.68, constitutes an unconstitutional
taking without just compensation under the Takings Clause, a permanent injunction enjoining
Respondents from enforcing the arbitrary and capricious restrictions against Petitioners in
violation of Petitioners’ rights, and compensatory damages adequate to justly compensate
Petitioners for the regulatory taking of their property.
AS AND FOR A FIFTH CAUSE OF ACTION
VIOLATION OF THE 14th AMENDMENT – EQUAL PROTECTION
175. The Equal Protection Clause of the Fourteenth Amendment to the United States
Constitution (“Equal Protection Clause”) provides, in part: “[N]or shall any state . . . deny to any
person within its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV.
176. At its core, the Equal Protection Clause functions as a guarantee that no person or
group will be denied the protection under the law that is enjoyed by similar persons or groups; in
other words, persons who appear similarly situated must be similarly treated.
177. When those who appear similarly situated are nevertheless treated differently, the
Equal Protection Clause requires at least a rational basis for such disparate treatment, to ensure
that all persons subject to legislation or regulation are indeed being “treated alike, under like
circumstances and conditions.” Engquist v. Ore. Dep’t of Agr., 553 U.S. 591, 602 (2008).
178. Executive Order 202.68 and the Initiative classify Petitioners as personal care
services businesses, and promptly order Petitioners to close their businesses without any basis or
justification, in direct violation of Petitioners’ rights under the Equal Protection Clause.

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179. Petitioners, as a class of personal care services businesses, are being treated
differently than those personal care services businesses located elsewhere in the State of New
York which are not located within an Orange Zone under the Initiative.
180. If one of Petitioners’ businesses were, for example, located on one side of a street
in Erie County, and an identical business were located on the other side of the street in Niagara
County, the hypothetical Petitioner in that case would be required to close their business simply
by virtue of their being located in an Orange Zone, while the identical business across the street
would be permitted to continue operating under the Interim Guidance, despite the fact that the
identical business is located mere feet from that of the hypothetical Petitioner.
181. The fact pattern set forth above underscores the arbitrary and capricious nature of
the disparate treatment now being asserted against Petitioners, to the benefit of other similarly
situated businesses who happen to not be located within an Orange Zone.
182. Petitioners, again as a class of personal care services businesses, are also being
treated differently than those similarly situated businesses in other industries.
183. Under Respondent Cuomo’s Initiative, and given Erie County’s ongoing “Orange
Zone” designation, Petitioners are required to shut down their respective businesses, while other
businesses heretofore deemed “non-essential,” such as hardware stores, pet grooming businesses,
and smoke shops, by way of example only, are permitted to remain open.
184. Therefore, not only are Petitioners being discriminated against when compared to
other businesses in the personal care services industry who are similarly situated, but they are
also being discriminated against when compared to those business in other industries who have
been permitted to remain open to date and who are nevertheless similarly situated.

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185. There is no rational or scientific basis for the disparate treatment of Petitioners by
Respondents, particularly when compared to similarly situated businesses throughout the State of
New York, which operate in virtually the same manner as Petitioners’ facilities.
186. Importantly, Respondents have offered no scientific or other credible evidence or
basis upon which to impose such shutdowns, nor to link any increase in COVID-19 cases (or any
cases at all) to the operation of Petitioners’ businesses. In fact, Notably, not one (1) of the thirty-
one (31) Petitioners has had a COVID-related infection traced to their business.
187. Notably, even before the onset of the COVID-19 pandemic, Petitioners, by their
position as businesses located in Erie County, were required to comport with stringent hygiene
and sanitation requirements, and have since enacted even more exacting requirements under the
Interim Guidance, which are more careful than those that could be found implemented by most
large retail and department stores, such as Walmart, Target, Lowe’s, Home Depot, and the like.
188. Respondent Cuomo has justified the issuance and enforcement of the Executive
Orders by suggesting that the restrictions are necessary to combat COVID-19. However, a
cursory review of the Executive Orders and Initiative-related guidance shows that not only were
the restrictions not reasonably tailored to that goal, but that they discriminate against identically
situated businesses by placing severe restrictions on some, but not others.
189. Respondent Cuomo’s Executive Orders, including Executive Order 202.68 and
the Initiative, are in direct violation of Petitioners’ rights under the Equal Protection Clause.
190. Accordingly, Petitioners seek a declaration that the issuance and imposition of
Executive Order 202.68 and the Initiative violate Petitioners’ rights under the Equal Protection
Clause, as well as a permanent injunction enjoining Respondents from enforcing the arbitrary
and capricious restrictions against Petitioners in violation of Petitioners’ rights.

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AS AND FOR A SIXTH CAUSE OF ACTION
VIOLATION OF THE 14th AMENDMENT – SUBSTANTIVE DUE PROCESS
192. Pursuant to the Fourteenth Amendment of the United States Constitution, which
provides, in relevant part, that no state shall “deprive any person of life, liberty, or property
without due process of law.” U.S. Const. amend. XIV.
193. Petitioners have a liberty and/or property interest in operating and carrying out
their business free from “arbitrary deprivation from the state.”
194. Substantive due process, as recognized by the U.S. Supreme Court, permits courts
to strike down laws that are unreasonable, arbitrary, or without relation to the purpose of
litigation. See Nebbia v. New York, 291 U.S. 502 (1934).
195. Although there exists a legitimate State interest in protecting the public’s health
and welfare, the actions of Respondents are unreasonable, arbitrary, and capricious, and are not
the least restrictive means for achieving the State’s interests.
196. Respondents actions in classifying Petitioners as personal care services businesses
subject to closure under the Orange Zone designation of the Initiative and attempting to force
said closure are unreasonable, arbitrary, capricious, and are not the least restrictive means for
achieving the state’s interests.
197. Respondents’ actions also deprived Petitioners of substantive due process because
the deficiency notice and/or closure order imposed on Petitioners failed to specify the condition
at Petitioners’ places of business purported to be “detrimental to the public health” and was,
consequently, defective.

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198. Petitioners were able to safely operate when Erie County was designated as a
“Yellow Zone”, without any COVID-19 illnesses while following the state and county mandated
protocols and Petitioners were not apprised of any reason they would be unable to safely operate
following the same protocols under the “Orange Zone” designation.
199. There exists no valid or sound scientific or otherwise credible rationale for
prohibiting personal care services from operating, as has been done by Respondents, for the
reason that Respondents have failed to establish how personal care services contribute to the
increase risk of exposure, or spread, of COVID-19. As a result, Respondents actions, including
the Executive Orders and associated guidance, are arbitrary, capricious, constitute an abuse of
discretion, and unlawful based violation of Petitioners’ constitutional rights.
200. Effectively, Respondents are using COVID-19 as a pretense to institute a lethal
and comprehensive prohibition on personal care service businesses in Erie County.
201. Petitioners have no way of knowing when they can resume business. Petitioners
have been denied the ability to generate revenue and the Respondents’ actions are arbitrary and
capricious given that they, in effect, result in the discontinuation of Petitioners’ business
operations, which in most cases will lead to their total and permanent closure.
202. The types of services, in part, provided by Petitioners require minimal to no
person-to-person contact and, therefore, Respondents’ issuance of Executive Order 202.68 and
its related guidance thereon bear no relation to the State’s purported interest in protecting the
public’s health and welfare, and are unduly restrictive of Petitioners’ constitutional rights.
203. Given the types of services being provided by Petitioners, Respondents’ actions in
issuing the Executive Orders, and the purportedly clarifying guidance thereon, bear no relation to
the State’s purported interest in protecting the public’s health and welfare, and are unduly

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restrictive of Petitioners’ constitutional rights, as there is no evidence to suggest that Petitioners
would be placing the public at any greater of a risk of contracting COV1D-19 than those same
individuals would be at if Petitioners were permitted to operate and be fully functional.
204. By reason of the foregoing, Respondents have violated Petitioners’ substantive
due process rights under the United States and New York Constitutions.
205. Without immediate injunctive relief to preclude Respondents from violating
Petitioners’ constitutional rights, Petitioners are being irreparably harmed because they are now
required to immediately shut down their businesses, and as a result of being designated as
“personal care businesses,” will be further required to shut down each time there is an “Orange
Zone” designation, which will results in a total discontinuation of Petitioners’ businesses.
206. Accordingly, Petitioners seek a permanent injunction enjoining Respondents from
enforcing the arbitrary restrictions on Petitioners in violation of Petitioners’ rights.
AS AND FOR A SEVENTH CAUSE OF ACTION
VIOLATION OF THE 14th AMENDMENT – PROCEDURAL DUE PROCESS
208. Procedural due process is similarly a form of due process provided by the
Fourteenth Amendment, and recognized by the Supreme Court, which protects from the loss of
liberties or property interests without the benefit of a fair procedural process. See Bd. Of Regents
of State Colleges v. Roth. 408 U.S. 564 (1972); see also U.S. Const. amend. XIV.
209. Petitioners have a liberty and/or property interest in operating and carrying out
their business free from “arbitrary deprivation from the state.”

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210. Executive Order 202.68 and the Initiative, as applied to Petitioners, constitutes a
permanent adjudicatory determination applied against Petitioners, and permanently classifies
Petitioners as personal care businesses and subject to immediate closure.
211. Erie County was designated as an “Orange Zone” on November 18, 2020. That
designation requires Petitioners’ businesses to be closed notwithstanding Petitioners’ careful
compliance with the applicable protocol to protect public health and safety, and despite the fact
that no COVID-19 cases have been traced to Petitioners’ businesses.
212. Petitioners were not given fair notice of this determination because the Initiative
and related guidance failed to specify the conditions present at Petitioners’ places of business
purported to be “detrimental to the public health,” and were therefore defective.
213. Petitioners were able to safely operate when Erie County was designated as a
“Yellow Zone,” without any COVID-19 cases while following the mandated protocols and
Petitioners were not apprised of any reason they would be unable to safely operate following the
same protocols under the “Orange Zone” designation.
214. There exists no valid or sound scientific or medical rationale for prohibiting
personal care services from operating, as has been done by Respondents, for the reason that
Respondents have failed to establish how personal care services contribute to the increase risk of
exposure, or spread, of COVID-19. As a result, Respondents actions, including the Executive
Orders and associated guidance, are arbitrary, capricious, constitute an abuse of discretion, and
unlawful based violation of Petitioners’ constitutional rights.
215. Essentially, under the pretext of the COVID-19 pandemic, Respondents are
seeking to implement a blanket prohibition on personal care services.

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Attorneys at Law
216. By reason of the foregoing, Respondents have violated Petitioners’ procedural
due process rights under the United States and New York Constitutions.
217. Without immediate injunctive relief to preclude Respondents from violating
Petitioners’ rights, Petitioners will be irreparably harmed because they will be required to keep
their businesses shut down indefinitely, and as a result of being permanently designated as
“personal care businesses,” will be required to shut down each time there is a new “Orange
Zone” designation, which will result in the permanent closure of Petitioners’ businesses.
218. Respondents have stripped Petitioners of their constitutional rights, as protected
by the Fourteenth Amendment, and have done so knowing that Petitioners will have no
substantial means, other than through litigation, to address such actions.
219. Accordingly, Petitioners seek permanent injunction enjoining Respondents from
enforcing the arbitrary restrictions on Petitioners in violation of Petitioners’ rights.
AS AND FOR AN EIGHTH CAUSE OF ACTION
ATTORNEYS’ FEES AND COSTS
221. 42 U.S.C. § 1988(b) provides, in relevant part: “In any action or proceeding to
enforce a provision of [42 U.S.C. $ 1983] . . . the court, in its discretion, may allow the
prevailing party, other than the United States, a reasonable attorney's fee as part of the costs[.]”
222. The Supreme Court, in Hutto v. Finney, 437 U.S. 678 (1978), confirmed the
discretion of courts to award attorney's fees pursuant to 42 U.S.C. $ 1988 in actions where a
plaintiff is seeking redress for the deprivation of constitutional rights under 42 U.S.C. § 1983.
223. In the instant proceeding, Petitioners’ Fourth, Fifth, Sixth, and Seventh Causes of
Action are each brought to enforce a provision of 42 U.S.C. § 1983 – namely, that, under color

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of State law, Respondents have subjected Petitioners to the egregious and substantial deprivation
of certain rights, privileges, and immunities secured by the Fifth and Fourteenth Amendments to
the United States Constitution. See 42 U.S.C. § 1983.
224. These rights include, but are not limited to, Petitioners’ right to be free
government interference with its property rights under the Fifth Amendment, Petitioners’ rights
to equal protection under the Fourteenth Amendment, and Petitioners rights to substantive and
procedural due process under the Fifth and Fourteenth Amendments.
225. Accordingly, Petitioners seek their reasonable attorney fees as part of their costs
in seeking redress for the deprivation of its constitutional rights under 42 U.S.C. § 1983.
WHEREFORE, Petitioners demand judgment as follows:
a. On their First Cause of Action, that the Court issue: (i) a temporary restraining order,
preliminary injunction, and ultimately a permanent injunction, enjoining Respondents
from classifying Petitioners as “personal care businesses” required to close pursuant
to Executive Order 202.68 and the Initiative, and otherwise permitting Petitioners to
remain open for the duration of the COVID-19 pandemic; and (ii) enter an Order
suspending the pay of Respondents for the duration of the COVID-19 pandemic.
b. On their Second Cause of Action, that the Court declare New York State Executive
Law § 29-a to be facially and substantively unconstitutional, as an unconstitutional
delegation of non-delegable legislative authority to Respondent Cuomo;
c. On their Third Cause of Action, that the Court issue declare that Respondent
Cuomo’s actions exceed the scope of his authority under New York State Executive
Law § 29-a, and are an abuse of Respondent Cuomo’s executive powers thereunder;

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Attorneys at Law
d. On their Fourth Cause of Action, that the Court enter an Order: (i) permanently
enjoining Respondents from enforcing Executive Order 202.68 and the Initiative
against Petitioners in violation of the Fifth Amendment; and (ii) suspending the pay
of Respondents for the duration of the COVID-19 pandemic;
e. On their Fifth Cause of Action, that the Court enter an Order: (i) permanently
against Petitioners in violation of the Fourteenth Amendment; and (ii) suspending the
pay of Respondents for the duration of the COVID-19 pandemic;
f. On their Sixth Cause of Action, that the Court enter an Order: (i) permanently
against Petitioners in violation of the Fifth and Fourteenth Amendments; and (ii)
suspending the pay of Respondents for the duration of the COVID-19 pandemic;
g. On their Seventh Cause of Action, that the Court enter an Order: (i) permanently
against Petitioners in violation of the Fifth and Fourteenth Amendments; and (ii)
suspending the pay of Respondents for the duration of the COVID-19 pandemic;
h. On their Eighth Cause of Action, that this Court enter an Order awarding Petitioners
their reasonable attorneys’ fees under 42 U.S.C. § 1988; and
i. Such other and further relief as this Court may deem just, proper, and equitable.
DATED: December 10, 2020
Amherst, New York
Respectfully submitted,
____________________________
Corey J. Hogan, Esq.

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HOGANWILLIG
Attorneys at Law
Steven M. Cohen, Esq.
HOGANWILLIG, PLLC
Attorneys for Petitioners
2410 North Forest Road, Suite 301
Amherst, New York 14068
Telephone: (716) 6 36-7600
chogan@hoganwillig.com
scohen@hoganwillig.com

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