Small Business Legal Defense

Fighting for Western New York’s Businesses

Western New York’s Small Businesses have been unfairly targeted by the unjust and unconstitutional New York State, Executive-Ordered shutdowns. We plan to fight for our community’s businesses by filing suit against the NYS governor’s office, arguing that the solution to our current crisis cannot, and should not be the shuttering of local businesses, removing one’s ability to operate, make a living wage, pay their employees and sustain their way of life.

If you are a local business that has been ordered closed or has had its activities severely restricted you may want to consider joining with other similar businesses to challenge the validity of the governmental action.

If you would like to financially assist these closed or severely-restricted businesses by assisting with their legal fees, please click on donate button below.

Additionally, we are looking to support landlords affected by the COVID-19 Emergency Eviction and Foreclosure Prevention Act, which limits evictions and foreclosures. Under the new measure, landlords will be barred from evicting most tenants until the 1st of May, 2021 in almost all cases. Hoganwillig intends to bring an action defending the rights of mortgage holding landlords, who are responsible to financial institutions and must pay for their properties but are not collecting income from them.

 

How You Can Help Our Local Businesses

We have set up a legal defense fund on behalf of many local-area businesses that are directly affected by the current “Cluster Action Initiative” shutdowns. Our community members can donate to this GoFundMe page. Your donation helps to pay the attorneys’ fees to support the legal challenge for those local businesses deemed “high-risk non-essential” in order to keep their businesses open.

Funds collected to the Go Fund Me account advertised on this page, will go towards supporting our small business actions, for personal care businesses and food service restaurants and bars, not for any actions brought in support of landlords.

Follow HoganWillig & Our Legal Challenge

Resources

HoganWillig COVID19 Resource Center

Resource articles regarding the ongoing COVID19 pandemic as related to small businesses, corporations, real estate transactions and 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.

Legal Complaint

Actionable Issues

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.

Legal Disclaimer

 

DISCLAIMER: This webpage has been published as a service to the general public and, as such, is intended for general purposes only. The information contained within this webpage should not be considered or construed as legal advice. Each reader is advised to consult legal counsel to determine how the contents of this webpage may apply to their particular facts and circumstances. Transmission of the information is not intended to create, and receipt does not constitute, an attorney-client relationship. No attorney-client relationship will be established with HoganWillig PLLC or any of their attorneys unless by a written, fully executed engagement letter provided by the firm.

 

As HoganWillig looks to represent businesses impacted by the New York COVID-19 closure orders, we will utilize this website platform to provide or facilitate links, tools, widgets or other features to allow you to access other sites, services and resources provided by such third parties but also allow such third parties to access campaigns and distribute campaigns created on GoFundMe without obtaining your consent. By contributing to this GoFundMe which is intended to support the various COVID-19 legal challenge initiatives, you consent and agree to be bound by their respective privacy policies and terms of service. By using this website, you accept this disclaimer in full; accordingly, if you disagree with this disclaimer, or any part of this disclaimer, you must not use this website. We reserve the right, at our sole discretion, to change or modify portions of these Terms of Service at any time. When we do this, we will post the revised Terms of Service on this page and will indicate the date of such revision.Your continued use of the Services after the date of any such changes constitutes your acceptance of the new Terms of Service.

Contact Us to Join the Defense

If you are a business owner or landlord and 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
  • 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

Personal Impacts

 

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

 

 

Personal Impacts

 

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

Personal Impacts

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.

Funds collected to the Go Fund Me account advertised on this page, will go towards supporting our small business actions, for personal care businesses and food service restaurants and bars, not for any actions brought in support of landlords.

 

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

Relevant Articles

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.

read more >

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.

read more >

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.

read more >

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.

read more >

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…

read more >

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.

read more >

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.

read more >

Medical Analysis

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.

read more >