By Pete Brush

Law360 (December 8, 2020, 6:22 PM EST) -- A Brooklyn eatery's effort to stop New York Gov. Andrew Cuomo from enforcing a "food curfew" halting dine-in service at midnight looked dead in the Second Circuit on Tuesday, with Circuit Judge Susan L. Carney saying an injunction could hamper the fight against COVID-19.

Judge Carney, who was joined by an equally dubious U.S. Court of International Trade Judge Richard K. Eaton at afternoon virtual appellate arguments, seemed thoroughly disinclined to disturb an October move by Brooklyn U.S. District Judge Brian M. Cogan to keep the policy.

The Graham, a bar and eatery near the New York City's Bushwick and Williamsburg neighborhoods in Brooklyn, said in a September lawsuit that the cutoff is "arbitrary and unsupported by anything except speculation" that kicking diners out combats the spread of COVID-19. Cuomo's office has responded by saying that the rule exists because late-night service can encourage individuals to gather and mingle, increasing transmission risk.

"I mean really," Judge Carney said Tuesday, addressing counsel for The Graham and taking note of rising virus rates across the state. "I find it very difficult to believe that you've come forward asking for an injunction. To enter an injunction would be to tie the governor's hands."

But, pressing the appeal, Graham counsel Jonathan Corbett asserted that the Cuomo administration has never offered any science to back its assertion that an early dining cutoff retards the spread of the virus. Absent that justification, he said, appellate judges shouldn't go along with it.

The restaurant says that under a thought test articulated in the U.S. Supreme Court's landmark 1905 Jacobson v. Massachusetts decision, there has to be a real and substantial relationship between the policy and the restriction, "not the speculative relationship proposed by the state."

In declining to issue an injunction, Judge Cogan disagreed, writing that the policy sits well under Jacobson.

On Tuesday, along with Judge Carney, a scrappy Judge Eaton was clearly also on Judge Cogan's side.

"You seem to think that commonsense shouldn't be applied here," he said. "Your papers say that more people would be in the Graham after 10 o'clock than fewer."

"We're not asking for a lot, your honor," Corbett said in reply.

"You're asking for an injunction!" Judge Eaton shot back.

Without getting into specifics, Cuomo administration lawyer Sarah Rosenbluth said that science does go into the state's decision-making processes related to virus restrictions.

One of the eatery's beefs, that the curfew initially only applied to New York City, and not the rest of the Empire State, is moot, Rosenbluth said, because Cuomo has since extended it statewide.

Moreover, according to Rosenbluth, restrictions on dining in New York City could be ramped up further if transmission rates continue on their current, troubling upward trajectory.

"Indoor dining in New York City could be shut down as soon as Monday if transmission rates do not stabilize," she said, citing recent Cuomo comments.

Judges Carney and Eaton will be joined in making their decision on the injunction by Circuit Judge José A. Cabranes, who was not present at Tuesday's hearing after being called away on an emergency matter.

However the circuit comes out on the injunction, the case before Judge Cogan in Brooklyn continues. The sides have briefed the state's motion to dismiss The Graham's suit. No date for arguments had been set as of Tuesday.

The Graham, which is incorporated as the Columbus Ale House, is represented before the circuit by the Law Office of Jonathan Corbett.

Cuomo is represented by Assistant Solicitor General Sarah Rosenbluth of the New York State Office of the Attorney General.

The appeal is Columbus Ale House v. Cuomo, case number 20-3574, in the U.S. Court of Appeals for the Second Circuit.

--Editing by Michael Watanabe.

For a reprint of this article, please contact reprints@law360.com.