Preview
FILED: ALBANY COUNTY CLERK 03/05/2018 12:55 PM INDEX NO. 905688-17
NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 03/05/2018
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF ALBANY
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RICHARD A. BALL, as Commissioner of
Agriculture and Markets of the State of New York AFFIRMATION OF MERIT
IN SUPPORT OF MOTION FOR
Plaintiff DEFAULT JUDGMENT
-against-
Index No. 905688-17
DOLLAR EXPRESS STORES LLC
d/b/a Dollar Express
528 Jackson Avenue
Bronx, New York 10455
Defendant.
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Frederick Brian Arnold, an attorney admitted to practice in the courts of the State
of New York affirms under penalty of perjury that:
1. I am of counsel to Scott H. Wyner, Esq., Counsel of the New York State
(" Department"
Department of Agriculture and Markets ("Department") and attorney for the plaintiff in this
action. I make the affirmation in support of the plaintiff's application for a default judgment
pursuant to CPLR section 3215(f) based upon my review of Department's records. These
records are prepared by the Department's food inspectors in the regular course of their
business.¹
duties and maintained by the Department in the regular course of its
2. This action was commenced to recover unpaid penalties imposed upon
defendant for the operation of a retail food store and food processing establishment in
violation of the provisions of the Agriculture and Markets Law ("A&ML") and/or Title One
of the Official Compilation of Codes, Rules and Regulations of the State of New York
("1NYCRR") set forth below.
1 A&ML section the General an action brought recover
Pursuant to 44, Attorney may cause to be to penalties
assessed for violationof theA&ML and/or 1NYCRR. The Attorney General has authorized the Department to
commence such actions(See letterfrom Mr. John W. Corwin, AssistantAttorney General, to Ms. Joan A. Kehoe,
Dep t Counsel, dated February 28, 1992; a truecopy of which isattached as Exhibit A.)
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FILED: ALBANY COUNTY CLERK 03/05/2018 12:55 PM INDEX NO. 905688-17
NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 03/05/2018
3. The A&ML and 1NYCRR require food to be processed only by those
licensed by the Department and that the processed food is safe for human consumption.
Specifically:
A&ML section 251-z-3 requires those who process food to hold a license
issued by the Commissioner;
food" --
A&ML section 199-a(1) prohibits the sale of "adulterated food
that is unwholesome, injurious to health or held under insanitary
conditions [see A&ML section 200(4)]); and
1NYCRR Parts 261, 271 and 276 establish sanitation requirements for retail
food stores and food processing establishments
4. The Department's food inspectors conduct inspections of retail food stores,
their operations and food prepared at the establishments; and contemporaneously
prepare Sanitary Inspection Reports ("SIR") setting forth each condition observed at the
premises that is in violation of the A&ML and its regulations.
5. Based upon the records of the Department, defendant operates a retail
food store, and/or a food processing establishment, and/or a food warehouse at 528
Jackson Avenue, Bronx, New York, where defendant manufactures, and/or processes,
Establishment"
and/or offers for sale food ("the Establishment").
6. On March 9, 2016, May 23, 2016, and August 15, 2016, a Department food
inspector conducted inspections of the Establishment and, at the time of each visit,
prepared an SIR that set forth conditions that demonstrated defendant's operation in
violation of A&M sections 199-a and/or 251-z-3, and/or 1NYCRR Parts 261, 271 and 276.
7. Pursuant to and as authorized by A&ML sections 39 and/or 40, penalties
of $600.00, $1,200.00, and $1,200.00, respectively, were imposed upon the defendant
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FILED: ALBANY COUNTY CLERK 03/05/2018 12:55 PM INDEX NO. 905688-17
NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 03/05/2018
for operating the establishment in violation of those provisions of the A&ML and/or
1NYCRR on those dates of the inspections referred to in Paragraph 6, above.
8. As of February 28, 2018, these assessed penalties have not been paid.
WHEREFORE, I respectfully request that a default judgment in the amount of
$3,000.00 be given to plaintiff-Commissioner, pursuant to CPLR section 3215, together
with allowable costs and disbursements.
Frederick Brian Arnold Esq.
Dated: February 28, 2018
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FILED: ALBANY COUNTY CLERK 03/05/2018 12:55 PM INDEX NO. 905688-17
NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 03/05/2018
SUPREME COURT OF THE STATE OF NEW YORK Index No.: 905688
COUNTY OF ALBANY Year: 2017
______________________________________________________________________
RICHARD A. BALL, as Commissioner of
Agriculture and Markets of the State of New York
Plaintiff
- against -
DOLLAR EXPRESS STORES LLC
d/b/a Dollar Express
528 Jackson Avenue
Bronx, New York 10455
Defendant.
______________________________________________________________________
ATTORNEY AFFIRMATION OF MERIT IN SUPPORT
SCOTT H. WYNER, ESQ.
Attorney for Plaintiff
Office and Post Office Address:
10B Airline Drive
Albany, New York 12235
Tel. No. (518) 457-1059
Frederick Brian Arnold, Esq., of Counsel
Tel. No. (518) 457-3593
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Preview
FILED: ALBANY COUNTY CLERK 03/05/2018 12:55 PM INDEX NO. 905688-17 NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 03/05/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ALBANY ------------------------------------------------------------------X RICHARD A. BALL, as Commissioner of Agriculture and Markets of the State of New York AFFIRMATION OF MERIT IN SUPPORT OF MOTION FOR Plaintiff DEFAULT JUDGMENT -against- Index No. 905688-17 DOLLAR EXPRESS STORES LLC d/b/a Dollar Express 528 Jackson Avenue Bronx, New York 10455 Defendant. ------------------------------------------------------------------X Frederick Brian Arnold, an attorney admitted to practice in the courts of the State of New York affirms under penalty of perjury that: 1. I am of counsel to Scott H. Wyner, Esq., Counsel of the New York State (" Department" Department of Agriculture and Markets ("Department") and attorney for the plaintiff in this action. I make the affirmation in support of the plaintiff's application for a default judgment pursuant to CPLR section 3215(f) based upon my review of Department's records. These records are prepared by the Department's food inspectors in the regular course of their business.¹ duties and maintained by the Department in the regular course of its 2. This action was commenced to recover unpaid penalties imposed upon defendant for the operation of a retail food store and food processing establishment in violation of the provisions of the Agriculture and Markets Law ("A&ML") and/or Title One of the Official Compilation of Codes, Rules and Regulations of the State of New York ("1NYCRR") set forth below. 1 A&ML section the General an action brought recover Pursuant to 44, Attorney may cause to be to penalties assessed for violationof theA&ML and/or 1NYCRR. The Attorney General has authorized the Department to commence such actions(See letterfrom Mr. John W. Corwin, AssistantAttorney General, to Ms. Joan A. Kehoe, Dep t Counsel, dated February 28, 1992; a truecopy of which isattached as Exhibit A.) 1 of 4 FILED: ALBANY COUNTY CLERK 03/05/2018 12:55 PM INDEX NO. 905688-17 NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 03/05/2018 3. The A&ML and 1NYCRR require food to be processed only by those licensed by the Department and that the processed food is safe for human consumption. Specifically: A&ML section 251-z-3 requires those who process food to hold a license issued by the Commissioner; food" -- A&ML section 199-a(1) prohibits the sale of "adulterated food that is unwholesome, injurious to health or held under insanitary conditions [see A&ML section 200(4)]); and 1NYCRR Parts 261, 271 and 276 establish sanitation requirements for retail food stores and food processing establishments 4. The Department's food inspectors conduct inspections of retail food stores, their operations and food prepared at the establishments; and contemporaneously prepare Sanitary Inspection Reports ("SIR") setting forth each condition observed at the premises that is in violation of the A&ML and its regulations. 5. Based upon the records of the Department, defendant operates a retail food store, and/or a food processing establishment, and/or a food warehouse at 528 Jackson Avenue, Bronx, New York, where defendant manufactures, and/or processes, Establishment" and/or offers for sale food ("the Establishment"). 6. On March 9, 2016, May 23, 2016, and August 15, 2016, a Department food inspector conducted inspections of the Establishment and, at the time of each visit, prepared an SIR that set forth conditions that demonstrated defendant's operation in violation of A&M sections 199-a and/or 251-z-3, and/or 1NYCRR Parts 261, 271 and 276. 7. Pursuant to and as authorized by A&ML sections 39 and/or 40, penalties of $600.00, $1,200.00, and $1,200.00, respectively, were imposed upon the defendant 2 of 4 FILED: ALBANY COUNTY CLERK 03/05/2018 12:55 PM INDEX NO. 905688-17 NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 03/05/2018 for operating the establishment in violation of those provisions of the A&ML and/or 1NYCRR on those dates of the inspections referred to in Paragraph 6, above. 8. As of February 28, 2018, these assessed penalties have not been paid. WHEREFORE, I respectfully request that a default judgment in the amount of $3,000.00 be given to plaintiff-Commissioner, pursuant to CPLR section 3215, together with allowable costs and disbursements. Frederick Brian Arnold Esq. Dated: February 28, 2018 3 of 4 FILED: ALBANY COUNTY CLERK 03/05/2018 12:55 PM INDEX NO. 905688-17 NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 03/05/2018 SUPREME COURT OF THE STATE OF NEW YORK Index No.: 905688 COUNTY OF ALBANY Year: 2017 ______________________________________________________________________ RICHARD A. BALL, as Commissioner of Agriculture and Markets of the State of New York Plaintiff - against - DOLLAR EXPRESS STORES LLC d/b/a Dollar Express 528 Jackson Avenue Bronx, New York 10455 Defendant. ______________________________________________________________________ ATTORNEY AFFIRMATION OF MERIT IN SUPPORT SCOTT H. WYNER, ESQ. Attorney for Plaintiff Office and Post Office Address: 10B Airline Drive Albany, New York 12235 Tel. No. (518) 457-1059 Frederick Brian Arnold, Esq., of Counsel Tel. No. (518) 457-3593 4 of 4