Preview
FILED: NASSAU COUNTY CLERK 03/08/2022 07:04 PM INDEX NO. 615766/2021
NYSCEF DOC. NO. 206 RECEIVED NYSCEF: 03/08/2022
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 REPLY AFFIRMATION IN
York, FURTHER SUPPORT OF
Petitioner, (a) MOTION TO VACATE
- against - TRO PURSUANT TO
CPLR § 6314; AND (b)
5 CORNERS PET, INC., RISK ENTERPRISES, INC. d/b/a MOTION TO DISMISS
SHAKE-A-PAW, and GERARD O’SULLIVAN and MARC PETITION
JACOBS, both individually and as owners of Shake-A-Paw,
Index No.: 615766/2021
Respondents.
Assigned Justice:
------------------------------------------------------------------------------X HON. HELEN VOUTSINAS
RICHARD HAMBURGER, an attorney at law, duly licensed to practice in
the State of New York, affirms under penalties of perjury as follows:
INTRODUCTION
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. This reply affirmation responds to the most recent
submissions of the Attorney General’s Office (“OAG”), handed to us, late, in Chambers
on March 4, or filed even later that day on NYSCEF. Also filed in reply at this time are
the reply affidavit of Marc Jacobs (“Jacobs Reply Aff.”), the reply affidavit of Steven Fox,
D.V.M. (“Fox Reply Aff.”), and Respondents’ reply memorandum of law (“Resp. Reply
MOL”).
1
1 of 12
FILED: NASSAU COUNTY CLERK 03/08/2022 07:04 PM INDEX NO. 615766/2021
NYSCEF DOC. NO. 206 RECEIVED NYSCEF: 03/08/2022
2. As the Court will see, OAG has doubled down on its allegations and
is struggling to fill the gaps in its case with evidence that does not exist, is inadmissible,
constitutes prohibited reply, or proves nothing, as well as legal arguments that are
unsubstantiated and inflammatory.
3. This reply affidavit will address (a) OAG’s egregious submission of
affidavits by OAG Vets Ashley Newman and Kayla Akkaya; and (b) the false allegation
that Respondents were uncooperative or in some way impeded or interfered with OAG’s
investigation.
4. The reply affidavit of Dr. Steven Fox will address (a) the expert
affidavit of Dr. Julie Fixman and; (b) to a lesser extent, the Newman and Akkaya affidavits.
5. The reply affidavit of Marc Jacobs will address (a) the enormous loss
suffered by Respondents as a result of the ongoing TRO and the resultant forced closure
of the Shake A Paw store in Lynbrook; (b) the patently false representation by OAG that
Shake A Paw purchases puppies for $45; (c) the litany of demonstrably false
representations presented by OAG through the affidavit of Matthew Roper; and (d) the
improper and failed effort of OAG to impeach the independent veterinarian’s
certification as healthy and fit for sale 214 out of 220 puppies that he examined; and (e)
the apparent efforts by members of the public to improperly pressure this Court (by
posting the photograph and phone number of Justice Voutsinas of this Court, and having
their members constantly contact Chambers).
6. Respondents’ reply memorandum of law will demonstrate (a) that
OAG may not now cure defects in its case and present new claims and arguments nowhere
2
2 of 12
FILED: NASSAU COUNTY CLERK 03/08/2022 07:04 PM INDEX NO. 615766/2021
NYSCEF DOC. NO. 206 RECEIVED NYSCEF: 03/08/2022
presented in the petition; (b) that the standards for granting Respondents’ motion to
vacate the December 17 TRO have been met; and (c) OAG’s proffered new medical
“evidence” has not been properly substantiated for admission into evidence; and (d) the
various other new arguments presented by OAG are meritless and/or not properly before
this Court.
THE AFFIDAVITS OF OAG VETS ASHLEY NEWMAN
AND KAYLA AKKAYA MUST BE STRICKEN, AS THEIR
SUBMISSION VIOLATES THE AGREEMENT MADE BY
THE ATTORNEY GENERAL CONCERNING THE
LIMITED PURPOSE OF THE OAG VET
EXAMINATIONS.
7. This Court should reject the affidavits of Ashley Newman, D.V.M.,
and Kayla Akkaya, D.V.M. (see NYSCEF Doc Nos. 202, 203), as these individuals were
veterinarians who volunteered for the OAG (“OAG Vets”) to examine puppies at the
Shake A Paw stores and clear them for sale prior to Christmas 2021, and it was previously
agreed by Assistant Attorney General Valerie Singleton that the OAG Vets would not
present any evidence arising from these examination to support the OAG’s case.
8. At the conference held with the Court in Chambers on March 4, I
voiced this same objection, and stated that Ms. Singleton had expressly agreed that no
evidence would be adduced from these OAG Vet examinations, and that the sole purpose
of allowing the OAG Vets to examine the puppies was to assure their health and fitness
for sale, and not for any investigatory or evidentiary purposes. The Court expressed
recalling the same. Yet Ms. Singleton denied making these statements.
3
3 of 12
FILED: NASSAU COUNTY CLERK 03/08/2022 07:04 PM INDEX NO. 615766/2021
NYSCEF DOC. NO. 206 RECEIVED NYSCEF: 03/08/2022
9. Later in the afternoon of March 4, I ordered the transcript of
proceedings held on December 23, 2022. A copy of that 33-page transcript is attached
hereto as Exhibit “A.” As the Court can see, the following colloquy occurs at pages 23-
26:
THE COURT: Much appreciated because we don't want any
miscommunication with these puppies either. We don't want
to have them lingering. If they have issues, let's address them.
Are there any other issues?
MS. SINGLETON: Your Honor, I just want to be very clear,
but with respect to producing notes, et cetera, we are not
doing that -- again, I want to be very mindful of assigning a
role that these doctors and technicians did not take on. I
don't want any, potentially any liability being attached to
them. They are not certifying the dogs. We are just saying
we are going in just to make sure that these dogs are fit and
that –
THE COURT: Ms. Singleton, there is a problem there and I
want you to be mindful of that problem. The problem is it's
all fine and good when we all agree, but when you don't
agree, when the two of you don't agree and we are faced with
potentially a dog who Mr. Hamburger says is fine and your
volunteer vet saying it's not, then you are going to have to
bring in someone to say, hey, it's not. Otherwise, I have
nothing to go by.
MS. SINGLETON: I understand that, your Honor, and then
at that point, I would retain somebody for that.
THE COURT: Very good, so we can all have an
understanding that these are volunteers. We are trying to
move the process along. I know there was an objection to Fox.
I am not so sure about Fox. I think this is the best avenue. I
really do.
MR. HAMBURGER: Can we put in the stipulation that the
Attorney General will direct the volunteer veterinarians not to
4
4 of 12
FILED: NASSAU COUNTY CLERK 03/08/2022 07:04 PM INDEX NO. 615766/2021
NYSCEF DOC. NO. 206 RECEIVED NYSCEF: 03/08/2022
destroy any of their notes or any of the records that they made
even though she is not turning them over in case we need to
look at that down the road. I don't want those destroyed on
dogs that they don't pass.
MS. SINGLETON: Your Honor, just so we are clear and I
want to be very upfront, transparent. This is making me a
little uncomfortable and if we can't have an agreement,
because, again, these guys, their medical malpractice
insurance does not cover, I don't think -- now, I would have to
look into this, but I do not think that their medical
malpractice would cover this. I will have to talk to –
THE COURT: I don't even know how that comes into play. I
think at this point, Mr. Hamburger, if the AG's office has an
issue with the dog and it's due to a volunteer voluntarily
looking at a dog, then they are going to have to bring in an
expert within a certain time frame, you know, within 48 to
72 hours to really examine the dog if they want to object to
the dog coming in because I don't want to put the volunteers
in jeopardy also, but it's just, you know, someone willing to
come in and look at these dogs and identify, just a second
set of eyes and identify if there are any issues. It's a little
complicated but we are working with it, so I just want
everybody to be aware that if there is an issue with the dog,
then the AG's office has to come forward and identify the
issue with the dog with someone that is going to be willing
to tell the Court that there is an issue with the dog. So in that
instance, they are going to have to produce their records.
Otherwise, I am going to have to go with the certification of
Dr. Fox. That's not something for the stipulation, but what
you can put in the stipulation is that this group of
volunteers, they are going to examine the dogs just for
fitness, not for the purpose of litigation, and that should any
issues arise with the dogs, that the AG's office immediately
advise the respondents, and then we will take it from there. I
suspect that will be a conference.
MR. YAFFE: So in connection with that, your Honor, they are
not, these volunteers are not gathering evidence. They are
simply looking at dogs.
THE COURT: Well, that is what they are telling me.
5
5 of 12
FILED: NASSAU COUNTY CLERK 03/08/2022 07:04 PM INDEX NO. 615766/2021
NYSCEF DOC. NO. 206 RECEIVED NYSCEF: 03/08/2022
MR. YAFFE: Right, so they want to look at medical records.
They are not taking the medical records back to the Attorney
General. They are not copying them, they are not
photographing them. They are looking at it as part of their
on-site evaluation. They are not gathering evidence for the
Attorney General, so we can put that in the order as well.
MS. SINGLETON: We have taken great steps to make it
extremely clear and the Court has made it extremely clear
that they are operating as independent evaluators. They are
not the agent of the Attorney General. We have made that
extremely and abundantly clear and that their only role --
they are not to look at the conditions of the store. They are
only there to examine the puppies and they only are
allowed to have access to records that relate to the
examination of the puppies and that is all, and that is all
that they are there to do, your Honor. They are not there to
gather additional evidence for the Attorney General.
THE COURT: Okay.
(Emphasis added).
10. Worse, the Court will also recall my asking Ms. Singleton on March
4 in Chambers if she had received copies of any of the prior transcripts of proceedings,
and she said no that she had not. I asked this question because Ms. Singleton had
previously asked me, as we were negotiating by telephone the terms of the stipulation
following the December 23 conference, if I would share the cost of the December 23
transcript with OAG, as that transcript might resolve our disagreement as to what the
Court had said and directed during the conference. I told Ms. Singleton that I would
share that transcript cost, but unfortunately, I have no writing which confirms that
conversation, and Ms. Singleton, in Chambers on March 4, also denied our agreement to
order and share the cost of the transcript.
6
6 of 12
FILED: NASSAU COUNTY CLERK 03/08/2022 07:04 PM INDEX NO. 615766/2021
NYSCEF DOC. NO. 206 RECEIVED NYSCEF: 03/08/2022
11. However, although I cannot prove that Ms. Singleton asked me, and
I agreed, to purchase and pay half of the December 23 transcript, I can prove that her
statement, made in Chambers on March 4, that she had not received the transcript is
false.
12. On March 4, after the conference, my office was able to obtain the
attached transcript of proceedings held December 23, 2022 (Exh. “A”), upon payment of
the court reporter’s fee via Venmo. We did not have to wait for the transcript to be
prepared as the December 23 conference had already been transcribed. In fact, my
assistant was told by the court reporter, that she had provided this same transcript to the
Attorney General on January 5, 2022. My assistant confirmed this in an email exchange
with the court reporter on March 7, a copy of which is attached hereto as Exhibit “B.”
Specifically, court reporter, Jennifer Shoum, stated:
The Attorney General’s office emailed me to order the
transcript while I was off for Christmas break and the court
was closed. I responded once I returned after the new year
and they received the transcript 1/5/22.
(Emphasis added.)
13. Clearly, as Ms. Singleton and Bedell sat in Chambers on March 4,
they had the December 23 transcript, they had read it, and they knew it provided exactly
as I had represented (and as the Court recollected) – namely, that OAG had agreed that
no evidence would be adduced from the OAG Vet examinations, which were solely to
assure the health and fitness of puppies for sale.
7
7 of 12
FILED: NASSAU COUNTY CLERK 03/08/2022 07:04 PM INDEX NO. 615766/2021
NYSCEF DOC. NO. 206 RECEIVED NYSCEF: 03/08/2022
14. There is also a separate confirmatory email that I sent to Ms.
Singleton and Assistant Attorney General Christina Bedell on December 23, 2022, at 5:53
PM. after the December 23 conference with the Court, a copy of which is attached hereto
as Exhibit “C. That email states:
Valerie and Christina,
Here is a revised stipulation in clean and redlined formats
which reflect the changes we are comfortable making. This
will also confirm your representation to me, taken out of the
stipulation at your request, that petitioners’ designated
veterinarians are not acting in an investigatory or evidence
gathering capacity, but are examining puppies solely to
assess their health and fitness for sale.
(Emphasis added).
15. As the December 23 transcript shows, the parties were to incorporate
what had been agreed at the conference into a stipulation. Ms. Singleton and I went back
and forth on the afternoon of December 23 and our last communication was my email
quoted above, which includes clean and redlined drafts. Neither Ms. Singleton nor Ms.
Bedell ever got back to me with respect to this latest draft and, frankly, it was a moot
point because by the end of the day on December 23, the OAG Vet examinations had
been concluded at both stores.
16. That the examinations by the OAG Vets was, by agreement, not to
be investigative or evidentiary also resolved issues that Respondents’ had raised with
regard to OAG Vet recordkeeping. This Court will remember that Respondents wanted
to receive copies of all the notes or records generated by the OAG Vets and Ms. Singleton
opposed that request on the specific basis that the OAG Vet examinations would be used
8
8 of 12
FILED: NASSAU COUNTY CLERK 03/08/2022 07:04 PM INDEX NO. 615766/2021
NYSCEF DOC. NO. 206 RECEIVED NYSCEF: 03/08/2022
for no purpose other than to assure the health of the puppies as fit for sale. Thus, Ms.
Singleton stated:
I just want to be very clear, but with respect to producing
notes, et cetera, we are not doing that -- again, I want to be
very mindful of assigning a role that these doctors and
technicians did not take on. I don't want any, potentially any
liability being attached to them. They are not certifying the
dogs. We are just saying we are going in just to make sure
that these dogs are fit and that --
(Exh. “A,” 12/23/21 Transcript, p. 23) (emphasis added)
17. This Court was equally clear that OAG would not be able to use the
OAG Vet examinations for investigative or evidentiary purposes, immediately stating:
THE COURT: Ms. Singleton, there is a problem there and I
want you to be mindful of that problem. The problem is it's
all fine and good when we all agree, but when you don't
agree, when the two of you don't agree and we are faced with
potentially a dog who Mr. Hamburger says is fine and your
volunteer vet saying it's not, then you are going to have to
bring in someone to say, hey, it's not. Otherwise, I have
nothing to go by.
MS. SINGLETON: I understand that, your Honor, and then
at that point, I would retain somebody for that.
THE COURT: Very good, so we can all have an
understanding that these are volunteers.
(Exh. “A,” 12/23/21 Transcript, p. 23) (emphasis added).
18. OAG’s submission of the Newman and Akkaya affidavits is clearly
barred by the OAG’s prior agreement, and Ms. Singleton’s denial of the fact that she had
the transcript, which confirms such agreement -- a representation made to the Court in
Chambers on March 4 -- is a serious breach of professional ethics.
9
9 of 12
FILED: NASSAU COUNTY CLERK 03/08/2022 07:04 PM INDEX NO. 615766/2021
NYSCEF DOC. NO. 206 RECEIVED NYSCEF: 03/08/2022
RESPONDENTS COOPERATED AND TOOK NO ACTIONS
TO IMPEDE OR INTERFERE WITH OAG’S INVESTIGATION
19. OAG repeats its false allegation that Shake A Paw did not cooperate
with the OAG investigations (Affirmation in Opposition of Christina Bedell, dated March
3, 2022 [“Bedell Aff.” ¶ 7-10).
20. There were a total of three OAG subpoenas served on Shake A Paw.
Shake A Paw fully complied with the second and third subpoenas, in 2019 and 2021,
which requested information on specific transactions, and Ms. Bedell does not claim
otherwise (see Bedell Aff., ¶ 9). Her complaint concerns the first subpoena, served in 2016
(see Bedell Aff. ¶ 7) which, as we pointed out effectively requested every piece of paper
generated by the SAP business (see Affirmation of Richard Hamburger in Opposition to
Petition & In Support of Motion to Dismiss, dated February 2, 2022, NYSCEF Doc No.
121, ¶¶ 9-14).
21. My February 2, 2016 letter, objecting to the breadth of that subpoena
(see Exh. “C” to Bedell Aff.) went unanswered by OAG, despite my specific request to
“Please let me know if we can resolve these issues without judicial proceedings.” Id., p. 3.
Instead, OAG served subpoenas on several animal hospitals (Bedell Aff. ¶¶ 9. 10). No
claim is made that SAP interfered in any way with the animal hospitals’ compliance with
those subpoenas, and Ms. Bedell admits that objections posed by those non-parties were
resolved pursuant to stipulation or agreement (Bedell Aff. ¶ 7, 8).
22. In short, the allegation that SAP was uncooperative or impeded the
OAG investigation in some way is pure fantasy.
10
10 of 12
FILED: NASSAU COUNTY CLERK 03/08/2022 07:04 PM INDEX NO. 615766/2021
NYSCEF DOC. NO. 206 RECEIVED NYSCEF: 03/08/2022
CONCLUSION
Respondents'
23. motion to vacate the TRO issued on December 17,
2021 should be granted.
Respondents'
24. motion to dismiss this petition should be granted and
the petition should be denied.
Dated: Melville, New York
March 8, 2022
RICHARD HAMBURGER
11
11 of 12
FILED: NASSAU COUNTY CLERK 03/08/2022 07:04 PM INDEX NO. 615766/2021
NYSCEF DOC. NO. 206 RECEIVED NYSCEF: 03/08/2022
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 reply affirmation complies with Rule 17 of the Uniform
Civil Rules for the Supreme Court and the County Court.
The word processor states that this reply affirmation contains 2,878 words.
The typeface (font) is New Baskerville.
The point size is 12.
The line spacing is double.
Dated: Melville, New York
March 8, 2022
HAMBURGER, MAXSON, YAFFE
& MARTINGALE, LLP
Attorneys for Respondents
By:
Richard Hamburger, Esq.
225 Broadhollow Road, Suite 301E
Melville, New York 11747
631.694.2400
12
12 of 12
Preview
FILED: NASSAU COUNTY CLERK 03/08/2022 07:04 PM INDEX NO. 615766/2021 NYSCEF DOC. NO. 206 RECEIVED NYSCEF: 03/08/2022 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 REPLY AFFIRMATION IN York, FURTHER SUPPORT OF Petitioner, (a) MOTION TO VACATE - against - TRO PURSUANT TO CPLR § 6314; AND (b) 5 CORNERS PET, INC., RISK ENTERPRISES, INC. d/b/a MOTION TO DISMISS SHAKE-A-PAW, and GERARD O’SULLIVAN and MARC PETITION JACOBS, both individually and as owners of Shake-A-Paw, Index No.: 615766/2021 Respondents. Assigned Justice: ------------------------------------------------------------------------------X HON. HELEN VOUTSINAS RICHARD HAMBURGER, an attorney at law, duly licensed to practice in the State of New York, affirms under penalties of perjury as follows: INTRODUCTION 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. This reply affirmation responds to the most recent submissions of the Attorney General’s Office (“OAG”), handed to us, late, in Chambers on March 4, or filed even later that day on NYSCEF. Also filed in reply at this time are the reply affidavit of Marc Jacobs (“Jacobs Reply Aff.”), the reply affidavit of Steven Fox, D.V.M. (“Fox Reply Aff.”), and Respondents’ reply memorandum of law (“Resp. Reply MOL”). 1 1 of 12 FILED: NASSAU COUNTY CLERK 03/08/2022 07:04 PM INDEX NO. 615766/2021 NYSCEF DOC. NO. 206 RECEIVED NYSCEF: 03/08/2022 2. As the Court will see, OAG has doubled down on its allegations and is struggling to fill the gaps in its case with evidence that does not exist, is inadmissible, constitutes prohibited reply, or proves nothing, as well as legal arguments that are unsubstantiated and inflammatory. 3. This reply affidavit will address (a) OAG’s egregious submission of affidavits by OAG Vets Ashley Newman and Kayla Akkaya; and (b) the false allegation that Respondents were uncooperative or in some way impeded or interfered with OAG’s investigation. 4. The reply affidavit of Dr. Steven Fox will address (a) the expert affidavit of Dr. Julie Fixman and; (b) to a lesser extent, the Newman and Akkaya affidavits. 5. The reply affidavit of Marc Jacobs will address (a) the enormous loss suffered by Respondents as a result of the ongoing TRO and the resultant forced closure of the Shake A Paw store in Lynbrook; (b) the patently false representation by OAG that Shake A Paw purchases puppies for $45; (c) the litany of demonstrably false representations presented by OAG through the affidavit of Matthew Roper; and (d) the improper and failed effort of OAG to impeach the independent veterinarian’s certification as healthy and fit for sale 214 out of 220 puppies that he examined; and (e) the apparent efforts by members of the public to improperly pressure this Court (by posting the photograph and phone number of Justice Voutsinas of this Court, and having their members constantly contact Chambers). 6. Respondents’ reply memorandum of law will demonstrate (a) that OAG may not now cure defects in its case and present new claims and arguments nowhere 2 2 of 12 FILED: NASSAU COUNTY CLERK 03/08/2022 07:04 PM INDEX NO. 615766/2021 NYSCEF DOC. NO. 206 RECEIVED NYSCEF: 03/08/2022 presented in the petition; (b) that the standards for granting Respondents’ motion to vacate the December 17 TRO have been met; and (c) OAG’s proffered new medical “evidence” has not been properly substantiated for admission into evidence; and (d) the various other new arguments presented by OAG are meritless and/or not properly before this Court. THE AFFIDAVITS OF OAG VETS ASHLEY NEWMAN AND KAYLA AKKAYA MUST BE STRICKEN, AS THEIR SUBMISSION VIOLATES THE AGREEMENT MADE BY THE ATTORNEY GENERAL CONCERNING THE LIMITED PURPOSE OF THE OAG VET EXAMINATIONS. 7. This Court should reject the affidavits of Ashley Newman, D.V.M., and Kayla Akkaya, D.V.M. (see NYSCEF Doc Nos. 202, 203), as these individuals were veterinarians who volunteered for the OAG (“OAG Vets”) to examine puppies at the Shake A Paw stores and clear them for sale prior to Christmas 2021, and it was previously agreed by Assistant Attorney General Valerie Singleton that the OAG Vets would not present any evidence arising from these examination to support the OAG’s case. 8. At the conference held with the Court in Chambers on March 4, I voiced this same objection, and stated that Ms. Singleton had expressly agreed that no evidence would be adduced from these OAG Vet examinations, and that the sole purpose of allowing the OAG Vets to examine the puppies was to assure their health and fitness for sale, and not for any investigatory or evidentiary purposes. The Court expressed recalling the same. Yet Ms. Singleton denied making these statements. 3 3 of 12 FILED: NASSAU COUNTY CLERK 03/08/2022 07:04 PM INDEX NO. 615766/2021 NYSCEF DOC. NO. 206 RECEIVED NYSCEF: 03/08/2022 9. Later in the afternoon of March 4, I ordered the transcript of proceedings held on December 23, 2022. A copy of that 33-page transcript is attached hereto as Exhibit “A.” As the Court can see, the following colloquy occurs at pages 23- 26: THE COURT: Much appreciated because we don't want any miscommunication with these puppies either. We don't want to have them lingering. If they have issues, let's address them. Are there any other issues? MS. SINGLETON: Your Honor, I just want to be very clear, but with respect to producing notes, et cetera, we are not doing that -- again, I want to be very mindful of assigning a role that these doctors and technicians did not take on. I don't want any, potentially any liability being attached to them. They are not certifying the dogs. We are just saying we are going in just to make sure that these dogs are fit and that – THE COURT: Ms. Singleton, there is a problem there and I want you to be mindful of that problem. The problem is it's all fine and good when we all agree, but when you don't agree, when the two of you don't agree and we are faced with potentially a dog who Mr. Hamburger says is fine and your volunteer vet saying it's not, then you are going to have to bring in someone to say, hey, it's not. Otherwise, I have nothing to go by. MS. SINGLETON: I understand that, your Honor, and then at that point, I would retain somebody for that. THE COURT: Very good, so we can all have an understanding that these are volunteers. We are trying to move the process along. I know there was an objection to Fox. I am not so sure about Fox. I think this is the best avenue. I really do. MR. HAMBURGER: Can we put in the stipulation that the Attorney General will direct the volunteer veterinarians not to 4 4 of 12 FILED: NASSAU COUNTY CLERK 03/08/2022 07:04 PM INDEX NO. 615766/2021 NYSCEF DOC. NO. 206 RECEIVED NYSCEF: 03/08/2022 destroy any of their notes or any of the records that they made even though she is not turning them over in case we need to look at that down the road. I don't want those destroyed on dogs that they don't pass. MS. SINGLETON: Your Honor, just so we are clear and I want to be very upfront, transparent. This is making me a little uncomfortable and if we can't have an agreement, because, again, these guys, their medical malpractice insurance does not cover, I don't think -- now, I would have to look into this, but I do not think that their medical malpractice would cover this. I will have to talk to – THE COURT: I don't even know how that comes into play. I think at this point, Mr. Hamburger, if the AG's office has an issue with the dog and it's due to a volunteer voluntarily looking at a dog, then they are going to have to bring in an expert within a certain time frame, you know, within 48 to 72 hours to really examine the dog if they want to object to the dog coming in because I don't want to put the volunteers in jeopardy also, but it's just, you know, someone willing to come in and look at these dogs and identify, just a second set of eyes and identify if there are any issues. It's a little complicated but we are working with it, so I just want everybody to be aware that if there is an issue with the dog, then the AG's office has to come forward and identify the issue with the dog with someone that is going to be willing to tell the Court that there is an issue with the dog. So in that instance, they are going to have to produce their records. Otherwise, I am going to have to go with the certification of Dr. Fox. That's not something for the stipulation, but what you can put in the stipulation is that this group of volunteers, they are going to examine the dogs just for fitness, not for the purpose of litigation, and that should any issues arise with the dogs, that the AG's office immediately advise the respondents, and then we will take it from there. I suspect that will be a conference. MR. YAFFE: So in connection with that, your Honor, they are not, these volunteers are not gathering evidence. They are simply looking at dogs. THE COURT: Well, that is what they are telling me. 5 5 of 12 FILED: NASSAU COUNTY CLERK 03/08/2022 07:04 PM INDEX NO. 615766/2021 NYSCEF DOC. NO. 206 RECEIVED NYSCEF: 03/08/2022 MR. YAFFE: Right, so they want to look at medical records. They are not taking the medical records back to the Attorney General. They are not copying them, they are not photographing them. They are looking at it as part of their on-site evaluation. They are not gathering evidence for the Attorney General, so we can put that in the order as well. MS. SINGLETON: We have taken great steps to make it extremely clear and the Court has made it extremely clear that they are operating as independent evaluators. They are not the agent of the Attorney General. We have made that extremely and abundantly clear and that their only role -- they are not to look at the conditions of the store. They are only there to examine the puppies and they only are allowed to have access to records that relate to the examination of the puppies and that is all, and that is all that they are there to do, your Honor. They are not there to gather additional evidence for the Attorney General. THE COURT: Okay. (Emphasis added). 10. Worse, the Court will also recall my asking Ms. Singleton on March 4 in Chambers if she had received copies of any of the prior transcripts of proceedings, and she said no that she had not. I asked this question because Ms. Singleton had previously asked me, as we were negotiating by telephone the terms of the stipulation following the December 23 conference, if I would share the cost of the December 23 transcript with OAG, as that transcript might resolve our disagreement as to what the Court had said and directed during the conference. I told Ms. Singleton that I would share that transcript cost, but unfortunately, I have no writing which confirms that conversation, and Ms. Singleton, in Chambers on March 4, also denied our agreement to order and share the cost of the transcript. 6 6 of 12 FILED: NASSAU COUNTY CLERK 03/08/2022 07:04 PM INDEX NO. 615766/2021 NYSCEF DOC. NO. 206 RECEIVED NYSCEF: 03/08/2022 11. However, although I cannot prove that Ms. Singleton asked me, and I agreed, to purchase and pay half of the December 23 transcript, I can prove that her statement, made in Chambers on March 4, that she had not received the transcript is false. 12. On March 4, after the conference, my office was able to obtain the attached transcript of proceedings held December 23, 2022 (Exh. “A”), upon payment of the court reporter’s fee via Venmo. We did not have to wait for the transcript to be prepared as the December 23 conference had already been transcribed. In fact, my assistant was told by the court reporter, that she had provided this same transcript to the Attorney General on January 5, 2022. My assistant confirmed this in an email exchange with the court reporter on March 7, a copy of which is attached hereto as Exhibit “B.” Specifically, court reporter, Jennifer Shoum, stated: The Attorney General’s office emailed me to order the transcript while I was off for Christmas break and the court was closed. I responded once I returned after the new year and they received the transcript 1/5/22. (Emphasis added.) 13. Clearly, as Ms. Singleton and Bedell sat in Chambers on March 4, they had the December 23 transcript, they had read it, and they knew it provided exactly as I had represented (and as the Court recollected) – namely, that OAG had agreed that no evidence would be adduced from the OAG Vet examinations, which were solely to assure the health and fitness of puppies for sale. 7 7 of 12 FILED: NASSAU COUNTY CLERK 03/08/2022 07:04 PM INDEX NO. 615766/2021 NYSCEF DOC. NO. 206 RECEIVED NYSCEF: 03/08/2022 14. There is also a separate confirmatory email that I sent to Ms. Singleton and Assistant Attorney General Christina Bedell on December 23, 2022, at 5:53 PM. after the December 23 conference with the Court, a copy of which is attached hereto as Exhibit “C. That email states: Valerie and Christina, Here is a revised stipulation in clean and redlined formats which reflect the changes we are comfortable making. This will also confirm your representation to me, taken out of the stipulation at your request, that petitioners’ designated veterinarians are not acting in an investigatory or evidence gathering capacity, but are examining puppies solely to assess their health and fitness for sale. (Emphasis added). 15. As the December 23 transcript shows, the parties were to incorporate what had been agreed at the conference into a stipulation. Ms. Singleton and I went back and forth on the afternoon of December 23 and our last communication was my email quoted above, which includes clean and redlined drafts. Neither Ms. Singleton nor Ms. Bedell ever got back to me with respect to this latest draft and, frankly, it was a moot point because by the end of the day on December 23, the OAG Vet examinations had been concluded at both stores. 16. That the examinations by the OAG Vets was, by agreement, not to be investigative or evidentiary also resolved issues that Respondents’ had raised with regard to OAG Vet recordkeeping. This Court will remember that Respondents wanted to receive copies of all the notes or records generated by the OAG Vets and Ms. Singleton opposed that request on the specific basis that the OAG Vet examinations would be used 8 8 of 12 FILED: NASSAU COUNTY CLERK 03/08/2022 07:04 PM INDEX NO. 615766/2021 NYSCEF DOC. NO. 206 RECEIVED NYSCEF: 03/08/2022 for no purpose other than to assure the health of the puppies as fit for sale. Thus, Ms. Singleton stated: I just want to be very clear, but with respect to producing notes, et cetera, we are not doing that -- again, I want to be very mindful of assigning a role that these doctors and technicians did not take on. I don't want any, potentially any liability being attached to them. They are not certifying the dogs. We are just saying we are going in just to make sure that these dogs are fit and that -- (Exh. “A,” 12/23/21 Transcript, p. 23) (emphasis added) 17. This Court was equally clear that OAG would not be able to use the OAG Vet examinations for investigative or evidentiary purposes, immediately stating: THE COURT: Ms. Singleton, there is a problem there and I want you to be mindful of that problem. The problem is it's all fine and good when we all agree, but when you don't agree, when the two of you don't agree and we are faced with potentially a dog who Mr. Hamburger says is fine and your volunteer vet saying it's not, then you are going to have to bring in someone to say, hey, it's not. Otherwise, I have nothing to go by. MS. SINGLETON: I understand that, your Honor, and then at that point, I would retain somebody for that. THE COURT: Very good, so we can all have an understanding that these are volunteers. (Exh. “A,” 12/23/21 Transcript, p. 23) (emphasis added). 18. OAG’s submission of the Newman and Akkaya affidavits is clearly barred by the OAG’s prior agreement, and Ms. Singleton’s denial of the fact that she had the transcript, which confirms such agreement -- a representation made to the Court in Chambers on March 4 -- is a serious breach of professional ethics. 9 9 of 12 FILED: NASSAU COUNTY CLERK 03/08/2022 07:04 PM INDEX NO. 615766/2021 NYSCEF DOC. NO. 206 RECEIVED NYSCEF: 03/08/2022 RESPONDENTS COOPERATED AND TOOK NO ACTIONS TO IMPEDE OR INTERFERE WITH OAG’S INVESTIGATION 19. OAG repeats its false allegation that Shake A Paw did not cooperate with the OAG investigations (Affirmation in Opposition of Christina Bedell, dated March 3, 2022 [“Bedell Aff.” ¶ 7-10). 20. There were a total of three OAG subpoenas served on Shake A Paw. Shake A Paw fully complied with the second and third subpoenas, in 2019 and 2021, which requested information on specific transactions, and Ms. Bedell does not claim otherwise (see Bedell Aff., ¶ 9). Her complaint concerns the first subpoena, served in 2016 (see Bedell Aff. ¶ 7) which, as we pointed out effectively requested every piece of paper generated by the SAP business (see Affirmation of Richard Hamburger in Opposition to Petition & In Support of Motion to Dismiss, dated February 2, 2022, NYSCEF Doc No. 121, ¶¶ 9-14). 21. My February 2, 2016 letter, objecting to the breadth of that subpoena (see Exh. “C” to Bedell Aff.) went unanswered by OAG, despite my specific request to “Please let me know if we can resolve these issues without judicial proceedings.” Id., p. 3. Instead, OAG served subpoenas on several animal hospitals (Bedell Aff. ¶¶ 9. 10). No claim is made that SAP interfered in any way with the animal hospitals’ compliance with those subpoenas, and Ms. Bedell admits that objections posed by those non-parties were resolved pursuant to stipulation or agreement (Bedell Aff. ¶ 7, 8). 22. In short, the allegation that SAP was uncooperative or impeded the OAG investigation in some way is pure fantasy. 10 10 of 12 FILED: NASSAU COUNTY CLERK 03/08/2022 07:04 PM INDEX NO. 615766/2021 NYSCEF DOC. NO. 206 RECEIVED NYSCEF: 03/08/2022 CONCLUSION Respondents' 23. motion to vacate the TRO issued on December 17, 2021 should be granted. Respondents' 24. motion to dismiss this petition should be granted and the petition should be denied. Dated: Melville, New York March 8, 2022 RICHARD HAMBURGER 11 11 of 12 FILED: NASSAU COUNTY CLERK 03/08/2022 07:04 PM INDEX NO. 615766/2021 NYSCEF DOC. NO. 206 RECEIVED NYSCEF: 03/08/2022 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 reply affirmation complies with Rule 17 of the Uniform Civil Rules for the Supreme Court and the County Court. The word processor states that this reply affirmation contains 2,878 words. The typeface (font) is New Baskerville. The point size is 12. The line spacing is double. Dated: Melville, New York March 8, 2022 HAMBURGER, MAXSON, YAFFE & MARTINGALE, LLP Attorneys for Respondents By: Richard Hamburger, Esq. 225 Broadhollow Road, Suite 301E Melville, New York 11747 631.694.2400 12 12 of 12