i'm here your honor very good please proceed to the court it's clear during a public health emergency the governor may act in the absence of science courts across the country have almost know that the corner virus is a communicable disease we know that for the transmitted when people are close together we know that there's more transmission indoors than outdoors we know that you're more likely to transmit it to a stranger indoors than to a member of your own pad your papers say that they'll be more people  we've seen indoor dining contribute this to this we see it happen at this time and we have reason to think that putting the time at an earlier closure time will actually reduce the risk where we're not arguing that us when you filed your case in october that prevent him from strict making stricter standards it could provide some stricter rules but not others part of the basis for our challenge always right but why would why wouldn't it prevent him from tightening up restrict even further even that knowing that today in the city of new york we have an increase of sixty five percent of look at the new york times  an increase of sixty five percent of cases positive cases from the average two weeks earlier why why would we ever tie the governor's hands with the basic scientific facts of communicability and aerosol transmission are very well known yes john i assure you i'm trying to answer your question as directly and quickly as possible part of the reason that we're saying that this is unconstitutional is that it's arbitrarily single the new york city vs the rest of the state is arbitrarily selected a time without a basis if the government wanted to put out stricter rules it is possible he could do so so long as he does it with some kind of foundation with some kind of scientific facts and does it evenly enough so that we're not left questioning why donors would you do it just for new york city where we have a lower transmission count at the moment than a lot of western new york counties and leave western new york i hope to continue open at fifty percent capacity all night long mr corbett do you think that the constitution requires exact aileron and highly specific data more than  is available here i mean when you look st you wanted a double blind kind of evaluation based on data about bars in new york versus bars in buffalo really given the urgency of the situation and the changing data the huge national emergency what kind of a kind of scientific data and it's a scientific data that was available in october had nothing to do with the situation in december other than the fact that  maps of exactly where corona virus gets transmitted and when that happens the state sends contact tracing people to speak with people that were infected to collect information on where they went times dates and so forth who they've interacted with that was infected and from that they can see if it is likely that the transmission happened at say a restaurant versus at a small gathering that the data that the government has available to it is  not asking to see all of that we're not asking that there be a perfect that we're just asking that the governor be required to produce something and so far he has produced nothing and your basis for asking him to produce whatever it is you're asking him to produce is what the real or substantial relation test in order for something to have a real or substantial relation the court needs to look at the basis or for the for the restriction don't know each other and people who do know each other that's not enough and more likely to be transmitted one am done eleven pm that doesn't seem like come to me if you said that they're going to be more people in  your restaurant after ten o'clock you said not meaning what i'm trying to say let's say a restaurant has one hundred customers that come in a day and you know we now close the restaurant earlier some of those customers simply won't come to the restaurant anymore but many will instead of coming during that later time decide to come earlier now we know how to work at a given time how do you know that we're honored you know i'm speculating here of course but my point is so is the governor and he shouldn't be because he has the data and we don't you're asking for data of a specificity that it seems to me makes no sense in the cons in the sense in the context of a rapidly changing situation where they you know it seems to me that you're asking for data that is changing weekly and that while he may have it by zip code contact tracing doesn't happen overnight so that you could tell whether diners or restaurants or bars spaces and so on and i if i find a challenging to book for a constitutional violation in what the government has done in a difficult situation but there's no arguing that small businesses and restaurant to particular are suffering mightily that's partially a function of what they offer to people and it's it's it's a very difficult situation for everyone but we understand your this motion was brief passes muster under either the jacobson test or a traditional rational basis for review first the court should be aware that under the current version of the rules the service of food and alcohol is now prohibited after ten pm rather than midnight and the rule applies statewide rather than just in new york city that's moving plaintiff's argument regarding the differential treatment of the city compared to the rest of the state additionally under executive order to a two seventy four gatherings in private residences are now capped at ten rather than fifty most recently the governor announced yesterday that indoor dining in the york city could be shut down entirely soon as monday if hospitalization rates do not stabilize i don't believe that document itself is in the record but that sort of you know tracking those cases as well as the general evolving scientific consensus on how the virus is transmitted including the particular risk posed by indoor congrega state and that is you know the more sort of granular level of code data that my opponent referenced that and western new york parts of western new york and parts the buffalo in particular are subject to cluster zones right now so that does kind of drill down on a more grand granular level to avoid imposing the most severe restrictions on areas that have not suffered the worst outbreak of course frequently did you all to explain how frequently th data is updated terms of constantly updated or are they only once a week how how how do you tailor the drastic restrictions that are being placed on small  appropriate for indoor dining in the next few days for the cluster zones that's not at issue in this case and i can't speak to the precise nature of how those are drawn but  r i can't make a representation right now as to physically how that data will be used in the future but certainly there is contact true thing going going on and we would make every effort to leverage that  my point is simply that it is plaintiff's burden to show that that standard has not been met here because to be more precise it wouldn't be the absence of any relationship but the absence of a incorporates common sense assumptions about human behavior and is based on evolving scientific consensus concerning how the virus is transmitted and rationally respond to that transmission potential by reducing the total number of