BUFFALO, N.Y. – Less than a week after a state Supreme Court justice granted 94 Western New York bars and restaurants a temporary restraining order allowing them to stay open past 10 p.m., a different judge has lifted that order.

The state argued it did not have time to sufficiently argue its case for a 10 p.m. curfew in front of Judge Timothy Walker, and Appellate Judge Patrick NeMoyer agreed. He granted a stay on the order Walker issued Friday, effectively restoring the curfew for the businesses involved in the lawsuit.

Both sides are scheduled to appear in front of NeMoyer on February 16, when he could restore the TRO, but attorney Corey Hogan is not optimistic he will change his mind.

"Given the political landscape, I don't know that we have a good shot on Tuesday," Hogan said. "I think a lot of it is politics, not the law, because the law is clear that there's no evidence of any kind to support a 10 p.m. closing. There's none."

The original case will be back in front of Walker and he could issue a preliminary injunction. HoganWillig Community Outreach and Media Relations Liaison James Minner point out if that scenario plays out, the state could appeal again.

"How do you run a business if you don't know if you're going to be shut down tomorrow, open the next day, shut down the day after that? How do you prepare? How do you deal with staffing? How do you deal with employees? How do you deal with your produce?" he asked.

The law firm said its clients were discouraged by the latest ruling. Minner said some of them had doubled their sales this past weekend from the weekend before.

Sunday was the Super Bowl, one of the biggest days of the year for bars and restaurants. However, Valentine's Day is another major moneymaker and Minner said NeMoyer's ruling is a disaster for them.

"Valentine's Day is a huge, huge day. These restaurants have reservations that are booked this weekend. Now they have to go and they have to cancel these reservations for people that we're going to be at 9 o'clock or 9:30 because the way the restaurants work they had to cut reservations off at 8."

Hogan said his firm will continue to challenge the state on COVID-19 restrictions. He said it won't be limited to the 10 p.m. issue either, and it some point he plans to take on the restriction limiting establishments to 50% capacity.

"We're not done pushing the state," he said. "The restaurant people have told us that there's been a lot of interest in people going there. They've had to turn people away."

The attorney said he doesn't know why the state applied a previous ruling allowing restaurants to open for indoor dining to the entire state while vigorously challenging the order this time. The governor's office said it would allow Judge NeMoyer's order to speak for itself.

Previously, a state Supreme Court justice granted more than 80 restaurants in the Rochester and Buffalo areas the right to resume indoor dining in their establishments.

Judge Henry Nowak granted a preliminary injunction in a lawsuit brought by those restaurants against the state and its COVID-19 restrictions.

In late January, attorneys at the HoganWillig Law Firm filed a lawsuit to get the 10 p.m. restaurant curfew lifted. They are the same attorneys that successfully argued to allow restaurants to open in the micro-cluster zones before those restrictions were lifted.