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NY allows indoor dining again in hot spots following lawsuit

ALBANY, N.Y. (AP)  Restaurants in some COVID-19 hot spots in New York can once again offer limited indoor dining in the wake of the latest lawsuit against Gov. Andrew Cuomo's virus restrictions.

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 and New York City's Staten Island.

The decision comes a day after some Erie County restaurants won a preliminary injunction for themselves against the state's enforcement of the indoor dining ban in yellow zones.

Cuomo's counsel Kumiki Gibson said his office disagrees with the decision and is reviewing it.

``While that process is ongoing, to ensure uniformity and fairness, all restaurants operating in orange zones can now operate under rules governing yellow zones,'' she said. ``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. 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.''

State Supreme Court Justice Henry 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.

It's the latest lawsuit that has questioned Cuomo's micro-cluster approachthat he launched in October.

Cuomo proposed imposing COVID-19 restrictions based on addresses, rather than all across the state at once like last spring. Courts have long deferred to Cuomo's emergency authority to respond to the pandemic, but restaurants and houses of worships have seen some success arguing that Cuomo has gone too far.

The Supreme Court barred New York in late November from enforcing Cuomo's 10- and 25-person attendance limits at churches and synagogues in hot spots in parts of Brooklyn and Queens. Cuomo's office called that decision ``irrelevant'' in part because the state ended up easing restrictions in those neighborhoods.

But in late December, the U.S. Court of Appeals for the Second Circuit ruled Cuomo's attendance policy ``discriminates against religious on its face'' and ordered the federal district court to issue a preliminary injunction prohibiting enforcement in red and orange zones statewide. Cuomo's office didn't respond immediately Thursday to a question about the status of those restrictions statewide.

Cuomo's Thursday announcement is welcome news for numerous county officials who have questioned why Cuomo has kept some parts of the state under orange zones even as cases rise elsewhere.

New York now has no red zones and seven orange zones, even as nearly the entire state is seeing high enough positivity rates to qualify under Cuomo's original red zone metrics. Cuomo in December said he would now shutter a part of the state only if hospitalization reaches critical levels even after hospitals boost extra beds and suspend some services.

Red zones shutter nonessential businesses and outdoor dining, while orange zones only allow outdoor dining or takeout and limit gyms and hair salons to 25% capacity. Cuomo originally shuttered schools for in-person instruction in red and orange zones, but later allowed them to reopen with testing.

New York is far below the mid-April peak of as many as 18,000 patients hospitalized at once and 800 deaths in hospitals and nursing homes a day.

Still, hospitalizations and cases have surged in New York this fall and winter. The state now ranks 12th in the nation for its average of hospitalizations and new cases per-capita over the past seven days.

In central and northern New York, Herkimer and Lewis County have averaged a higher rate of new COVID-19 cases per-capita than the state of Arizona over the past seven days. Long Island's Suffolk County, meanwhile, has a higher rate than California.

And Cuomo's approach has often led to disagreements between state and local officials, whose data can often differ, and confusion for residents in hot spots.

In Chemung County, which has had an orange zone since October, the county's dashboard cites 210 active cases, 70 deaths of county residents and 57 residents hospitalized. But the state's data _ which doesn't include hospitalizations by county _ lists 107 deaths as well as 720 new cases in Chemung over the past 10 days.

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