Preview
FILED: NASSAU COUNTY CLERK 01/12/2022 11:58 AM INDEX NO. 615766/2021
NYSCEF DOC. NO. 110 RECEIVED NYSCEF: 01/12/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU
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PEOPLE OF THE STATE OF NEW YORK, by
LETITIA JAMES, Attorney General of the State of New AFFIRMATION
York, IN OPPOSITION TO
Petitioners, ORDER TO SHOW CAUSE
- against -
Index No.: 615766/2021
5 CORNERS PET, INC., RISK ENTERPRISES, INC. d/b/a
SHAKE-A-PAW, and GERARD O’SULLIVAN and MARC Assigned Justice:
JACOBS, both individually and as owners of Shake-A-Paw, HON. HELEN VOUTSINAS
Respondents.
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RICHARD HAMBURGER, an attorney at law, duly licensed to practice in
the State of New York, affirms under penalties of perjury as follows:
1. I am a member of the firm of Hamburger, Maxson, Yaffe &
Martingale, LLP, attorneys for respondents 5 CORNERS PET, INC., RISK
ENTERPRISES, INC. d/b/a SHAKE-A-PAW, and GERARD O’SULLIVAN and MARC
JACOBS, both individually and as owners of Shake-A-Paw, (collectively, “Respondents”)
in the above-entitled proceeding. I am fully familiar with the facts and circumstances
alleged herein.
2. I submit this affirmation in support of Respondents’ motion to
modify a portion of the Temporary Restraining Order (“TRO”) contained in the Order
to Show Cause (“OSC”) issued by this Court on December 17, 2021 (NYSCEF Doc. 94).
3. Specifically, the TRO now requires that petitioners submit a weekly
affidavit certifying, among other things, that all puppies sold during the interval covered
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by the affidavit have been examined by an independent veterinarian, approved by the
Office of the Attorney General (“OAG”), who found them fit for sale.
4. That provision of the TRO should be modified to provide that the
certification instead require that the puppies not previously found fit for sale by
Petitioners be examined by as independent veterinarian.
A Proposed Order is simultaneously submitted herewith as Exhibit “C.”
5. The facts supporting the instant application are as follows:
a. December 17, 2021 (Friday). OS/TRO signed after TRO hearing with the
Court.
b. December 20, 2021 (Monday). Respondents proposed
as independent veterinarian and request approval by OAG.
c. December 23, 2021 (Thursday).
i. Conference held with the Court to address OAG’s delay and refusal
to accept Respondents’ veterinarian. The conference resulted in the
parties’ agreement as to proceeding with independent OAG
designated veterinarians (“OAG Vets”).
ii. Late in the evening, the examinations conducted by OAG Vets at
both Shake A Paw stores were concluded.
d. December 27, 2021 (Monday). Respondents forwarded two “Dogs on the
Floor” lists to OAG that totaled 211 puppies, identified by breed and
microchip number, that were, according to Shake A Paw employees on site
at the time of the OAG Vet examinations, orally cleared for sale by the OAG
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FILED: NASSAU COUNTY CLERK 01/12/2022 11:58 AM INDEX NO. 615766/2021
NYSCEF DOC. NO. 110 RECEIVED NYSCEF: 01/12/2022
Vets at the Hicksville store (112 puppies) and the Lynbrook store (99
puppies).
e. December 28, 2021 (Tuesday). OAG responded that there are
“discrepancies” on the lists submitted by Respondents and that OAG was
“double checking.”
f. December 29, 2021 (Wednesday). Respondents requested that OAG
identify the puppies in dispute (i.e., the “discrepancies”) so that
Respondents could proceed with the sale of the puppies whose fitness for
sale was not in dispute.
g. December 30, 2021 (Thursday).
i. OAG responded with a list of 27 puppies from the Hicksville store,
and 11 puppies from the Lynbrook store (a total of 38 puppies) that
allegedly were found by the OAG Vets to be “clinically symptomatic
and ill” and, therefore, “not cleared for sale.”
ii. Performing a simple mathematical function (deducting 38 from 211,
which yields 173), Respondents wrote to OAG:
“As you well know, the 211 puppies on the two lists we
sent you on 12/27 were all examined by the OAG Vets.
In your email, you have identified a total of 38 dogs
that allegedly are clinically symptomatic and ill. Please
answer yes or no: Are the 173 puppies not on your
email list cleared for sale?”
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FILED: NASSAU COUNTY CLERK 01/12/2022 11:58 AM INDEX NO. 615766/2021
NYSCEF DOC. NO. 110 RECEIVED NYSCEF: 01/12/2022
iii. OAG replied: “They are not cleared for sale.”
iv. Respondents objected, and OAG and Respondents went back and
forth on this issue several times, with OAG having the last word at
4:18 PM on December 30:
“[W]e are still reviewing the records and are awaiting
final lab results in order to determine which dogs can
be sold.”
h. January 3, 2021 (Monday). Respondents requested a conference with the
Court.
i. January 6, 2022 (Thursday).
i. A conference was held with the Court at which OAG orally identified
for the first time (14 days after the OAG Vet examinations
concluded), using the Hicksville “Dogs on the Floor” list for
reference, the puppies that were cleared for sale and not cleared for
sale at the Hicksville store. The Court also identified a veterinarian
known to the Court who had indicated a willingness to serve as
independent veterinarian pursuant to the TRO, and the parties
agreed to consider that individual.
ii. After the conference, using the same “Dogs On the Floor” Hicksville
reference chart, Respondents requested OAG to confirm in writing
the puppies orally cleared for sale at Hicksville. Assistant Attorney
General Valerie Singleton responded: “You already have the
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Hicksville list, except for items 21, 36, 64, 69 and 79. We will send
you the Lynbrook list.”
iii. After the conference, Assistant Attorney General Christina Bedell
provided Respondents with a written list of 78 puppies cleared at the
Lynbrook store by the OAG Vets.
j. January 7, 2022 (Friday). Respondents advised OAG at 10:37 AM that the
proposed independent veterinarian was acceptable to the Respondents.
k. January 10, 2022 (Monday): OAG advised Respondents at 7:56 PM that
OAG accepted the proposed independent veterinarian, but with conditions
that would constitute an expansion and modification of the TRO.
l. January 11, 2022 (Tuesday):
i. Respondents requested a conference with the Court.
ii. A conference was held with the Court and it was agreed that the
proposed independent veterinarian would examine all the puppies
on the Hicksville and Lynbrook “Dogs on the Floor” lists that were
not cleared by the OAG Vets.
iii. After the conference, the Court advised the party that the parties
could move forward in contacting the proposed independent
veterinarian and that he was free to have a discussion with the parties
after 3 PM on January 12, 2021.
iv. Respondents prepared a stipulation to give effect to the parties’
agreement to which was attached, as exhibits, copies of the two “Dogs
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on the Floor” lists which designated, with yellow highlighting and
asterisks, those puppies to be examined by the mutually accepted
independent veterinarian (i.e., those puppies on those same lists who
were not cleared by the OAG Vets). The designations were based on
the oral report of puppies cleared and not cleared at the Hicksville
store, as given by OAG at the conference on January 6, and the
written report provided by OAG that same date, after the conference,
as to the Lynbrook store. The stipulation with exhibits was emailed
by Respondents to OAG at 7:21 PM (see Exhibit “A” attached).
v. At 8:01 PM, Assistant Attorney Valerie Singleton responded via
email: “Your list is inaccurate. I’m tied up tomorrow and will not be
able to review the list until Thursday.” At 8:04 PM, Ms. Singleton
followed up with another email: “Also, I’m not available tomorrow
at 3 pm for a conference call. I’lltake a look at my calendar and
coordinate with Christina and get you our dates of availability
tomorrow.” (see Exhibit “B” attached).
6. I am advised that deposits have been taken on 19 puppies that are
included on the two “Dog on the Floor” lists for examination and clearance by the
independent veterinarian approved by the parties (again, puppies who were not cleared
by the OAG Vets nearly three weeks ago on December 23).
7. Clearly, the OAG is continuing to engage in a campaign of delay and
non-cooperation that is intended to destroy Respondents’ business before this Court has
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FILED: NASSAU COUNTY CLERK 01/12/2022 11:58 AM INDEX NO. 615766/2021
NYSCEF DOC. NO. 110 RECEIVED NYSCEF: 01/12/2022
the opportunity to consider Respondents’ opposition to the petition and determine
whether it has any merit whatsoever.
8. Under the circumstances, in order to give effect to the parties
January 10, 2022 agreement, as witnessed and directed by the Court, we respectfully
request that the TRO be modified to specifically identify and incorporate the
independent veterinarian proposed by the Court and accepted by the parties.
9. This application should be made returnable and heard immediately.
10. No prior application for this or similar relief has been made to this
or any other Court.
Dated: Melville, New York
January 12, 2022
/s/ Richard Hamburger
RICHARD HAMBURGER
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FILED: NASSAU COUNTY CLERK 01/12/2022 11:58 AM INDEX NO. 615766/2021
NYSCEF DOC. NO. 110 RECEIVED NYSCEF: 01/12/2022
Certificate of Compliance Pursuant to Rule 17 of Section 202.8-b of the
Uniform Civil Rules for the Supreme Court and the County Court
It is hereby certified that the information below sets forth the specifications
by which this computer-generated affirmation complies with Rule 17 of the Uniform Civil
Rules for the Supreme Court and the County Court.
The word processor states that this affirmation contains 1,317 words.
The typeface (font) is New Baskerville.
The point size is 12.
The line spacing is double.
Dated: Melville, New York
January 12, 2022
HAMBURGER, MAXSON, YAFFE
& MARTINGALE, LLP
Attorneys for Respondents
By: /s/ Richard Hamburger
Richard Hamburger, Esq.
225 Broadhollow Road, Suite 301E
Melville, New York 11747
631.694.2400
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Preview
FILED: NASSAU COUNTY CLERK 01/12/2022 11:58 AM INDEX NO. 615766/2021 NYSCEF DOC. NO. 110 RECEIVED NYSCEF: 01/12/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU ------------------------------------------------------------------------------X PEOPLE OF THE STATE OF NEW YORK, by LETITIA JAMES, Attorney General of the State of New AFFIRMATION York, IN OPPOSITION TO Petitioners, ORDER TO SHOW CAUSE - against - Index No.: 615766/2021 5 CORNERS PET, INC., RISK ENTERPRISES, INC. d/b/a SHAKE-A-PAW, and GERARD O’SULLIVAN and MARC Assigned Justice: JACOBS, both individually and as owners of Shake-A-Paw, HON. HELEN VOUTSINAS Respondents. ------------------------------------------------------------------------------X RICHARD HAMBURGER, an attorney at law, duly licensed to practice in the State of New York, affirms under penalties of perjury as follows: 1. I am a member of the firm of Hamburger, Maxson, Yaffe & Martingale, LLP, attorneys for respondents 5 CORNERS PET, INC., RISK ENTERPRISES, INC. d/b/a SHAKE-A-PAW, and GERARD O’SULLIVAN and MARC JACOBS, both individually and as owners of Shake-A-Paw, (collectively, “Respondents”) in the above-entitled proceeding. I am fully familiar with the facts and circumstances alleged herein. 2. I submit this affirmation in support of Respondents’ motion to modify a portion of the Temporary Restraining Order (“TRO”) contained in the Order to Show Cause (“OSC”) issued by this Court on December 17, 2021 (NYSCEF Doc. 94). 3. Specifically, the TRO now requires that petitioners submit a weekly affidavit certifying, among other things, that all puppies sold during the interval covered 1 1 of 8 FILED: NASSAU COUNTY CLERK 01/12/2022 11:58 AM INDEX NO. 615766/2021 NYSCEF DOC. NO. 110 RECEIVED NYSCEF: 01/12/2022 by the affidavit have been examined by an independent veterinarian, approved by the Office of the Attorney General (“OAG”), who found them fit for sale. 4. That provision of the TRO should be modified to provide that the certification instead require that the puppies not previously found fit for sale by Petitioners be examined by as independent veterinarian. A Proposed Order is simultaneously submitted herewith as Exhibit “C.” 5. The facts supporting the instant application are as follows: a. December 17, 2021 (Friday). OS/TRO signed after TRO hearing with the Court. b. December 20, 2021 (Monday). Respondents proposed as independent veterinarian and request approval by OAG. c. December 23, 2021 (Thursday). i. Conference held with the Court to address OAG’s delay and refusal to accept Respondents’ veterinarian. The conference resulted in the parties’ agreement as to proceeding with independent OAG designated veterinarians (“OAG Vets”). ii. Late in the evening, the examinations conducted by OAG Vets at both Shake A Paw stores were concluded. d. December 27, 2021 (Monday). Respondents forwarded two “Dogs on the Floor” lists to OAG that totaled 211 puppies, identified by breed and microchip number, that were, according to Shake A Paw employees on site at the time of the OAG Vet examinations, orally cleared for sale by the OAG 2 2 of 8 FILED: NASSAU COUNTY CLERK 01/12/2022 11:58 AM INDEX NO. 615766/2021 NYSCEF DOC. NO. 110 RECEIVED NYSCEF: 01/12/2022 Vets at the Hicksville store (112 puppies) and the Lynbrook store (99 puppies). e. December 28, 2021 (Tuesday). OAG responded that there are “discrepancies” on the lists submitted by Respondents and that OAG was “double checking.” f. December 29, 2021 (Wednesday). Respondents requested that OAG identify the puppies in dispute (i.e., the “discrepancies”) so that Respondents could proceed with the sale of the puppies whose fitness for sale was not in dispute. g. December 30, 2021 (Thursday). i. OAG responded with a list of 27 puppies from the Hicksville store, and 11 puppies from the Lynbrook store (a total of 38 puppies) that allegedly were found by the OAG Vets to be “clinically symptomatic and ill” and, therefore, “not cleared for sale.” ii. Performing a simple mathematical function (deducting 38 from 211, which yields 173), Respondents wrote to OAG: “As you well know, the 211 puppies on the two lists we sent you on 12/27 were all examined by the OAG Vets. In your email, you have identified a total of 38 dogs that allegedly are clinically symptomatic and ill. Please answer yes or no: Are the 173 puppies not on your email list cleared for sale?” 3 3 of 8 FILED: NASSAU COUNTY CLERK 01/12/2022 11:58 AM INDEX NO. 615766/2021 NYSCEF DOC. NO. 110 RECEIVED NYSCEF: 01/12/2022 iii. OAG replied: “They are not cleared for sale.” iv. Respondents objected, and OAG and Respondents went back and forth on this issue several times, with OAG having the last word at 4:18 PM on December 30: “[W]e are still reviewing the records and are awaiting final lab results in order to determine which dogs can be sold.” h. January 3, 2021 (Monday). Respondents requested a conference with the Court. i. January 6, 2022 (Thursday). i. A conference was held with the Court at which OAG orally identified for the first time (14 days after the OAG Vet examinations concluded), using the Hicksville “Dogs on the Floor” list for reference, the puppies that were cleared for sale and not cleared for sale at the Hicksville store. The Court also identified a veterinarian known to the Court who had indicated a willingness to serve as independent veterinarian pursuant to the TRO, and the parties agreed to consider that individual. ii. After the conference, using the same “Dogs On the Floor” Hicksville reference chart, Respondents requested OAG to confirm in writing the puppies orally cleared for sale at Hicksville. Assistant Attorney General Valerie Singleton responded: “You already have the 4 4 of 8 FILED: NASSAU COUNTY CLERK 01/12/2022 11:58 AM INDEX NO. 615766/2021 NYSCEF DOC. NO. 110 RECEIVED NYSCEF: 01/12/2022 Hicksville list, except for items 21, 36, 64, 69 and 79. We will send you the Lynbrook list.” iii. After the conference, Assistant Attorney General Christina Bedell provided Respondents with a written list of 78 puppies cleared at the Lynbrook store by the OAG Vets. j. January 7, 2022 (Friday). Respondents advised OAG at 10:37 AM that the proposed independent veterinarian was acceptable to the Respondents. k. January 10, 2022 (Monday): OAG advised Respondents at 7:56 PM that OAG accepted the proposed independent veterinarian, but with conditions that would constitute an expansion and modification of the TRO. l. January 11, 2022 (Tuesday): i. Respondents requested a conference with the Court. ii. A conference was held with the Court and it was agreed that the proposed independent veterinarian would examine all the puppies on the Hicksville and Lynbrook “Dogs on the Floor” lists that were not cleared by the OAG Vets. iii. After the conference, the Court advised the party that the parties could move forward in contacting the proposed independent veterinarian and that he was free to have a discussion with the parties after 3 PM on January 12, 2021. iv. Respondents prepared a stipulation to give effect to the parties’ agreement to which was attached, as exhibits, copies of the two “Dogs 5 5 of 8 FILED: NASSAU COUNTY CLERK 01/12/2022 11:58 AM INDEX NO. 615766/2021 NYSCEF DOC. NO. 110 RECEIVED NYSCEF: 01/12/2022 on the Floor” lists which designated, with yellow highlighting and asterisks, those puppies to be examined by the mutually accepted independent veterinarian (i.e., those puppies on those same lists who were not cleared by the OAG Vets). The designations were based on the oral report of puppies cleared and not cleared at the Hicksville store, as given by OAG at the conference on January 6, and the written report provided by OAG that same date, after the conference, as to the Lynbrook store. The stipulation with exhibits was emailed by Respondents to OAG at 7:21 PM (see Exhibit “A” attached). v. At 8:01 PM, Assistant Attorney Valerie Singleton responded via email: “Your list is inaccurate. I’m tied up tomorrow and will not be able to review the list until Thursday.” At 8:04 PM, Ms. Singleton followed up with another email: “Also, I’m not available tomorrow at 3 pm for a conference call. I’lltake a look at my calendar and coordinate with Christina and get you our dates of availability tomorrow.” (see Exhibit “B” attached). 6. I am advised that deposits have been taken on 19 puppies that are included on the two “Dog on the Floor” lists for examination and clearance by the independent veterinarian approved by the parties (again, puppies who were not cleared by the OAG Vets nearly three weeks ago on December 23). 7. Clearly, the OAG is continuing to engage in a campaign of delay and non-cooperation that is intended to destroy Respondents’ business before this Court has 6 6 of 8 FILED: NASSAU COUNTY CLERK 01/12/2022 11:58 AM INDEX NO. 615766/2021 NYSCEF DOC. NO. 110 RECEIVED NYSCEF: 01/12/2022 the opportunity to consider Respondents’ opposition to the petition and determine whether it has any merit whatsoever. 8. Under the circumstances, in order to give effect to the parties January 10, 2022 agreement, as witnessed and directed by the Court, we respectfully request that the TRO be modified to specifically identify and incorporate the independent veterinarian proposed by the Court and accepted by the parties. 9. This application should be made returnable and heard immediately. 10. No prior application for this or similar relief has been made to this or any other Court. Dated: Melville, New York January 12, 2022 /s/ Richard Hamburger RICHARD HAMBURGER 7 7 of 8 FILED: NASSAU COUNTY CLERK 01/12/2022 11:58 AM INDEX NO. 615766/2021 NYSCEF DOC. NO. 110 RECEIVED NYSCEF: 01/12/2022 Certificate of Compliance Pursuant to Rule 17 of Section 202.8-b of the Uniform Civil Rules for the Supreme Court and the County Court It is hereby certified that the information below sets forth the specifications by which this computer-generated affirmation complies with Rule 17 of the Uniform Civil Rules for the Supreme Court and the County Court. The word processor states that this affirmation contains 1,317 words. The typeface (font) is New Baskerville. The point size is 12. The line spacing is double. Dated: Melville, New York January 12, 2022 HAMBURGER, MAXSON, YAFFE & MARTINGALE, LLP Attorneys for Respondents By: /s/ Richard Hamburger Richard Hamburger, Esq. 225 Broadhollow Road, Suite 301E Melville, New York 11747 631.694.2400 8 8 of 8