Queens Restaurant Leads $2 Billion Indoor Dining Lawsuit Against NY

For weeks, various restaurants industry groups have intimated that restaurants would begin to sue the city and state unless officials offered more concrete plans for bringing back indoor dining. And now, the first such major lawsuit has been filed: a Queens restaurant, joined by hundreds of others, has filed a $2 billion class action lawsuit against New York to try to force the return of indoor dining.

Il Bacco, a three-level Italian restaurant in Little Neck, has sued Governor Andrew Cuomo, Mayor Bill de Blasio and the attorney general’s office for damages due to the COVID-19 guidelines.

The restaurant is situated just 500 feet from the Nassau County border, where indoor dining is allowed at 50% capacity. “If a restaurant patron travels five hundred feet east or one city block east from [Il Bacco], patrons are in Nassau County and can enjoy indoor dining in an air conditioned room,” the suit reads. “According to Governor Cuomo, it is dangerous to eat at [Il Bacco] in Little Neck, Queens, but it is safe to dine indoors a few hundred feet east.”

The lawsuit argues that the restaurant “is losing all of its customers to restaurants in Nassau County and is suffering irreparable harm. There is absolutely NO SCIENCE that will prove that 'indoor dining' is safer one city bock east from [Il Bacco].” It also argues that Cuomo's executive orders about the restaurant safety guidelines have been “random, arbitrary and unfair.”

According to attorney James Mermigis, 350 more restaurants have signed onto the lawsuit so far. Mermigis was also the lawyer who represented over 1,500 gym owners around the state in a class action lawsuit in August; that lawsuit resulted in Cuomo announcing that gyms could reopen at one third capacity, although NYC won't allow it until gyms and fitness centers can be properly inspected.

"The NYC restaurants can no longer survive without indoor dining. We hope to get the same outcome as we did for the gyms," Mermigis told Gothamist. "We want the State and the City to show us the science that indoor dining in NYC is more dangerous or problematic than indoor dining in Albany or Buffalo or Rochester. These restrictions are random and arbitrary and we intend to challenge them."

“Every restaurant is packed and me, a block and a half away, I can’t open,” Joe Oppedisano, owner of Il Bacco, told Newsday. He said he's only been able to retain about a third of his staff of about 60, and he's terrified he'll have to shutter if things don't change before winter comes and ends his ability to do outdoor dining.

In response to the lawsuit, Rich Azzopardi, a senior adviser for Cuomo, said in a statement: "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. We understand that some people are unhappy, but better unhappy than sick or worse."

New Jersey Governor Phil Murphy announced on Monday that restaurants in the state could resume indoor dining starting this Friday, with a 25 percent capacity rule along with all the other COVID-19 safety guidelines already established. But so far, Cuomo and de Blasio have been reluctant to resume indoor dining in NYC, due largely to the density of the city and concerns about a widespread lack of compliance with current social distancing guidelines.

De Blasio reiterated the city's position on Monday: "I do expect and pray for a vaccine in the spring that would allow us all to get more back to normal," he said during a press conference. "But I will absolutely tell you that we're going to keep looking for that situation where we can push down the virus enough that we would have more ability to address indoor dining. We'll have more to say on that in the coming days, but it would take a huge step forward to get to that point, that's the truth."

Cuomo acknowledged on Monday that with New Jersey restarting indoor dining, there would be more pressure for the state to bring it back to the city. He said that NYC restaurants were now at a "competitive disadvantage" because diners could cross the bridge or tunnel and eat in New Jersey.

"I'm aware that restaurants in New York City are very unhappy with doing no indoor dining, I understand the economic consequences, their argument will now be exacerbated [because of NJ] and it's something that we're watching and considering," he said. "I want as much economic activity as quickly as possible, we also want to make sure transmission rate stays under control. That is the tension."

More than 100 other NYC restaurants, most located on Staten Island and in Bay Ridge, are also planning a class-action lawsuit demanding the city and state allow for the return of indoor dining. Andrew Rigie, executive director of the NYC Hospitality Alliance, told Gothamist that legal action is still on the table for his group as well.

"Every day that goes by creates more uncertainty, fear and anger among small business owners, many of whom are exhausting personal savings waiting for a plan to reopen," he said. "If they know there's no way they're gonna be reopen until the new year, they may toss in the keys, but without guidance, they may keep exhausting personal savings and go bankrupt personally."