Preview
FILED: NASSAU COUNTY CLERK 02/28/2022 02:17 PM INDEX NO. 615766/2021
NYSCEF DOC. NO. 178 RECEIVED NYSCEF: 02/28/2022
HAMBURGER, MAXSON, YAFFE & MARTINGALE, LLP
ATTORNEYS AT LAW
225 BROADHOLLOW ROAD, SUITE 301E
MELVILLE, NEW YORK 11747
RICHARD HAMBURGER
rhamburger@hmylaw.com
631.694.2400
FAX: 631.694.1376
HMYLAW.COM
February 6, 2022
VIA EMAIL
judgevoutsinasremote@nycourts.gov
Hon. Helen Voutsinas
Supreme Court, Nassau County
100 Supreme Court Drive
Mineola, NY 11501
Re: People of the State of New York v. 5 Corners Pet, Inc., et al.
Index No.: 615766/2021
Our File No.: 2031.14-EF
Dear Justice Voutsinas,
I write in opposition to Assistant Attorney General Christina Bedell’s letter
requesting a three-month extension and briefing schedule to oppose Respondents’
answer and motion to dismiss the petition in this proceeding. Ms. Bedell’s letter was
emailed to Your Honor and to counsel at 5:04 PM on Friday, February 4. Earlier that
same day, I had advised Assistant Attorney Bedell via email at 11:07 AM:
“Because of the TRO, Shake A Paw cannot agree to any extensions.”
(Emphasis added)
Although it is not the practice of this office to deny a first-time request for
an extension to file reply papers, an extension is not appropriate in this case where there
is a TRO in effect pending the hearing and determination of the proceeding that will
destroy what is left of Shake A Paw’s business well before the requested May 16 adjourn
date is ever reached.
Respondents’ opposing papers were timely filed on February 2, in
accordance with the Order to Show Cause issued by Your Honor on December 17, 2021.
At that time (December 17), you asked Ms. Singleton how much time she wanted for reply
FILED: NASSAU COUNTY CLERK 02/28/2022 02:17 PM INDEX NO. 615766/2021
NYSCEF DOC. NO. 178 RECEIVED NYSCEF: 02/28/2022
HAMBURGER, MAXSON, YAFFE & MARTINGALE, LLP
ATTORNEYS AT LAW
Hon. Helen Voutsinas
February 6, 2022
Page 2
and she requested one week. Accordingly, the petition was set down for February 9, 2022.
Respondents’ opposition papers powerfully demonstrate that, as a matter
of fact and as a matter of law, the petition is hollow and this proceeding should be
dismissed. In the meantime, the TRO, among other things, prohibits Respondents, from
purchasing and selling any new puppies.
We oppose Ms. Bedell’s request to adjourn the February 9 hearing date and
drag out the briefing schedule for months, all without even bothering to address the TRO.
The Attorney General’s proposed schedule with no relief from the TRO will necessarily
cause the stores to close and lay-off their employees. Moreover, having spent six years
developing their “case” against respondents, they are surely already well aware of the laws
that govern (and decimate) their claims, and there cannot possibly be any allowable basis
for permitting them to try to manufacture more “facts.” As demonstrated in our papers,
this case should never have been brought in the first place, as it is devoid of any good
faith basis, devoid of competent factual support, devoid of expert support, and devoid of
any legal merit whatsoever. The return date should not be adjourned. To do otherwise
would deprive respondents of their day in court before being forced out of a business that
they have been operating for 28 years in full compliance with all governing laws.
Respondents have filed weekly puppy inventories and certification affidavits
that confirm to the Court’s requirements. The last filed inventory (as of close of business
on February 2) and accompanying certification (sworn to February 3) showed that out of
220 Hicksville store puppies being tracked and 212 Lynbrook store puppies being
tracked (both as of 5:00 PM on December 17 when the TRO issued), there were only 103
puppies left in the Hicksville store and only 90 puppies left in the Lynbrook store. These
puppy inventories cannot be replenished unless and until the TRO is dissolved because,
again, Shake A Paw is restrained from purchasing and selling any new puppies.
The results of the health examinations performed by the independent
veterinarian appointed by the Court unequivocally annihilate the Attorney General’s
allegations. As the Attorney General knows (having received copies of all the health
certificates), the independent veterinarian has cleared 208 of 214 puppies examined See
Marc Jacobs Certification Affidavit sworn to January 28, 2022, ¶¶ 4(a)(b) & (c).
There are also basic errors in Ms. Bedell’s letter that rebut any entitlement
to the relief she has requested. Respondents’ motion is not a “cross-motion,” although
FILED: NASSAU COUNTY CLERK 02/28/2022 02:17 PM INDEX NO. 615766/2021
NYSCEF DOC. NO. 178 RECEIVED NYSCEF: 02/28/2022
HAMBURGER, MAXSON, YAFFE & MARTINGALE, LLP
ATTORNEYS AT LAW
Hon. Helen Voutsinas
February 6, 2022
Page 3
the restrictions of the NYSCEF system required it be designated as such when filed. It is
a motion to dismiss pursuant to CPLR § 404 that has been made within a special
proceeding. Simultaneous with the motion, Respondents also served an answer. The
Order to Show Cause, drafted by the Attorney General and in accordance with CPLR
403(b), provided:
Pursuant to CPLR § 403(b), answer papers, if any, are
required to be served on the Petitioner’s Nassau Regional
Office at least two days before the return date of this special
proceeding. If, however, this Order to Show Cause is served
at least twelve days before the return date, answering papers,
if any, are required to be served at least seven days before the
return date.
In accordance with CPLR § 403(b), Respondents’ served their answer and
motion to dismiss on February 2, as required. Pursuant to CPLR § 406, Respondents’
motion was properly made returnable on February 9, the date on which the petition was
noticed to be heard. Accordingly, the Attorney General is not entitled to any additional
time to reply to the answer or to oppose the motion. Such an extension is purely within
the sound discretion of the Court and, for the reasons set forth in this letter, should not
be granted.
Thank you for your consideration and attention.
Respectfully,
Richard Hamburger
c: Via e-mail:
Valerie Singleton, Assistant Attorney General-In-Charge
Christina Bedell, Assistant Attorney General
Via e-mail:
Shake A Paw
Preview
FILED: NASSAU COUNTY CLERK 02/28/2022 02:17 PM INDEX NO. 615766/2021 NYSCEF DOC. NO. 178 RECEIVED NYSCEF: 02/28/2022 HAMBURGER, MAXSON, YAFFE & MARTINGALE, LLP ATTORNEYS AT LAW 225 BROADHOLLOW ROAD, SUITE 301E MELVILLE, NEW YORK 11747 RICHARD HAMBURGER rhamburger@hmylaw.com 631.694.2400 FAX: 631.694.1376 HMYLAW.COM February 6, 2022 VIA EMAIL judgevoutsinasremote@nycourts.gov Hon. Helen Voutsinas Supreme Court, Nassau County 100 Supreme Court Drive Mineola, NY 11501 Re: People of the State of New York v. 5 Corners Pet, Inc., et al. Index No.: 615766/2021 Our File No.: 2031.14-EF Dear Justice Voutsinas, I write in opposition to Assistant Attorney General Christina Bedell’s letter requesting a three-month extension and briefing schedule to oppose Respondents’ answer and motion to dismiss the petition in this proceeding. Ms. Bedell’s letter was emailed to Your Honor and to counsel at 5:04 PM on Friday, February 4. Earlier that same day, I had advised Assistant Attorney Bedell via email at 11:07 AM: “Because of the TRO, Shake A Paw cannot agree to any extensions.” (Emphasis added) Although it is not the practice of this office to deny a first-time request for an extension to file reply papers, an extension is not appropriate in this case where there is a TRO in effect pending the hearing and determination of the proceeding that will destroy what is left of Shake A Paw’s business well before the requested May 16 adjourn date is ever reached. Respondents’ opposing papers were timely filed on February 2, in accordance with the Order to Show Cause issued by Your Honor on December 17, 2021. At that time (December 17), you asked Ms. Singleton how much time she wanted for reply FILED: NASSAU COUNTY CLERK 02/28/2022 02:17 PM INDEX NO. 615766/2021 NYSCEF DOC. NO. 178 RECEIVED NYSCEF: 02/28/2022 HAMBURGER, MAXSON, YAFFE & MARTINGALE, LLP ATTORNEYS AT LAW Hon. Helen Voutsinas February 6, 2022 Page 2 and she requested one week. Accordingly, the petition was set down for February 9, 2022. Respondents’ opposition papers powerfully demonstrate that, as a matter of fact and as a matter of law, the petition is hollow and this proceeding should be dismissed. In the meantime, the TRO, among other things, prohibits Respondents, from purchasing and selling any new puppies. We oppose Ms. Bedell’s request to adjourn the February 9 hearing date and drag out the briefing schedule for months, all without even bothering to address the TRO. The Attorney General’s proposed schedule with no relief from the TRO will necessarily cause the stores to close and lay-off their employees. Moreover, having spent six years developing their “case” against respondents, they are surely already well aware of the laws that govern (and decimate) their claims, and there cannot possibly be any allowable basis for permitting them to try to manufacture more “facts.” As demonstrated in our papers, this case should never have been brought in the first place, as it is devoid of any good faith basis, devoid of competent factual support, devoid of expert support, and devoid of any legal merit whatsoever. The return date should not be adjourned. To do otherwise would deprive respondents of their day in court before being forced out of a business that they have been operating for 28 years in full compliance with all governing laws. Respondents have filed weekly puppy inventories and certification affidavits that confirm to the Court’s requirements. The last filed inventory (as of close of business on February 2) and accompanying certification (sworn to February 3) showed that out of 220 Hicksville store puppies being tracked and 212 Lynbrook store puppies being tracked (both as of 5:00 PM on December 17 when the TRO issued), there were only 103 puppies left in the Hicksville store and only 90 puppies left in the Lynbrook store. These puppy inventories cannot be replenished unless and until the TRO is dissolved because, again, Shake A Paw is restrained from purchasing and selling any new puppies. The results of the health examinations performed by the independent veterinarian appointed by the Court unequivocally annihilate the Attorney General’s allegations. As the Attorney General knows (having received copies of all the health certificates), the independent veterinarian has cleared 208 of 214 puppies examined See Marc Jacobs Certification Affidavit sworn to January 28, 2022, ¶¶ 4(a)(b) & (c). There are also basic errors in Ms. Bedell’s letter that rebut any entitlement to the relief she has requested. Respondents’ motion is not a “cross-motion,” although FILED: NASSAU COUNTY CLERK 02/28/2022 02:17 PM INDEX NO. 615766/2021 NYSCEF DOC. NO. 178 RECEIVED NYSCEF: 02/28/2022 HAMBURGER, MAXSON, YAFFE & MARTINGALE, LLP ATTORNEYS AT LAW Hon. Helen Voutsinas February 6, 2022 Page 3 the restrictions of the NYSCEF system required it be designated as such when filed. It is a motion to dismiss pursuant to CPLR § 404 that has been made within a special proceeding. Simultaneous with the motion, Respondents also served an answer. The Order to Show Cause, drafted by the Attorney General and in accordance with CPLR 403(b), provided: Pursuant to CPLR § 403(b), answer papers, if any, are required to be served on the Petitioner’s Nassau Regional Office at least two days before the return date of this special proceeding. If, however, this Order to Show Cause is served at least twelve days before the return date, answering papers, if any, are required to be served at least seven days before the return date. In accordance with CPLR § 403(b), Respondents’ served their answer and motion to dismiss on February 2, as required. Pursuant to CPLR § 406, Respondents’ motion was properly made returnable on February 9, the date on which the petition was noticed to be heard. Accordingly, the Attorney General is not entitled to any additional time to reply to the answer or to oppose the motion. Such an extension is purely within the sound discretion of the Court and, for the reasons set forth in this letter, should not be granted. Thank you for your consideration and attention. Respectfully, Richard Hamburger c: Via e-mail: Valerie Singleton, Assistant Attorney General-In-Charge Christina Bedell, Assistant Attorney General Via e-mail: Shake A Paw