The attorney James Mermigis specializes in business, commercial, matrimonial, estate, personal-injury, and constitutional law. He supports Donald Trump and subscribes to the “medical freedom movement,” which opposes vaccine mandates, including any that may be imposed for the coronavirus. Last year, Mermigis, who is based in Syosset, Long Island, made a few headlines while representing an Amish family in western New York State who objected to the state’s ending of religious exemptions for childhood vaccinations. He lost that case. This year, business has picked up anyway.
Since the summer, Mermigis has filed more than a half-dozen lawsuits against New York State, Governor Andrew Cuomo, and New York City Mayor Bill de Blasio on behalf of thousands of small businesses forced to shut down during the coronavirus pandemic. His clients include restaurants, gyms, Off Broadway theatres, comedy clubs, and pool halls. In addition to asking judges to loosen or even lift shutdown orders, the lawsuits intend to seek, collectively, up to five billion dollars in damages. Judges have been skeptical of Mermigis’s arguments, but Mermigis keeps filing new cases.
“I’ve slept three and a half hours a night since June,” Mermigis told me, when I called him recently. “It’s like a John Grisham novel, to be honest with you.” I’d asked how he’d ended up being the lawyer for all these small businesses. “It’s crazy how I’m the only one really that’s doing this,” he said. “In Michigan, you have actual politicians who have sued the governor. A similar thing in Pennsylvania. I have not been approached by one politician in New York to sue the governor.”
Mermigis said his anti-shutdown work began with the gyms. In mid-May, the owners of Atilis, a gym in Bellmawr, New Jersey, hired Mermigis as they prepared to stay open in defiance of their state’s shutdown orders. (According to the owners, Atilis has since racked up more than a million dollars in fines.) Not long after, Charlie Cassara, a Long Island man who owns two gyms not far from Mermigis’s office, called him, too.
Unlike Atilis’s owners, Cassara didn’t want to flout public-health guidelines. But he was increasingly desperate. His businesses had been closed for months, he told Mermigis, and, as the infection numbers went down in the state and the government announced successive phases of reopening, gyms found themselves left out of the plans. In mid-June, Cuomo told reporters at a press conference that, although the fourth reopening phase would allow tanning salons, tattoo shops, piercing parlors, and spas to open with restrictions, gyms would remain closed.
“At that point in time, we were already back rent, bills coming up, mortgages, the whole nine,” Cassara told me. “I listened to Governor Cuomo’s presser. I woke up the next morning, I called my personal attorney, asked for a recommendation. She recommended James Mermigis.”
Mermigis and Cassara talked over the possibility of a lawsuit, and Mermigis suggested that Cassara find some other gym owners to help cover the cost. Cassara found ten other owners who wanted in. That number grew to a hundred, then two thousand. They formed an organization called the New York Fitness Coalition. Cassara became the president. Meanwhile, Mermigis began hunting for a venue to file the lawsuit in. “I went to the Politico Web site,” he said. “I looked at the results of the 2018 election, when Cuomo was running for reëlection. I basically looked at jurisdictions that he got demolished in.” He settled on Jefferson County, where Cuomo got just thirty per cent of the vote. “Half the battle is picking the right judge,” Mermigis said.
The gym lawsuit was filed on July 29th. It opens with quotes from Supreme Court Justice Samuel Alito and Senator Rand Paul. It takes aim at this spring and summer’s Black Lives Matter protests, asking why “there is no public health for marches, but someone who wants to open their gyms with CDC safety guidelines is endangering the public.” It accuses Cuomo of “selectively” enforcing his shutdown orders; the openings of tattoo and piercing parlors are mentioned often. It acknowledges that the virus “caused unease and uncertainty on a scale that has not been witnessed in many years,” but does not mention the tens of thousands of New Yorkers killed by the virus. The suit also argues that the plaintiffs risk losing their businesses if things continue in the same way.
As late as August 6th, a week after the lawsuit was filed, the governor was still saying that “gyms are highly problematic.” On August 17th, however, Cuomo announced that he intended to allow gyms to open up with restrictions. Mermigis claims credit for the reversal, although some members of the state legislature were calling on Cuomo to open the gyms at the same time.
Either way, these developments brought Mermigis new attention and clients. In early September, “Fox & Friends” invited him on for an interview. A group of restaurant owners in New York City (including Lady Gaga’s father, Joe Germanotta, who owns Joanne Trattoria, on the Upper West Side) asked him for help in reopening indoor dining; when it did reopen, they began to fight the city-specific restriction that capped indoor dining at twenty-five-per-cent capacity while the rest of the state was at fifty per cent. The lead plaintiff in the lawsuit that Mermigis filed on the restaurants’ behalf is Il Bacco, an Italian restaurant in Queens, located just five hundred feet from the border with Nassau County. “There is absolutely NO SCIENCE that will prove that ‘indoor dining’ is safer one city block east from Plaintiff’s restaurant,” the lawsuit reads. In November, a Staten Island judge ruled against the restaurants, saying that the state government was “within its rights to pass quarantine laws for the protection of the public’s life and health within its limits to prevent suffering from a contagious disease.” (More recently, Mermigis also represented a group of New York City parents who sued de Blasio over the latest school shutdowns. In that case, one of his plaintiffs was Joe Borelli, a Staten Island city councilman, who had eleven people over to his house on Thanksgiving.)
Perceived inconsistencies in how coronavirus restrictions have been applied to small businesses, along with a lack of government help, brought other clients to Mermigis. “When I read that the bowling alleys opened, I sort of lost it,” Catherine Russell, an actor and general manager at the Theatre Center, in Manhattan, said. Russell stars in “Perfect Crime,” the murder-mystery show that has played Off Broadway since 1987. (She has missed just four performances since the show opened—she was once dubbed “the Cal Ripken of Broadway” by People magazine.) A guy who works in the box office at the theatre suggested that she call the lawyer who he’d seen was representing restaurants. Mermigis filed a suit on behalf of Russell’s company, as well as five other theatre companies and two comedy clubs. Russell had paid to install an air-filtration system in her space, and bought plastic masks for her actors to wear. She asked me why “Saturday Night Live” was allowed to go on in front of an audience—a loophole in the law allows the show to pay audience members as “extras”—while theatres like hers sat empty and her cast and crew went without paychecks.
“It seems like small venues slipped through the cracks,” Russell said, “and nobody said anything.” What made opening her space with restrictions any riskier than opening restaurants with restrictions? “I’m asking to be treated equally,” Russell told me.
The state government has brushed off these lawsuits. “We get sued virtually every day for virtually every action taken during this pandemic, and frankly I’ve lost track of all the frivolous suits filed against us,” Richard Azzopardi, a senior adviser to Cuomo, said in October. “We are moving heaven and earth to contain this virus and we know some people are unhappy, but New York continues to have one of the lowest infection rates in the nation, and better to be unhappy than sick or worse.” (The governor’s office did not respond to a request for comment for this article.)
“Unhappy” doesn’t really capture what these business owners are feeling. Since March, the state has asked them to put their livelihoods on the line for the collective good, with few measures in place to help them economically. Since passing the CARES Act in the early days of the crisis, the U.S. Congress has spent months debating additional rescue legislation. The state and the city aren’t in a position to help, either, and they’re asking Congress to plug their own emergency-level budget deficits. I asked Cassara, the Long Island gym owner, if he expected to win in court. “I think part of it is not really directed at Governor Cuomo,” Cassara said. “I think it’s putting pressure on him now to do what he should have been doing over the last eight months. And that’s pressuring Congress and everybody else to do the right thing by New Yorkers, by Americans.”
