Preview
FILED: NASSAU COUNTY CLERK 04/19/2022 03:12 PM INDEX NO. 615766/2021
NYSCEF DOC. NO. 294 RECEIVED NYSCEF: 04/19/2022
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 IN
York, SUPPORT OF MOTION TO
Petitioner, MODIFY TRO PURSUANT
- against - TO CPLR § 6314
5 CORNERS PET, INC., RISK ENTERPRISES, INC. d/b/a Index No.: 615766/2021
SHAKE-A-PAW, and GERARD O’SULLIVAN and MARC
JACOBS, both individually and as owners of Shake-A-Paw, Assigned Justice:
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:
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, and I am fully familiar with the facts and circumstances
stated herein.
2. This affirmation is submitted in support of Respondents’ motion to
modify condition number “4” of this Court’s Short For Order (“Condition 4”), dated April
7, 2022 (the “April 7 Order”)(NYSCEF Doc. 283) which, in turn, modified the condition
1
1 of 12
FILED: NASSAU COUNTY CLERK 04/19/2022 03:12 PM INDEX NO. 615766/2021
NYSCEF DOC. NO. 294 RECEIVED NYSCEF: 04/19/2022
of a temporary restraining order issued by the Court on December 17, 2021 (NYSCEF
Doc. 94). Specifically, Condition 4 provided that:
All animals shall be examined by an independent
veterinarian, approved by Petitioners, and found to be fit for
sale. NYAG shall provide a list of three (3) approved
veterinarians within five (5) days of entry [of] the date of this
Order (“Condition No. 4”);
April 7 Order, p. 16.
3. Condition No. 4 was one of five enumerated conditions set down by
the Court to permit Respondents “to purchase live animals for resale in accordance with
all applicable federal, state and local laws” (April 7 Order, p. 15).
4. The other enumerated conditions were:
a. Posting a $250,000 performance bond (Condition 1);
b. Purchasing animals only from USDA licensed breeders or
brokers and in compliance with Nassau County Local Law 11-2014 (Condition 2);
c. Providing a weekly list of all breeders or brokers from whom
puppies were purchased (Condition 3); and
d. Amending the contract form so as address the provisions that
the Court found misleading in the April 7 Order (Condition 5).
April 7 Order, p. 16.
5. For the reasons that follow, Condition No. 4 should be modified to
provide:
All animals shall be examined by a licensed veterinarian and
found to be fit for sale.
6. In addition, the proposed temporary restraining order, included in
the order to show cause that brings on this motion to modify, should be granted, so as to
2
2 of 12
FILED: NASSAU COUNTY CLERK 04/19/2022 03:12 PM INDEX NO. 615766/2021
NYSCEF DOC. NO. 294 RECEIVED NYSCEF: 04/19/2022
allow the immediate sale of 23 puppies on which refundable deposits have been taken, as
well as any other puppies for which deposits have been taken and which have been
examined and found fit for sale by licensed veterinarian Dr. Andy Rose, D.V.M., pending
the hearing and determination of this motion. All 23 of these puppies have already been
examined and found fit for sale by Dr. Rose.
RESPONDENTS HAVE SATISFIED
CONDITIONS 1, 2, 3 AND 5 – AS REQUIRED BY THE COURT.
A. Condition 1 - Respondents Have Posted the Required $250,000 Performance
Bond.
7. The first condition of the April 7 Order was that Respondents “post
a performance bond in the sum of $250,000 by a surety or bonding company licensed by,
and in good standing with, the New York State Department of Financial Services” (April
7 Order, p. 16).
8. Attached as Exhibit “A” is a copy of that performance bond which we
have secured in compliance with the April 7 Order. The original is in my possession, and
I await instruction from the Court as to whether that original performance bond should
be filed with the Clerk of the Court or delivered to the NYAG.
B. Conditions 2 & 3 - Respondents Have Only Purchased Animals From Brokers
Duly Licensed with the USDA in Compliance with Nassau County Local Law
11-2014, and Have Provided Their First Weekly List of the Breeders and
Brokers from Whom Puppies Have Been Purchased.
9. The second condition of the April 7 Order was that “Respondents
shall only purchase animals from breeders or brokers duly licensed with the United States
3
3 of 12
FILED: NASSAU COUNTY CLERK 04/19/2022 03:12 PM INDEX NO. 615766/2021
NYSCEF DOC. NO. 294 RECEIVED NYSCEF: 04/19/2022
Department of Agriculture (“USDA”), and in compliance with Nassau County Local Law
No. 11-2014” (April 7 Order, p. 16).
10. The third condition of the April 7 Order was that “Respondents shall
provide to NYAG, weekly, a list of breeders or brokers from whom puppies are being
purchased” (April 7 Order, p. 16).
11. Attached as Exhibit “B” is the weekly Certification Affidavit of Marc
Jacobs, with exhibits, sworn to April 14, 2021, that was emailed to the Court and to the
NYAG that same day (“Certification Affidavit”). Exhibit “A” to the Certification Affidavit
is a 52-puppy inventory for the Shake A Paw Hicksville store as of the close of business
on April 13, 2022 (“Hicksville Inventory”). Exhibit “B” to the Certification Affidavit is a
53-puppy inventory for the Shake A Paw Lynbrook store as of the close of business on
April 13, 2022 (“Lynbrook Inventory”). The inventories show that the puppies were
received at the stores on April 8 or April 11, 2022.
12. As can be seen, Mr. Jacobs attests that the 105 puppies identified on
the Hicksville and Lynbrook Inventories were purchased either from Select Puppies, Inc.
(“Select Puppies”), or Loveable Goldstar Puppies, LLC (“Loveable Goldstar”), both
federally licensed by the United States Department of Agriculture (“USDA”)(¶ 3).
13. Mr. Jacobs also attached as Exhibits “C” and “D” to his Certification
Affidavit the most recent inspection reports of the “Animal and Plant Health Inspection
Service of the USDA for those two brokers, dated October 5, 2021, and December 7,
2021, respectively. Each inspection report stated there were: “No non-compliant items
identified during this inspection” (¶ 3).
4
4 of 12
FILED: NASSAU COUNTY CLERK 04/19/2022 03:12 PM INDEX NO. 615766/2021
NYSCEF DOC. NO. 294 RECEIVED NYSCEF: 04/19/2022
14. For the completeness of the record I attach hereto true and accurate
downloads from the USDA Animal and Plant Inspection Service website for Select
Puppies (Exhibit “C”) and Loveable Goldstar (“Exhibit “D”) for the pages labeled
“Inspection Reports Search.”
15. As can be seen, Select Puppies is licensed pursuant to “customer
number” 506508 as an “Active” “Class-B Dealer” and has had no “Direct,” “Non-Critical”
or “Critical” inspection findings through December 19, 2019 (Exh. “C”). Select Puppies
scored a “Teachable Moment” on October 5, 2021 and on December 19, 2019, and a
“Non-Critical” violation on December 18, 2019.
16. As can be seen, Loveable Goldstar is licensed pursuant to “customer
number” 505009 as an “Active” “Class-B Dealer” and has had no “Direct,” “Non-Critical”
or “Critical” inspection findings through February 21, 2019 (Exh. “D”).
17. Nassau County Local Law 11-2014 prohibits pet stores in Nassau
County from purchasing from a breeder who has received and failed to cure one direct
violation within the past year, three or more different indirect violations within the past
year, or one or more reoccurring indirect violations within the past year. See April 7
Order, p. 14. The USDA inspection records (Exhs. “C” and “D,” supra), show that there
are no uncured predicate violations that precluded Shake A Paw from purchasing puppies
from Select Puppies or Loveable Goldstar in April 2022.
18. Accordingly, as has been demonstrated, Shake A Paw has complied
with Conditions 2 and 3 of the April 7 Order.
5
5 of 12
FILED: NASSAU COUNTY CLERK 04/19/2022 03:12 PM INDEX NO. 615766/2021
NYSCEF DOC. NO. 294 RECEIVED NYSCEF: 04/19/2022
C. Condition 5 – Respondents Have Amended Their Purchase Contract Form to
Address the Health Care Guarantee that this Court found prima facie
misleading in its April 7 Order.
19. Attached as Exhibit “C” to the accompanying affidavit of Marc Jacobs
is a copy of the purchase contract form and required disclosure notices now being used
by Shake A Paw at both its Hicksville and Lynbrook Stores. As can be seen, Respondents
have completely eliminated the extended health guarantee that they once provided to
their customers and now simply and strictly adhere to the requirements of the New York
Pet Lemon Law. Additional information sheets concerning, among other things, the care,
feeding and training of puppies, are also provided to the customers when the puppies
are taken home.
20. Accordingly, Shake A Paw has satisfied Condition 5 of the April 7
Order.
NYAG HAS DEFAULTED IN ITS OBLIGATION TO
PROVIDE A LIST OF THREE APPROVED
VETERINARIANS AS REQUIRED BY CONDITION 4.
21. Respondents have complied with four out of five conditions set by
this Court in the April 7 Order for resuming the sale of live animals (Conditions, 1, 2, 3
& 5). Respondents cannot comply with the final fifth condition (Condition 4), because
that required NYAG to “provide a list of three (3) approved veterinarians within five (5)
days” of the April 7 Order.
22. On the fifth day after the April 7 Order, Assistant Attorney General
Christina Bedell submitted the names of two veterinarians who were part of the
veterinarian team assembled by NYAG to examine Shake A Puppies on December 22 and
6
6 of 12
FILED: NASSAU COUNTY CLERK 04/19/2022 03:12 PM INDEX NO. 615766/2021
NYSCEF DOC. NO. 294 RECEIVED NYSCEF: 04/19/2022
23, 2021. Incredibly, one of those two proposed veterinarians had also submitted an
affidavit in support of the petition and against Respondents. Respondents promptly
objected to these veterinarians because of the obvious conflict of interest and lack of
independence that the Court required. Ms. Bedell’s April 12 proffer letter and our April
12 objection letter are attached hereto and incorporated herein as Exhibits “E” and “F,”
respectively.
23. The dispute as to the veterinarians designated by NYAG was resolved
in an email order from the Court dated April 13, 2022, a copy of which is annexed hereto
as Exhibit “G,” stating:
The Court writes in response to correspondence dated April
12, 2022.
The Attorney General shall provide a list of three (3)
veterinarians that have not been part of the action thus far.
24. It has now been another six days since the Court’s direction that
NYAG “shall provide a list of three (3) veterinarians that have not been part of the action
thus far” and the NYAG has proffered no additional veterinarians to perform the
examinations required by the Court in its two orders (April 7 and April 13).
SHAKE A PAW HAS TAKEN DEPOSITS ON 23 PUPPIES,
ALL OF WHICH HAVE BEEN CERTIFIED AS HEALTHY
AND FIT FOR SALE BY A LICENSED VETERINARIAN.
25. The accompanying affidavit of Marc Jacobs identifies 12 puppies
from the Hicksville Store and 11 puppies from the Lynbrook Store for which refundable
deposits have been taken from customers anxious to complete the adoption of their
puppies and bring them home.
7
7 of 12
FILED: NASSAU COUNTY CLERK 04/19/2022 03:12 PM INDEX NO. 615766/2021
NYSCEF DOC. NO. 294 RECEIVED NYSCEF: 04/19/2022
26. Also attached to the Jacobs Affidavit are health certificates issued by
licensed veterinarian, Dr. Andy Rose, D.V.M., for each of these 23 puppies that certifies
to their health and fitness for sale.
SHAKE A PAW SHOULD BE ALLOWED TO SELL
PUPPIES BASED ON THE HEALTH CERTIFICATIONS
OF ITS REGULAR LICENSED VETERINARIAN.
27. NYAG Has had 12 days to comply with this Court’s April 7 Order.
In that period, Shake A Paw has met, within its power, every condition set by the Court
for the resumption of live animal sales. There are now 23 healthy puppies for which
refundable deposits have been taken, and more deposits can be expected within the
coming week. There is no reason to hold up the sale of these puppies and not allow them
to be taken home, or to delay so long that their adoptive future owners ask for the refunds
of their deposits. A duly licensed veterinarian, Andy Rose, D.V.M., has certified their
health status, as required by law, and that certification is entirely consistent with the
certifications provided by the independent veterinarian appointed by the Court who
approved 214 of 220 puppies examined – 97.2%.
28. Not allowing these puppies to go home plays into the hands of the
NYAG who, from the beginning, has been intent on shutting down the Shake A Paw
business without a hearing. Having now heard both sides, this Court, in its April 7 Order
has found many questions of fact to exist and has set the matter down for a hearing on
May 4, 2022. The modification of the December 17 TRO was for the purpose of allowing
Respondents to resume the sale of puppies during the pendency of the hearing in order
8
8 of 12
FILED: NASSAU COUNTY CLERK 04/19/2022 03:12 PM INDEX NO. 615766/2021
NYSCEF DOC. NO. 294 RECEIVED NYSCEF: 04/19/2022
to stay alive as a viable business, but the NYAG is deliberately thwarting the Court’s April
7 Order.
THE TRO SHOULD BE GRANTED
29. The relief sought in Respondents’ Order to Show Cause is to allow
Shake A Paw to sell puppies based on the health certifications issued by a New York State
licensed veterinarian, not a particular veterinarian approved by NYAG. The relief sought
in the TRO – immediate relief – is to approve 23 specific puppy sales on which deposits
have been taken based on the health certifications of Shake A Paw’s regular veterinarian,
Dr. Andy Rose, D.V.M., and any other puppies so certified by Dr. Rose on which deposits
may be taken before the motion is decided.
30. This immediate TRO relief is required in order to allow the puppies
and their adoptive families to be together. From a business perspective, it also allows
Shake A Paw to secure revenue to stay in business, pay its employees and vendors, pay
the rent and utilities, etc., as the customers are otherwise free to request the return of
their refundable deposits and cancel the transaction unless and until Court-approved
health certifications are obtained.
STANDARD FOR MODIFYING THE TEMPORARY
RESTRAINING ORDER
31. CPLR § 6314 authorizes this Court, on a motion by a respondent
enjoined by a temporary restraining order, to vacate or modify the order. Such motions
are addressed to the sound discretion of the court (see, e.g., Rosemont Enterprises, Inc. v.
Irving, 49 A.D.2d 445 (1st Dept. 1975), and “it is appropriate for the court to consider the
9
9 of 12
FILED: NASSAU COUNTY CLERK 04/19/2022 03:12 PM INDEX NO. 615766/2021
NYSCEF DOC. NO. 294 RECEIVED NYSCEF: 04/19/2022
circumstances as they exist at the time the motion under CPLR 6314 is made, and to
consider changed circumstances” (13 Weinstein-Korn-Miller ¶6314.01(7), at p. 63-216).
32. Courts do not hesitate to modify and remove injunctions and
restraining orders that effectively require a defendant to “cease business” while an
underlying dispute is being adjudicated, and that subject a defendant to “great
inconvenience and loss.” See, e.g., Interfaith Medical Center v. Shahzad, 124 A.D.2d 557,
559 (2d Dept. 1986) (emphasis added) (“because the freeze on the [] bank accounts, in
effect, required that the defendant cease business, the burden to the defendant through the
imposition of that provision of the preliminary injunction is more burdensome than the
harm to the plaintiff. Therefore, we have modified the preliminary injunction by
removing only that provision which froze the bank accounts”); State v. Francis, 95 Misc.2d
381, 385 (Sup. Ct. NY Cnty. 1978) (emphasis added) (rejecting the Attorney General’s
request for injunctive relief that “would in all likelihood put the defendants out of business and
grant the plaintiff all the relief sought in the underlying complaint”); Forstmann v. Joray
Holding Co., 244 N.Y. 22, 29-30 (1926) (“[a]n injunction will be withheld as oppressive
when it appears that the injury is not serious or substantial, and that to restrain the acts
complained of would subject the other party to great inconvenience and loss”); Fanning
v. Grosfent, 58 A.D.2d 366, 367 (3rd Dept. 1977) (same).
MISCELANEOUS
33. No request for this or similar relief has been made to this or any
other Court.
10
10 of 12
FILED: NASSAU COUNTY CLERK 04/19/2022 03:12 PM INDEX NO. 615766/2021
NYSCEF DOC. NO. 294 RECEIVED NYSCEF: 04/19/2022
34. Petitioner will be emailed copies of the Order to Show Cause and the
papers on which it is based simultaneously with the NYSCEF filing of the motion.
Dated: Melville, New York
April 19, 2022
/S/ Richard Hamburger
RICHARD HAMBURGER
11
11 of 12
FILED: NASSAU COUNTY CLERK 04/19/2022 03:12 PM INDEX NO. 615766/2021
NYSCEF DOC. NO. 294 RECEIVED NYSCEF: 04/19/2022
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 2,504 words.
The typeface (font) is New Baskerville.
The point size is 12.
The line spacing is double.
Dated: Melville, New York
April 19, 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
12
12 of 12
Preview
FILED: NASSAU COUNTY CLERK 04/19/2022 03:12 PM INDEX NO. 615766/2021 NYSCEF DOC. NO. 294 RECEIVED NYSCEF: 04/19/2022 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 IN York, SUPPORT OF MOTION TO Petitioner, MODIFY TRO PURSUANT - against - TO CPLR § 6314 5 CORNERS PET, INC., RISK ENTERPRISES, INC. d/b/a Index No.: 615766/2021 SHAKE-A-PAW, and GERARD O’SULLIVAN and MARC JACOBS, both individually and as owners of Shake-A-Paw, Assigned Justice: 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: 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, and I am fully familiar with the facts and circumstances stated herein. 2. This affirmation is submitted in support of Respondents’ motion to modify condition number “4” of this Court’s Short For Order (“Condition 4”), dated April 7, 2022 (the “April 7 Order”)(NYSCEF Doc. 283) which, in turn, modified the condition 1 1 of 12 FILED: NASSAU COUNTY CLERK 04/19/2022 03:12 PM INDEX NO. 615766/2021 NYSCEF DOC. NO. 294 RECEIVED NYSCEF: 04/19/2022 of a temporary restraining order issued by the Court on December 17, 2021 (NYSCEF Doc. 94). Specifically, Condition 4 provided that: All animals shall be examined by an independent veterinarian, approved by Petitioners, and found to be fit for sale. NYAG shall provide a list of three (3) approved veterinarians within five (5) days of entry [of] the date of this Order (“Condition No. 4”); April 7 Order, p. 16. 3. Condition No. 4 was one of five enumerated conditions set down by the Court to permit Respondents “to purchase live animals for resale in accordance with all applicable federal, state and local laws” (April 7 Order, p. 15). 4. The other enumerated conditions were: a. Posting a $250,000 performance bond (Condition 1); b. Purchasing animals only from USDA licensed breeders or brokers and in compliance with Nassau County Local Law 11-2014 (Condition 2); c. Providing a weekly list of all breeders or brokers from whom puppies were purchased (Condition 3); and d. Amending the contract form so as address the provisions that the Court found misleading in the April 7 Order (Condition 5). April 7 Order, p. 16. 5. For the reasons that follow, Condition No. 4 should be modified to provide: All animals shall be examined by a licensed veterinarian and found to be fit for sale. 6. In addition, the proposed temporary restraining order, included in the order to show cause that brings on this motion to modify, should be granted, so as to 2 2 of 12 FILED: NASSAU COUNTY CLERK 04/19/2022 03:12 PM INDEX NO. 615766/2021 NYSCEF DOC. NO. 294 RECEIVED NYSCEF: 04/19/2022 allow the immediate sale of 23 puppies on which refundable deposits have been taken, as well as any other puppies for which deposits have been taken and which have been examined and found fit for sale by licensed veterinarian Dr. Andy Rose, D.V.M., pending the hearing and determination of this motion. All 23 of these puppies have already been examined and found fit for sale by Dr. Rose. RESPONDENTS HAVE SATISFIED CONDITIONS 1, 2, 3 AND 5 – AS REQUIRED BY THE COURT. A. Condition 1 - Respondents Have Posted the Required $250,000 Performance Bond. 7. The first condition of the April 7 Order was that Respondents “post a performance bond in the sum of $250,000 by a surety or bonding company licensed by, and in good standing with, the New York State Department of Financial Services” (April 7 Order, p. 16). 8. Attached as Exhibit “A” is a copy of that performance bond which we have secured in compliance with the April 7 Order. The original is in my possession, and I await instruction from the Court as to whether that original performance bond should be filed with the Clerk of the Court or delivered to the NYAG. B. Conditions 2 & 3 - Respondents Have Only Purchased Animals From Brokers Duly Licensed with the USDA in Compliance with Nassau County Local Law 11-2014, and Have Provided Their First Weekly List of the Breeders and Brokers from Whom Puppies Have Been Purchased. 9. The second condition of the April 7 Order was that “Respondents shall only purchase animals from breeders or brokers duly licensed with the United States 3 3 of 12 FILED: NASSAU COUNTY CLERK 04/19/2022 03:12 PM INDEX NO. 615766/2021 NYSCEF DOC. NO. 294 RECEIVED NYSCEF: 04/19/2022 Department of Agriculture (“USDA”), and in compliance with Nassau County Local Law No. 11-2014” (April 7 Order, p. 16). 10. The third condition of the April 7 Order was that “Respondents shall provide to NYAG, weekly, a list of breeders or brokers from whom puppies are being purchased” (April 7 Order, p. 16). 11. Attached as Exhibit “B” is the weekly Certification Affidavit of Marc Jacobs, with exhibits, sworn to April 14, 2021, that was emailed to the Court and to the NYAG that same day (“Certification Affidavit”). Exhibit “A” to the Certification Affidavit is a 52-puppy inventory for the Shake A Paw Hicksville store as of the close of business on April 13, 2022 (“Hicksville Inventory”). Exhibit “B” to the Certification Affidavit is a 53-puppy inventory for the Shake A Paw Lynbrook store as of the close of business on April 13, 2022 (“Lynbrook Inventory”). The inventories show that the puppies were received at the stores on April 8 or April 11, 2022. 12. As can be seen, Mr. Jacobs attests that the 105 puppies identified on the Hicksville and Lynbrook Inventories were purchased either from Select Puppies, Inc. (“Select Puppies”), or Loveable Goldstar Puppies, LLC (“Loveable Goldstar”), both federally licensed by the United States Department of Agriculture (“USDA”)(¶ 3). 13. Mr. Jacobs also attached as Exhibits “C” and “D” to his Certification Affidavit the most recent inspection reports of the “Animal and Plant Health Inspection Service of the USDA for those two brokers, dated October 5, 2021, and December 7, 2021, respectively. Each inspection report stated there were: “No non-compliant items identified during this inspection” (¶ 3). 4 4 of 12 FILED: NASSAU COUNTY CLERK 04/19/2022 03:12 PM INDEX NO. 615766/2021 NYSCEF DOC. NO. 294 RECEIVED NYSCEF: 04/19/2022 14. For the completeness of the record I attach hereto true and accurate downloads from the USDA Animal and Plant Inspection Service website for Select Puppies (Exhibit “C”) and Loveable Goldstar (“Exhibit “D”) for the pages labeled “Inspection Reports Search.” 15. As can be seen, Select Puppies is licensed pursuant to “customer number” 506508 as an “Active” “Class-B Dealer” and has had no “Direct,” “Non-Critical” or “Critical” inspection findings through December 19, 2019 (Exh. “C”). Select Puppies scored a “Teachable Moment” on October 5, 2021 and on December 19, 2019, and a “Non-Critical” violation on December 18, 2019. 16. As can be seen, Loveable Goldstar is licensed pursuant to “customer number” 505009 as an “Active” “Class-B Dealer” and has had no “Direct,” “Non-Critical” or “Critical” inspection findings through February 21, 2019 (Exh. “D”). 17. Nassau County Local Law 11-2014 prohibits pet stores in Nassau County from purchasing from a breeder who has received and failed to cure one direct violation within the past year, three or more different indirect violations within the past year, or one or more reoccurring indirect violations within the past year. See April 7 Order, p. 14. The USDA inspection records (Exhs. “C” and “D,” supra), show that there are no uncured predicate violations that precluded Shake A Paw from purchasing puppies from Select Puppies or Loveable Goldstar in April 2022. 18. Accordingly, as has been demonstrated, Shake A Paw has complied with Conditions 2 and 3 of the April 7 Order. 5 5 of 12 FILED: NASSAU COUNTY CLERK 04/19/2022 03:12 PM INDEX NO. 615766/2021 NYSCEF DOC. NO. 294 RECEIVED NYSCEF: 04/19/2022 C. Condition 5 – Respondents Have Amended Their Purchase Contract Form to Address the Health Care Guarantee that this Court found prima facie misleading in its April 7 Order. 19. Attached as Exhibit “C” to the accompanying affidavit of Marc Jacobs is a copy of the purchase contract form and required disclosure notices now being used by Shake A Paw at both its Hicksville and Lynbrook Stores. As can be seen, Respondents have completely eliminated the extended health guarantee that they once provided to their customers and now simply and strictly adhere to the requirements of the New York Pet Lemon Law. Additional information sheets concerning, among other things, the care, feeding and training of puppies, are also provided to the customers when the puppies are taken home. 20. Accordingly, Shake A Paw has satisfied Condition 5 of the April 7 Order. NYAG HAS DEFAULTED IN ITS OBLIGATION TO PROVIDE A LIST OF THREE APPROVED VETERINARIANS AS REQUIRED BY CONDITION 4. 21. Respondents have complied with four out of five conditions set by this Court in the April 7 Order for resuming the sale of live animals (Conditions, 1, 2, 3 & 5). Respondents cannot comply with the final fifth condition (Condition 4), because that required NYAG to “provide a list of three (3) approved veterinarians within five (5) days” of the April 7 Order. 22. On the fifth day after the April 7 Order, Assistant Attorney General Christina Bedell submitted the names of two veterinarians who were part of the veterinarian team assembled by NYAG to examine Shake A Puppies on December 22 and 6 6 of 12 FILED: NASSAU COUNTY CLERK 04/19/2022 03:12 PM INDEX NO. 615766/2021 NYSCEF DOC. NO. 294 RECEIVED NYSCEF: 04/19/2022 23, 2021. Incredibly, one of those two proposed veterinarians had also submitted an affidavit in support of the petition and against Respondents. Respondents promptly objected to these veterinarians because of the obvious conflict of interest and lack of independence that the Court required. Ms. Bedell’s April 12 proffer letter and our April 12 objection letter are attached hereto and incorporated herein as Exhibits “E” and “F,” respectively. 23. The dispute as to the veterinarians designated by NYAG was resolved in an email order from the Court dated April 13, 2022, a copy of which is annexed hereto as Exhibit “G,” stating: The Court writes in response to correspondence dated April 12, 2022. The Attorney General shall provide a list of three (3) veterinarians that have not been part of the action thus far. 24. It has now been another six days since the Court’s direction that NYAG “shall provide a list of three (3) veterinarians that have not been part of the action thus far” and the NYAG has proffered no additional veterinarians to perform the examinations required by the Court in its two orders (April 7 and April 13). SHAKE A PAW HAS TAKEN DEPOSITS ON 23 PUPPIES, ALL OF WHICH HAVE BEEN CERTIFIED AS HEALTHY AND FIT FOR SALE BY A LICENSED VETERINARIAN. 25. The accompanying affidavit of Marc Jacobs identifies 12 puppies from the Hicksville Store and 11 puppies from the Lynbrook Store for which refundable deposits have been taken from customers anxious to complete the adoption of their puppies and bring them home. 7 7 of 12 FILED: NASSAU COUNTY CLERK 04/19/2022 03:12 PM INDEX NO. 615766/2021 NYSCEF DOC. NO. 294 RECEIVED NYSCEF: 04/19/2022 26. Also attached to the Jacobs Affidavit are health certificates issued by licensed veterinarian, Dr. Andy Rose, D.V.M., for each of these 23 puppies that certifies to their health and fitness for sale. SHAKE A PAW SHOULD BE ALLOWED TO SELL PUPPIES BASED ON THE HEALTH CERTIFICATIONS OF ITS REGULAR LICENSED VETERINARIAN. 27. NYAG Has had 12 days to comply with this Court’s April 7 Order. In that period, Shake A Paw has met, within its power, every condition set by the Court for the resumption of live animal sales. There are now 23 healthy puppies for which refundable deposits have been taken, and more deposits can be expected within the coming week. There is no reason to hold up the sale of these puppies and not allow them to be taken home, or to delay so long that their adoptive future owners ask for the refunds of their deposits. A duly licensed veterinarian, Andy Rose, D.V.M., has certified their health status, as required by law, and that certification is entirely consistent with the certifications provided by the independent veterinarian appointed by the Court who approved 214 of 220 puppies examined – 97.2%. 28. Not allowing these puppies to go home plays into the hands of the NYAG who, from the beginning, has been intent on shutting down the Shake A Paw business without a hearing. Having now heard both sides, this Court, in its April 7 Order has found many questions of fact to exist and has set the matter down for a hearing on May 4, 2022. The modification of the December 17 TRO was for the purpose of allowing Respondents to resume the sale of puppies during the pendency of the hearing in order 8 8 of 12 FILED: NASSAU COUNTY CLERK 04/19/2022 03:12 PM INDEX NO. 615766/2021 NYSCEF DOC. NO. 294 RECEIVED NYSCEF: 04/19/2022 to stay alive as a viable business, but the NYAG is deliberately thwarting the Court’s April 7 Order. THE TRO SHOULD BE GRANTED 29. The relief sought in Respondents’ Order to Show Cause is to allow Shake A Paw to sell puppies based on the health certifications issued by a New York State licensed veterinarian, not a particular veterinarian approved by NYAG. The relief sought in the TRO – immediate relief – is to approve 23 specific puppy sales on which deposits have been taken based on the health certifications of Shake A Paw’s regular veterinarian, Dr. Andy Rose, D.V.M., and any other puppies so certified by Dr. Rose on which deposits may be taken before the motion is decided. 30. This immediate TRO relief is required in order to allow the puppies and their adoptive families to be together. From a business perspective, it also allows Shake A Paw to secure revenue to stay in business, pay its employees and vendors, pay the rent and utilities, etc., as the customers are otherwise free to request the return of their refundable deposits and cancel the transaction unless and until Court-approved health certifications are obtained. STANDARD FOR MODIFYING THE TEMPORARY RESTRAINING ORDER 31. CPLR § 6314 authorizes this Court, on a motion by a respondent enjoined by a temporary restraining order, to vacate or modify the order. Such motions are addressed to the sound discretion of the court (see, e.g., Rosemont Enterprises, Inc. v. Irving, 49 A.D.2d 445 (1st Dept. 1975), and “it is appropriate for the court to consider the 9 9 of 12 FILED: NASSAU COUNTY CLERK 04/19/2022 03:12 PM INDEX NO. 615766/2021 NYSCEF DOC. NO. 294 RECEIVED NYSCEF: 04/19/2022 circumstances as they exist at the time the motion under CPLR 6314 is made, and to consider changed circumstances” (13 Weinstein-Korn-Miller ¶6314.01(7), at p. 63-216). 32. Courts do not hesitate to modify and remove injunctions and restraining orders that effectively require a defendant to “cease business” while an underlying dispute is being adjudicated, and that subject a defendant to “great inconvenience and loss.” See, e.g., Interfaith Medical Center v. Shahzad, 124 A.D.2d 557, 559 (2d Dept. 1986) (emphasis added) (“because the freeze on the [] bank accounts, in effect, required that the defendant cease business, the burden to the defendant through the imposition of that provision of the preliminary injunction is more burdensome than the harm to the plaintiff. Therefore, we have modified the preliminary injunction by removing only that provision which froze the bank accounts”); State v. Francis, 95 Misc.2d 381, 385 (Sup. Ct. NY Cnty. 1978) (emphasis added) (rejecting the Attorney General’s request for injunctive relief that “would in all likelihood put the defendants out of business and grant the plaintiff all the relief sought in the underlying complaint”); Forstmann v. Joray Holding Co., 244 N.Y. 22, 29-30 (1926) (“[a]n injunction will be withheld as oppressive when it appears that the injury is not serious or substantial, and that to restrain the acts complained of would subject the other party to great inconvenience and loss”); Fanning v. Grosfent, 58 A.D.2d 366, 367 (3rd Dept. 1977) (same). MISCELANEOUS 33. No request for this or similar relief has been made to this or any other Court. 10 10 of 12 FILED: NASSAU COUNTY CLERK 04/19/2022 03:12 PM INDEX NO. 615766/2021 NYSCEF DOC. NO. 294 RECEIVED NYSCEF: 04/19/2022 34. Petitioner will be emailed copies of the Order to Show Cause and the papers on which it is based simultaneously with the NYSCEF filing of the motion. Dated: Melville, New York April 19, 2022 /S/ Richard Hamburger RICHARD HAMBURGER 11 11 of 12 FILED: NASSAU COUNTY CLERK 04/19/2022 03:12 PM INDEX NO. 615766/2021 NYSCEF DOC. NO. 294 RECEIVED NYSCEF: 04/19/2022 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 2,504 words. The typeface (font) is New Baskerville. The point size is 12. The line spacing is double. Dated: Melville, New York April 19, 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 12 12 of 12