indoor dining

NY Orange Zones, Like in Westchester, Get to Enjoy Indoor Dining Again — For Now

The allowance is temporary until the court proceedings are resolved; the governor's office strongly disagrees with the state Supreme Court ruling

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What to Know

  • A state Supreme Court judge ruled in favor of a number of Erie County restaurants that had sued the state over their orange cluster zone designation; the judge granted a preliminary injunction
  • Gov. Andrew Cuomo's legal counsel says the state is reviewing the decision, with which it strongly disagrees; in the meantime, it is allowing orange zone restaurants to operate under yellow zone rules
  • As of Cuomo's latest update, there are seven orange cluster zone areas in the state, including parts of Westchester County and NYC, where indoor dining is banned independent of the cluster rules

New York has temporarily OK'd indoor dining in orange cluster zones after a state Supreme Court decision this week in favor of some Erie County restaurants that had sued over the restriction, Gov. Andrew Cuomo's legal counsel said Thursday.

That means parts of Westchester County that had been under those mid-level restrictions since mid-December was allowed to resume indoor dining -- at least temporarily. Areas of Staten Island also have been under orange zone rules since that time, but Cuomo has banned indoor dining in the entirety of New York City independent of his cluster zone program. As of now, those restaurants are still closed.

Up to four people per table can now dine indoors in seven so-called “orange zones” located in counties with some of the state’s highest rates of COVID-19 cases or hospitalizations: including Monroe County in the Finger Lakes.

The restaurants in the orange zones can now operate under yellow zone rules — including capacity capped at 50 percent. But for the restaurants that got at least a temporary green light, that is plenty to help keep them afloat. Establishments in cities like Port Chester have been stuck in limbo, as they are surrounded by places (like Rye and Greenwich) that were able to offer indoor dining. Now owners just hope customers are comfortable coming back.

A number of restaurants across the state, including many in New York City, had sued over the indoor dining ban, but State Supreme Court Justice Henry Nowak granted a preliminary injunction on it being enforced in the Erie case Wednesday.

Under Cuomo's cluster zone rules, orange zones -- the second-most restricted in the tier of three -- ban indoor dining completely and limit al fresco to four people per table. Schools also move all-remote unless they test out; high-risk nonessential businesses close and gatherings are capped at 10 people max.

In his decision, Nowak ruled the Erie County restaurants that found themselves in orange zone areas could return to the indoor dining rules that apply for yellow zones, which allow dine-in but only with four people maximum per table.

Nowak said he could not “find evidence that the state had a rational basis to designate portions of Erie County as an orange zone" and that the restaurants would suffer “irreparable harm" without the injunction.

According to Cuomo's latest guidelines, which were last updated in mid-December, orange zone restrictions apply for areas that have seen a 4 percent positivity rate or higher for 10 straight days and the area has reached 85 percent hospital capacity or the Department of Health determines the area has an unacceptably high rate of hospital admissions.

As of Thursday, Erie County has a rolling positivity rate of 6.3 percent. The governor's website does not break hospitalization data down by county, but state data shows no region in the state has hit 85 percent hospital capacity. That would trigger more aggressive shutdown measures. As of Thursday, Western New York, Erie County's region, had 32 percent and 36 percent of hospital beds and ICU beds available, respectively, based on a seven-day rolling average.

Daily Percentage of Positive Tests by New York Region

Gov. Andrew Cuomo breaks the state into 10 regions for testing purposes and tracks positivity rates to identify potential hotspots. Here's the latest tracking data by region and for the five boroughs. For the latest county-level results statewide, click here

Source: ny.gov

It wasn't immediately clear if the Department of Health assessment is what prompted the orange zone restrictions. Erie County has confirmed nearly 50,000 total COVID cases to date, more than 69 percent of the 71,273 confirmed cases within the five counties that make up the Western New York region since March.

Cuomo's office says it is reviewing the ruling. The parties will have to go back to court to determine if the injunction will become permanent.

In the meantime, Gibson said the state would allow all orange zone restaurants to operate under yellow zone rules "to ensure uniformity and fairness."

"We disagree with the court's decision and its impact on public health as federal CDC data clearly demonstrates indoor dining increases COVID-19 spread," Gibson said. "From the start of this pandemic, the state has acted based on facts and the advice of public health experts, and we will continue that approach."

As of Cuomo's latest update, there are seven orange cluster zone areas in the state, including the Erie County one. Parts of Staten Island, Westchester County, Monroe County, Chemung County, Onondaga County and Niagara County (also in the Western New York region) are classified as orange zones.

The NYC Hospitality Alliance, which represents the city's restaurants, among other business, blasted Cuomo for the ongoing indoor dining ban in light of the ruling.

"The court's preliminary decision and the governor’s action to remove indoor dining restrictions in all 'orange zones' makes the status of the indoor dining ban in New York City all the more outrageous and destructive to thousands of restaurants across the five boroughs, especially when our infection and hospitalization rates are lower than most counties in the state where indoor dining is permitted at 50 percent occupancy," its executive director, Andrew Rigie, and counsel, Robert Bookman, said in joint statement Thursday.

"Continuation of the indoor dining ban in New York City is divorced from any of the data and criteria the State has articulated and must be ended now,” they said.

Copyright NBC New York/Associated Press
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