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21-2860-cv

Heidel. v. Governor of New York State

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

Rulings by summary order do not have precedential effect. Citation to a summary order filed 

on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate 

Procedure 32.1 and this Court’s Local Rule 32.1.1. When citing a summary order in a 

document filed with this Court, a party must cite either the Federal Appendix or an 

electronic database (with the notation “summary order”). A party citing a summary order 

must serve a copy of it on any party not represented by counsel.

At a stated term of the United States Court of Appeals for the Second Circuit, held at 

the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, 

on the 31st day of January, two thousand twenty-three.

PRESENT: PIERRE N. LEVAL,

JOSÉ A. CABRANES,

WILLIAM J. NARDINI,

Circuit Judges.

ANDREW HEIDEL, R. ANDREW HEIDEL INC., DBA

The Way Station, FRANKLIN ORTEGA, PO

ITALIANISSIMO INC., JOHN MEROLLA, NYMS

PRODUCTIONS, INC., DBA Murdered by the Mob,

individually and on behalf of classes of all others 

similarly situated,

Plaintiffs-Appellants, 21-2860-cv

v.

GOVERNOR OF NEW YORK STATE, in her official 

capacity, THE STATE OF NEW YORK, ERIC ADAMS,

THE CITY OF NEW YORK, KATHY HOCHUL, MAYOR 

OF NEW YORK CITY, in his official capacity,

Defendants-Appellees.

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* The Clerk of Court is directed to amend the caption as set forth above.
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FOR PLAINTIFFS-APPELLANTS: JOHN G. BALESTRIERE, BALESTRIERE 

FARIELLO, New York, NY.

FOR DEFENDANTS-APPELLEES: ELIZABETH A. BRODY (Barbara D. 

Underwood, Ester Murdukhayeva, on the 

brief), for Letitia James, Attorney General, 

State of New York, New York, NY.

REBECCA L. VISGAITIS (Richard Dearing, 

Claude S. Platton, on the brief),

for Sylvia O. Hinds-Radix, Corporation 

Counsel of the City of New York, New 

York City Law Department, New York, 

NY.

Appeal from a judgment of the United States District Court for the Southern District of 

New York (P. Kevin Castel, Judge).

UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, 

ADJUDGED, AND DECREED that the judgment of the District Court be and hereby is

AFFIRMED.

Plaintiffs-Appellants—(1) Andrew Heidel and R. Andrew Heidel Inc. (d/b/a “The Way 

Station”); (2) Franklin Ortega and PO Italianissimo Inc. (“Italianissmo Ristorante”); and (3) John 

Merolla and NYMS Productions, Inc. (d/b/a “Murdered by the Mob”)—appeal from the October 

2021 judgment of the District Court dismissing Plaintiffs’ complaint in its entirety against the 

Governor of New York and the State (together, “State Defendants”) and the Mayor of the City of 

New York and the City (together, “City Defendants”). Plaintiffs brought their putative class action 

for money damages against State Defendants and City Defendants arguing that the Plaintiffs and the 

putative class were harmed by the State and City’s 2020 COVID-19 executive orders. We assume 

the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on 

appeal.

In reviewing the District Court’s dismissal of the Takings claim against the State Defendants 

for lack of subject matter jurisdiction, we review factual findings for clear error and legal conclusions 

de novo. Beaulieu v. Vermont, 807 F.3d 478, 483 n.1 (2d Cir. 2015). The District Court’s dismissal of 

claims against City Defendants pursuant to Fed. R. Civ. P. 12(b)(6) is reviewed de novo. ATSI 

Commc’ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007). 

For the reasons set forth below, we affirm the District Court’s judgment.
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I. Fifth Amendment Takings Claim Against State Defendants

The District Court correctly dismissed Plaintiffs’ claim against State Defendants—seeking 

money damages arising from a categorical regulatory taking under the Fifth Amendment’s Takings 

Clause—because Eleventh Amendment sovereign immunity barred the suit.1

Plaintiffs concede on appeal that “sovereign immunity may generally require that Takings 

claims against State Defendants must be brought in state court . . . .” Pls. Br. 13. Yet they rely on 

Kurtz v. Verizon N.Y., Inc., 758 F.3d 506, 512 (2d Cir. 2014), for the proposition that where—as they 

allege here—state procedures fail to provide “reasonable, certain and adequate provision for 

obtaining compensation,” they may pursue their claim in federal court. Plaintiffs never assert that 

they, as individual plaintiffs, would be unable to effectively pursue relief at the New York Court of 

Claims, but instead argue that the New York procedures to adjudicate relief for the putative class are 

inadequate because, inter alia, (1) the rules effectively “require pre-suit joinder of all class members,” 

(2) “there is no way for Plaintiffs’ counsel to ascertain and contact the Class members,” (3) “the best 

possible ethically-permitted mailed notice would lack the key opt-out nature of class actions under 

both Rule 23 and CPLR Article 9,” and (4) “the Court of Claims requires claimants with business 

claims such as Class members to identify and verify the ‘total sum claimed’ in damages with 

specificity.” Pls. Br. 14–17. Although we recognize that these procedural steps may render classwide relief more challenging in the Court of Claims than under a Fed. R. Civ. P. 23 class action, 

these procedural steps do not impede Plaintiffs’ ability to obtain individual relief through New York 

procedures. Because we have previously held that “New York State has a reasonable, certain and 

adequate provision for obtaining compensation,” Kurtz, 758 F.3d at 514 (quoting Country View Ests.

v. Town of Brookhaven, 452 F.Supp.2d 142, 157 (E.D.N.Y. 2006)), and Plaintiffs do not argue that state 

procedures bar “reasonable, certain and adequate” individual recovery, we reject Plaintiffs’ 

arguments as precluded by our precedent.

II. Federal and State Constitutional Claims Against City Defendants

In his thorough and well-reasoned Opinion and Order, Judge Castel dismissed all claims

against the City, which arose under the Takings Clauses of the Fifth Amendment and the New York 

Constitution, the Due Process Clause of the Fourteenth Amendment, and the Equal Protection 

Clauses of the Fifth Amendment and the New York Constitution. Although the District Court, sua 

sponte, raised the issue of standing with regard to Plaintiffs’ Equal Protection claims against the City, 

SPA-25, the District Court dismissed the Equal Protection claims and all others on the basis of 

Plaintiffs’ failure to state claims under Fed. R. Civ. P. 12(b)(6), id. 15–27.

1 Because Plaintiffs’ Takings claim is barred by Eleventh Amendment sovereign immunity, we 

need not address a matter the District Court assumed, without deciding: that “the ‘self-executing’ 

nature of the Takings clause could permit a plaintiff to bring a claim without relying on section 

1983.” SPA-10. 
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On appeal, City Defendants argue that “plaintiffs have failed to demonstrate that any city 

policy caused their alleged injuries.” City Defs. Br. 12. Because causation is necessary for Article III 

standing, and “constitutional standing implicates the subject matter jurisdiction of the Court, we may 

raise the issue nostra sponte.” In re Clinton Nurseries, Inc., 53 F.4th 15, 22 (2d Cir. 2022). 

Even assuming that the Complaint adequately pleads an injury, it fails to plead causation as 

to City Defendants. “The ‘causal connection’ element of Article III standing, i.e., the requirement 

that the plaintiff’s injury be ‘fairly . . . trace[able] to the challenged action of the defendant, and 

not . . . th[e] result [of] the independent action of some third party not before the court,’ does not 

create an onerous standard.” Carter v. HealthPort Techs., LLC, 822 F.3d 47, 55 (2d Cir. 2016) (quoting 

Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992)) (alterations in original). Yet even under this 

standard, we conclude that Plaintiffs fail to plead causation as to City Defendants. As noted by the 

District Court, “[w]hile the Complaint makes detailed allegations about public health orders issued

by . . . the City, it includes no factual allegations about how those orders affected plaintiffs 

individually, including any effect on revenue or business operations, or any attempt to stay in 

business under modified pandemic conditions.” SPA-4. Thus, Plaintiffs never connect the dots 

between any City policy and their alleged injuries necessary to show causation. Notably, Plaintiffs 

fail to address City Defendants’ causation argument in their reply beyond mere recitation that the 

City’s actions caused Plaintiffs’ business closures. See Pls. Reply 1. Because Plaintiffs’ Complaint 

fails to adequately plead causation as to City Defendants that is necessary for Article III standing, we 

affirm the District Court’s dismissal of claims against those defendants. 

III. Conclusion 

We have reviewed all of the arguments raised by Plaintiffs on appeal and find them to be 

without merit. For the foregoing reasons, we AFFIRM the judgment of the District Court.

FOR THE COURT:

Catherine O’Hagan Wolfe, Clerk