BUFFALO, N.Y. — As of Monday, the curfew for bars and restaurants is midnight instead of 11 p.m.

State Senator Pat Gallivan, R-Elma, said in some ways, it’s progress for the businesses.

"It's better for them, no doubt. However, in my view, it still comes without science behind it. Ten o'clock, 11 o'clock, 12 o'clock, we don't know. We know that the virus doesn't know the time," he said.

Gallivan was the lone lawmaker among a group of Western New York bars and restaurants that had challenged the curfew. Over the weekend, a judge who had twice made favorable decisions for the petitioners changed course, and denied a permanent injunction.

"We do see the irony, especially as it relates to the lawsuit, the Legislature as a body in changing the law essentially bailed the governor out and provided a defense for the restaurant closing time lawsuit," Gallivan said.

The judge ruled the lawsuit was moot because last month lawmakers essentially repealed and replaced the legislation that granted the governor extraordinary powers amid the COVID-19 pandemic.

"I saw that as putting our lawsuit in jeopardy essentially because the things that we were challenging that were included in the old law are no longer included in this law," Gallivan said.

He said he didn't support the supposed curbing of the governor's powers last month because while it prohibited new directives, he didn't see it as an effective restoration of checks and balances.

"The recent legislative changes that are being billed as a repeal are not a repeal, as we see. We see the governor still has a certain amount of powers, including the ability to modify directives," he said.

The law firm that brought the initial lawsuit is planning to bring a new one this week, changing language to challenge the law as it now stands. Gallivan said he hasn't had a conversation yet about whether he will continue to take part.

"I thought the closing time had no rational basis, but I was really interested in the point of law that I didn't think the governor had the authority to issue directives that last beyond 30 days," he said.

Gallivan said under the new legislation there is a mechanism for the governor to extend directives beyond 30 days, so he would have to review what portions of the law attorneys plan to challenge.