HoganWillig COVID19 Resource Center
Resource articles regarding the ongoing COVID19 pandemic as related to small businesses, corporations, real estate transactions, and the general public and community-related matters.
The resource articles contained on our COVID19 resource page are written by attorneys following recent state- and nation-wide executive orders arising during the COVID-19 pandemic. Source material and links to government websites can be found by clicking on the “Government Source Links” section.
Excessive, confusing, and arbitrary restrictions by Governor Andrew Cuomo have forced Western New York businesses to close, which had only recently reopened after shutting down in accordance with the first business closure order of March, 2020.
Despite Gov. Cuomo saying his response to the pandemic is an achievement resulting in lower rates of infection than most other states, he has provided no scientific justification and/or proof for the most recent business closures of certain “high-risk, non-essential businesses.” The distinction of gyms, restaurants, taverns, salons, and other personal care services business as high-risk and non-essential have no real or substantial relation to public health. New York State’s rules are arbitrary and discriminatory decisions not based on science.
If you are a business owner and interested in legally challenging the most recent closure orders in Western New York, please fill out the contact form on this page.
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Contact Us to Join the Defense
If you are a business owner or landlord and are interested in legally challenging the most recent closure orders in Western New York, please fill out the contact form on this page.
(Your Inquiry is Confidential)
We are in this with you. If you have any questions or concerns, please feel free to contact any of the lawyers in our COVID-19 response team or call us at 716-636-7600.
Timeline and Lawsuit Progress:
JAN 22nd | 2020 • The Governor’s Office Issues Updated Interim Guidance Regarding Youth Hockey’s “High Risk” Designation
Following HoganWillig’s press conference on Friday, January 22nd at 2pm EST, and while the lawsuit was being filed, The Governor’s office announced changes to sports deemed “high risk” and stated as such:
“Effective February 1, 2021, participants in higher risk sports and recreation activities may partake in individual or distanced group training and organized no/low-contact group training and, further, may partake in other types of play, including competitions and tournaments, only as permitted by the respective local health authorities (i.e., county health departments).” Full guidance can be found here:
As the Interim Guidance merely punts enforcement from the State to the County government and fails to address the Petitioner’s claim in full, HoganWillig will proceed with its petition.
JAN 22nd | 2020 • HoganWillig Files Petition Challenging Youth Hockey’s “High Risk” Sports Designation
HoganWillig files petition on behalf of New York State Amateur Hockey Association, INC. Western New York Amateur Hockey League, INC. and H.P.P. Rinx, INC., seeking injunctive relief: issuing a temporary restraining order, preliminary injunction, and ultimately a permanent injunction, enjoining Respondents from enforcing restrictions imposed against Petitioners on the basis of ice hockey’s designation as a “high risk” sport, and permitting Petitioners to operate as if under the proper “low risk” designation. Injunctive relief is being sought against the enforcement of arbitrary and capricious restrictions as lacking scientific or medical data in support.
JAN 14th | 2020 • ECDOH Allows All Restaurants in the County to Operate Under Yellow Zone Restrictions
The Erie County Health Department says it is following a judge’s order and will apply yellow zone rules to all food service facilities in Erie County’s orange zone. The ECDOH released the following statement:
The Erie County Department of Health (ECDOH) is providing the following statement related to enforcement of NYS Microcluster Guidance.
After consultation with our legal counsel, and based solely on the preliminary injunction issued by NYS Supreme Court Justice Henry J. Nowak on January 13, 2021, ECDOH public health sanitarians will apply “yellow zone” criteria to all permitted food service facilities that are currently located in “orange zones.” Practically, this means all restaurants in Erie County will be able to offer indoor dining at 50% capacity, as long as yellow zone measures including a maximum of four people per table and six feet of distance between tables are maintained.
This action is only effective as long as Judge Nowak’s preliminary injunction is in place. If an appellate court of law should rule differently, ECDOH will follow such new judicial order.
Also, restaurants and bars must end on-premise food and beverage consumption at 10 p.m. pursuant to current New York State regulations.
All permitted food facilities should be aware this action only applies to ECDOH’s enforcement of cluster zone regulations. It does not apply to enforcement that may be taken against any entity permitted by the New York State Liquor Authority.
ECDOH public health sanitarians are continuing educational outreach to permitted facilities along with complaint investigations and inspections as appropriate.
JAN 13th | 2020 • Justice Henry J. Nowak Grants Preliminary Injunction to Named Petitioners in Restaurant Suit
A preliminary injunction is granted to all parties named in the amended petition filed on January 8th, 2021 (NYSCEF Doc. No. 109) and are permitted to operate under the prior Yellow Zone restrictions and pursuant to the DOH’s Interim COVID-19 Guidance (NYSCEF Doc. No. 2).
In his decision Judge Nowak wrote in part, “Considering the record presented, this court cannot find evidence that the State had a rational basis to designate portions of Erie County as an Orange Zone on November 18, 2020.”
He also said the restaurants demonstrated the orange zone caused hardship to residents, unemployment, and loss of revenue.
JAN 11th | 2020 • Salon Case All Dolled Up Beauty Bar, LLC et al. v. Andrew M. Cuomo, et al - Government Papers Due
The government’s papers are due, in response to Petitioners’ motion papers requesting a preliminary injunction. Petitioners’ reply papers will be filed and served by January 13, 2021 and a hearing, at which oral argument will occur, is scheduled to take place on January 14, 2021, before Justice Ward at 9:30 in the morning.
JAN 8th | 2020 • 85+ Restaurants Represented in Legal Filings, Argue Their Case Before State Supreme Court Justice Henry Nowak
Attorneys representing more than 85 local restaurants, as well as attorneys representing the government and its various entities and officials, argued their cases in front of State Supreme Court Justice, Henry Nowak, Friday afternoon, January 8, 2021. It is the Petitioners’ position that State data does not show restaurants are contributing to the spread and infection of the Erie County population, and that Erie County’s COVID-19 cases have continued to go up even as indoor dining is shut down, meaning restaurants are not causing the spread of coronavirus. Conversely, Albany’s attorneys maintain that it is still not safe to reopen indoor dining. Unlike other businesses where masks must be worn at all times, diners take off their masks while inside and seated at a table.
After hearing oral arguments, Justice Nowak on Friday did not immediately deliver a decision, but instead reserved giving his decision at a later date, likely Wednesday, January 13, 2021.
DEC 24th | 2020 • Restaurants Join Suit Fighting Erie County Ban on Indoor Dining
Approx. 70 Restaurants join Suit of NYS Officials and Govorner Andrew Cuomo, in Regards to Orange Zone Indoor Dining Restrictions, specifically affecting Erie County.
DEC 21st | 2020 • Erie County Supreme Court Twice Re-Assigns Judge to Personal Care Business Lawsuit
The Erie County Supreme Court has assigned Judge Emilio Colaiacovo to Personal Care Business Lawsuit.
DEC 18th | 2020 • FOIA/FOIL Requests Submitted
HoganWillig submits FOIA/FOIL requests for COVID-19 studies, statistical information, and metrics to the following entities:
- New York State Governor’s Office
- New York State Department of Health
- New York State Liquor Authority
- New York State Department of Education
DEC 11th | 2020 • Orange Zone Designation Changes Allow Salons to Reopen, Lawsuit Moves Forward
Governor Cuomo announces a change to the Orange Zone Microcluster Restrictions, allowing salons and gyms in orange zones to re-open, but with restricted capacity and mandatory testing for personal care employees on a weekly basis. The plaintiffs named in HoganWillig’s suit plan to move forward with the lawsuit as they have been forced to shut their doors to this point and have suffered from significant loss of revenue. Additionally, if Erie County is put into a red zone, under the current guidance, that would mean personal care businesses shutting their doors for a third time.
DEC 11th | 2020 • Erie County Supreme Court Assigns Judge to Personal Care Business Lawsuit
The Erie County Supreme Court Assigns Judge Paul B. Wojtaszek to HoganWillig’s suit for Personal Care Businesses.
DEC 10th | 2020 • HoganWillig Files Lawsuit on Behalf of 38 Erie County Personal Care Businesses
The lawsuit, filed by HoganWillig Attorneys at Law, includes plaintiffs representing hair salons, barber shops, aestheticians, and beauty parlors across Erie County.
People and entities listed in the lawsuit are Gov. Andrew Cuomo, the New York State Senate and Assembly, the state’s Health and Economic Development departments, Empire State Development Corporation, Erie County Executive Mark Poloncarz, and the Erie County Department of Health.
The lawsuit states that the businesses’ 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” by the state or county.
The lawsuit also seeks an injunction, stating that “petitioners will suffer immediate and irreparable harm if the relief requested is not granted, as a second temporary closure of their respective businesses” under Orange Zone guidelines. Temporary Restraining Order & Injunctive Relief View the Verified Petition and Complaint Here.
NOV 20th | • Launch of Legal Fund for WNY Business Closure Defense
The legal defense fund is set up by HoganWillig Attorneys at Law is on behalf of several Western New York businesses including gyms, restaurants and salons that are directly affected by the current “Cluster Action Initiative” shutdowns. By donating, individuals help lessen the costs associated with bringing an action to court for these businesses, deemed “high-risk non-essential”, to keep their businesses open.
NOV 18th | 2020 • Orange Zone Designations Mandate Closures of Many Personal Care Businesses in Erie County
“Governor Andrew Cuomo announces on the 18th of November that most of the towns and villages in the county of Erie are under an Orange Zone microcluster designation.
“High risk”, non-essential businesses, including gyms and salons, will have to close. Retail such as stores and malls are allowed to remain open but must continue to follow rules regarding capacity.
New York State deems the following businesses as “high-risk non-essential”:
- Gyms, fitness centers or classes
- Barbers and hair salons
- Tattoo or piercing parlors
- Nail technicians and nail salons
- The provision of laser hair removal and electrolysis and all other personal care services
In October of 2020 I moved into the locked salon facility I am contracting through, and after six to eight months of acquiring my DBA, the proper equipment, licenses, products, furniture, and decor I finally opened 9 days before this last “orange zone” designation. I am sure you can imagine this has been devastating. I have put over $10,000 dollars of my money into starting this business in my early twenties, for it to be open for only 8 days. I am in an incredible amount of debt, and If I do not open within the next couple of months, I am not sure that I will be able to afford to keep my business.
As far as my safety protocols, clients enter a locked facility, their temperature is taken at the door, both I and my client wear a mask for the entire session, their hands are sanitized upon entry, and then washed. They then are required to fill out a COVID questionnaire. I wash my hands and wear gloves through the entire session, and all equipment is either disposed of, or put into Barbacide between sessions. Lastly, all surfaces are thoroughly cleaned with department of health approved cleaners. I have invested in thorough and EXPENSIVE cleaning processes and procedures to keep myself and my clients safe, after such an investment to be shut down is a death sentence for a small business like mine.
– Ciara –
WNY Independent Beauty Salon Owner
We have a private studio located inside a secure salon facility. We are always at least 6 feet away from each other. All beauty professionals wear masks throughout all services and clients are required to wear masks as well. Hand sanitizer is available at the front door, and when you enter our studio. I only service one person at a time, and thoroughly sanitize between clients. There is never more than 4 people in our triple wide studio. Everything the client touches is cleaned with CavaCide®. There have been zero cases of COVID-19 that have been tied to my business. We have been forced to shut our doors twice now since March, and because of the reduction in capacity while I have been open, I am looking at a loss of revenue of $4,000 to $5,000 a month. I am not sure how much longer I can operate under these circumstances and am looking at having to shut my doors if this continues much longer.
– Marcie –
WNY Independent Beauty Salon Owner
I have gone through two shutdowns since March 15th and have had to lay off 2 of my valued employees. I was able to partially open in August before a proper reopening in September, but the services I was able to do, which includes body treatments and waxing, only account for 10% of my usual business. In September I was able to fully re-open again for facials. I use a face shield and a mask as part of my extensive health and safety protocols. I have lost product that can no longer be used or sold because it expired during the first shutdown, and have spent about $1,000 on PPE, only to be shut down yet again.
No cases of COVID-19 have been traced back to my salon.
– Janine –
WNY Salon Owner
Ready to take the next step and support our local businesses?
Contribute to the Cause
You can help make an impact today! Donations will help lessen the costs associated with bringing an action to court on behalf of these businesses. Visit the Go Fund Me Page for Local Western New York Businesses.
Unforeseen Challenges Will Occur, Our Legal Team is Here to Help WNY Businesses Respond.
HoganWillig has assembled a team of lawyers across key practice areas to monitor and provide guidance on the legal challenges that will inevitably affect many as a result of the COVID-19 pandemic. Our team (including CPA’s and MBA’s) can be a resource for any business-related questions. HoganWillig has been closely following new executive orders for businesses and how these restrictions impact employers around the country and here in New York State.
If you want to join our current legal challenge, fighting the recent decision putting many towns and businesses in Western New York, into the governor’s “Orange Zone” micro-cluster designation effectively shuttering many small businesses for a second time, please use the contact form above. Your inquiry is CONFIDENTIAL.
From Corey J. Hogan Esq.
“I’m genuinely concerned we are losing our Constitutional Republic!”
Effects of COVID19 Restrictions
“States that have given individuals, businesses, and schools the freedom to return to most activities with proper safety precautions in place are faring relatively well, while those that have imposed unnecessary restrictions have a lot more people out of work, children falling behind, households struggling to get by, and small businesses collapsing.
According to a wallethub.com ranking of states by their level of COVID-19 restrictions, the 10 states with the fewest restrictions averaged 5.9% unemployment in September, while the 10 with the most restrictions averaged 8.2% unemployment.” – Heratage.org
9 Top N.Y. Health Officials Have Quit as Cuomo Scorns Expertise
FEB 2021 | NYS Officials Resign
The deputy commissioner for public health at the New York State Health Department resigned in late summer. Soon after, the director of its bureau of communicable disease control also stepped down. So did the medical director for epidemiology. Last month, the state epidemiologist said she, too, would be leaving.
Erie County Salons Allowed To Reopen, But Pushing Forward With Lawsuit
DEC 2020 | HoganWillig Moves Forward with Lawsuit
“Before a government can interfere with somebody’s constitutional rights they have to show a compelling state interest and they have to show that there is a factual basis to do what they’re doing and they simply can’t show that,” attorney Steven Cohen said.
The plaintiffs plan to go forward with the lawsuit for several reasons. They have still been forced to shut their doors to this point and if Erie County goes to a red zone could have to do so for the third time.
Erie County businesses file lawsuit, target COVID restrictions
DEC 2020 | HoganWillig Files Suit
HoganWillig has filed a lawsuit on behalf of 38 county businesses representing hair salons, barber shops, aestheticians, and beauty parlors. The lawsuit states that the businesses’ 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” by the state or county.
The Great Barrington Declaration
2020 | Learn About the Declaration
As infectious disease epidemiologists and public health scientists we have grave concerns about the damaging physical and mental health impacts of the prevailing COVID-19 policies, and recommend an approach we call Focused Protection.
Running Tally on Collateral Damage from NY Executive Order 202
JUNE 2020 | NYS on PAUSE
A review of permanant business closures, bankruptcies, layoffs, unemployment and additional national crises as a result of government mandated business shutdowns.
WHO Warns Against COVID Lockdowns
OCTOBER 2020 | WHO Warns Against COVID Lockdowns
The World Health Organization has warned leaders against relying on COVID-19 lockdowns to tackle outbreaks — after previously saying countries should be careful how quickly they reopen.
WHO envoy Dr. David Nabarro said such restrictive measures should only be treated as a last resort…
Its Impossible to be a Small Business Owner in NY
MAY, 2020 | Hardships for Salon & Gym Owners Continue
Salons, fitness centers, gyms and other personal care businesses have spent thousands of dollars to make sure customers are safe during the COVID-19 pandemic.
“It’s been a large investment,” said Terrie Pozantidis, owner of Terrie’s Workout Center on Hertel. “We’ve spent seven thousand dollars.”
These businesses once again find themselves shut down.
139 Clients & No COVID Infections at Hair Salon
NOVEMBER, 2020 | Salons COVID Guidelines Seem to Work
In May, two hairstylists at a Missouri salon who had COVID-19 but wore face masks cut the hair of 139 masked customers for roughly a week, and did not infect a single client. They also did not infect any of the clients’ contacts or any of the other stylists in the salon, researchers report.
MAY, 2020 | Analysis by Medical Doctor
Several studies conducted at the beginning of the world’s knowledge of COVID-19 operated under medical based assumptions to create models that predicted staggering death rates, overwhelmed hospitals and medical suppliers, and modes of transmission. Those conclusions created a fear of COVID-19 and the capabilities of the world’s healthcare systems, or lack thereof.