As the state navigates painfully through the mendacious COVID-19 pandemic and all its permutations, New York bars and restaurants must continue to close at 10 p.m. after an appellate judge stayed a lower court’s order Wednesday allowing them to operate beyond the state-mandated closing time.

That may come as a shock to some and a disappointment to many, especially restaurant owners and steady, loyal patrons, but for now the decision may be for the best. A federal judge also ruled Tuesday that the state’s coronavirus-related curfew is constitutional.

Associate Judge Patrick H. NeMoyer of the state Supreme Court’s Fourth Appellate Division, Rochester, stayed a Western New York Supreme Court judge’s restraining order allowing 91 dining establishments in Erie and Monroe counties that filed a lawsuit challenging Gov. Andrew Cuomo’s curfew to stay open past 10 p.m.

It’s quite possible a loud bell rang for NeMoyer when he saw the names of the counties, where coronavirus microclusters ran rampant for several weeks. The lower court’s decision remains, but by the appellate judge staying the state Supreme Court justice’s ruling, the lower court’s decision is not enforceable, pending further action.

Gov. Andrew Cuomo’s order requires New York’s restaurants — allowed to serve patrons indoors at 50% capacity outside New York City — to stop on-premises dining between 10 p.m. and 5 a.m. Establishments are permitted to stay open later for takeout and delivery.

Allowing after-hours delivery and takeout sounds like a good idea, but it is not likely that many patrons will order food in any great number while they sleep. Restaurant owners have good reason to object to the court’s decision on sticking with the curfew.

In the end, the health and safety of patrons will win out, as it has for almost a year. We all know restaurants are in trouble, but owners have adapted to new conditions. If diners are not protected, the economic plight of restaurants will become much worse.

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Johnson Newspapers 7.1

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