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BREAKING: There’s a New Lawsuit to End Outdoor Dining

The pandemic is over, so should outdoor dining end, too?

2:47 PM EDT on July 6, 2023

These outdoor dining structures will have to come down by November 2024: Photo: Josh Katz

The pandemic emergency is over, so should outdoor dining end, too?

That's the latest argument that opponents of the city's permanent Open Restaurants" plan tossed into court on Wednesday, demanding the shut-down of the city's outdoor dining program on the grounds that the pandemic-era boost to the industry is no longer legal.

The suit, filed in Manhattan Supreme Court, makes many of the plaintiffs' previous arguments about the open restaurant program taking away parking, causing noise and congestion, and allegedly inviting rats to move in (though this has been debunked).

But central to the latest effort to undermine the restaurant industry is the claim that the city itself has deconstructed its own pandemic edicts and, as a result, should do the same with the restaurant program.

Multiple extension of pandemic rules "were informed by the claim that implementing social distancing would inhibit the spread of Covid," reads the lawsuit, filed by Michael Sussman, a lawyer from upstate Goshen. "However, in the months that followed, [the city] substantially eased and eventually eliminated such mandates and programs intended to assist state and city residents through the pandemic."

The suit cited the end of pandemic unemployment relief (Sept. 5, 2021), the end of the state's eviction moratorium (Jan. 15, 2022), the end of vaccine and mask requirements (March 4, 2022), the end of test-and-trace (early April) and the end of the mask mandate for 2- to 4-year-olds (June 13, 2022) as evidence that there is "no public health emergency in New York City and the regulatory infrastructure put in place to respond to that emergency was de-constructed."

City Hall deeply disputed the main thrust of the case.

“The Adams administration is confident that the temporary Open Restaurants program, which saved 100,000 jobs at the height of the Covid-19 pandemic, is not only good for our local economy but fully legal," said City Hall spokesman Charles Lutvak.

Indeed, Mayor Adams issued an executive order on June 20, 2023 specifically directing "the Department of Transportation to continue the Open Restaurants program." The executive order cited the city's high unemployment rate and economists' conclusion that recovery in the restaurant industry "has been slower than in other industries and has not returned to pre-pandemic levels."

"Certain emergency measures continue to be necessary for the City’s recovery," the mayor decreed.

The suit could be said to be emboldened by the failure of the City Council and the mayor to finalize the permanent restaurant program via legislation that has been pending before the Council since 2021 and has been amended twice, yet still not passed by the legislature. An earlier lawsuit against the program by the same plaintiffs was thrown out because ... the program itself doesn't exist yet.

The current version of the bill would allow the popular outdoor dining only between April and November. It is unclear what is holding up the legislation, though only four Council members out of the 51-member body have put their name on it: Marjorie Velázquez (D-Bronx), Keith Powers and Julie Menin (D-Manhattan) and Justin Brannan (D-Brooklyn).

The mayor's office statement suggested some frustration with the slow pace of legislative approval for a program that would "support our small businesses, create jobs for New Yorkers, and keep our streets and neighborhoods vibrant."

"It’s time for the Council to put this bill up for a vote, so we can give restaurant owners and communities the clarity and support they need to deliver a superior outdoor dining experience to New Yorkers," Lutvak said in his statement.

The suit is awaiting a court date.

Here's the lawsuit:

This is a breaking story and will be updated soon.

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