Preview
FILED: ALBANY COUNTY CLERK 08/14/2023 06:32 PM INDEX NO. 907282-23
NYSCEF DOC. NO. 87 RECEIVED NYSCEF: 08/14/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF ALBANY
CARMINE FIORE, WILLIAM NORGARD, STEVE
MEJIA, and DOMINIC SPACCIO,
Plaintiffs,
ATTORNEY
- against -
AFFIRMATION IN
SUPPORT OF
NEW YORK STATE CANNABIS CONTROL BOARD,
ORDER TO SHOW
NEW YORK STATE OFFICE OF CANNABIS
CAUSE
MANAGEMENT, TREMAINE WRIGHT, in her official
capacity as the Chairwoman of the New York State
Index No.: 907282-23
Cannabis Control Board, and CHRIS ALEXANDER, in
his official capacity as Executive Director of the New
York State Office of Cannabis Management,
Defendants.
I, WEI HU, an attorney duly admitted to practice before the Courts of the State of New
York, affirm the following statements to be true under the penalties of perjury:
1. I am of Counsel to the proposed Intervenors listed below, familiar with the facts
stated herein, and submit this Affirmation in Support of Order to Show Cause for Intervention
pursuant to CPLR 1012, 1013:
a. RONALD SHEN, as CEO and Majority Equity Owner of R&R Remedies LLC (OCM
CAURD # 2022-089 Provisional Licensee in Brooklyn Region);
b. ALESSANDRO COTTONE, as CEO and Majority Owner of Gourmet Budz LLC (OCM
CAURD # 2022-146 Provisional Licensee in Long Island Region);
c. JEREMY RIVERA, as CEO and Majority Owner of Kush Culture Industry LLC (d/b/a Terp
Bros) (OCM CAURD # 2022-173 Provisional Licensee in Queens Region);
d. HARRY BOONE, as CEO and Majority Owner of Athenian Royalty Group LLC (OCM
CAURD # 2022-218 Provisional Licensee in Queens Region);
e. DOMINICK CUFFARO, as COO and Majority Owner of WhiteboxTHC LLC (OCM
CAURD # 2022-224 Provisional Licensee in Manhattan Region);
f. MARK GORCZYCA, as CEO and Minority Owner of NSEW Trading Company LLC
(OCM CAURD # 2022-324 Provisional Licensee in Capital Region)
g. HOWARD LIBRON, as CEO and Majority Owner of Orange County Cannabis LLC (OCM
CAURD # 2022-369 Provisional Licensee in Mid-Hudson Region);
h. DENIZ ORKURT, as CEO and Majority Owner of Cannabis Emporium Corp. (d/b/a Hush
Cannabis & Confections) (OCM CAURD # 2022-897 Provisional Licensee in The Bronx
Region); (collectively, Provisional Licensees).
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FILED: ALBANY COUNTY CLERK 08/14/2023 06:32 PM INDEX NO. 907282-23
NYSCEF DOC. NO. 87 RECEIVED NYSCEF: 08/14/2023
2. Provisional Licensees seek emergency intervention to redress the unique and
irreparable harm that the Temporary Restraining Order (TRO), enjoining Defendants from
conferring operational approval upon any more provisional or existing CAURD licensees, imposes
and they seek corresponding relief therefrom. This application is made by Order to Show Cause
because time is of the essence as the next hearing date is August 25, 2023.
3. Respectfully, Plaintiffs will be unable to demonstrate that Defendants acted
“arbitrarily or capriciously” or without rational basis in promulgating and administering 9 NYCRR
Part 116 (CAURD Program) – the standard of review required to establish that Defendants violated
the rulemaking powers the Legislature delegated to them.
4. Provisional Licensees have a direct and substantial interest in the outcome of this
instant action, which challenges Defendant’s administration of the Adult-Use industry and creation
of a separate and distinct “conditional” (CAURD) licensing program to meet the Marijuana
Regulation and Taxation Act’s (MRTA) legislative mandate to redress the historic assault on
communities of color and instill reparative justice into New York’s cannabis laws.
5. Respectfully, Provisional Licensees’ interests are inadequately represented by
existing parties to this action, as the TRO against Defendant from issuing operational approval to
Provisional licensees, especially those who already secured real property and/or “Site Protection”
from OCM, causes them, not Defendant, irreparable harm; additionally, this TRO causes far
greater harm to Provisional Licensees than the lack of interim relief to Plaintiffs.
6. Lastly, Provisional Licensees can better address the adverse public impact from the
TRO, as a suspension of the licensing process only further encourages the illicit cannabis market
to thrive in their very communities, and prohibits public authorities from much needed public tax
funds to support social justice and economic equity initiatives designed for them.
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FILED: ALBANY COUNTY CLERK 08/14/2023 06:32 PM INDEX NO. 907282-23
NYSCEF DOC. NO. 87 RECEIVED NYSCEF: 08/14/2023
7. These intervenors will not unduly delay or prejudice the adjudication of rights of
the original parties, as this matter is in its initial stage, and the interests of judicial economy favor
intervention over a separate plenary action for relief.
8. As Provisional Licensees must privately advocate to protect its licensure rights
under Defendant’s CAURD program, and address the TRO’s particular irreparable harm to them,
they seek intervention into this matter to address: (1) the absence of irreparable harm to Plaintiffs;
(2) balancing of equities militates against preliminary injunctive relief, as the TRO harms the
Provisional Licensees far more than the lack of one for Plaintiffs; and, (3) the public interest is not
served by suspending the development of a regulated and safe Adult-Use cannabis industry.
9. Provisional Licensees defer to Defendants’ counsel in addressing the fourth and
final element required for preliminary injunctive relief: likelihood of success of the merits of
Plaintiffs’ action, as Defendants maintain Chevron agency deference in interpretating the MRTA,
NY Cannabis Law, and other laws conferring agency substantial deference over both delegation
and rulemaking statutes. Defendants can better articulate their agency powers and how the
Legislature granted these administrative bodies great deference in interpreting NY Cannabis Law
for its administration of the Adult-Use industry. Also, how their statutory interpretation over their
own administrative powers and duties enabled them to create a valid and separate regulatory
licensure process independent of NY Cannabis Law 10(19).
10. In the alternative, in event this Court maintains the TRO, Provisional Licensees
respectfully request Plaintiffs post a reasonable undertaking (TRO security bond) during the
pendency of this TRO pursuant to CPLR 6312(b), 6313(c) to compensate Provisional Licensees
should Plaintiffs not ultimately prevail.
11. All parties to this action will be noticed by NYSCEF electronic notification.
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FILED: ALBANY COUNTY CLERK 08/14/2023 06:32 PM INDEX NO. 907282-23
NYSCEF DOC. NO. 87 RECEIVED NYSCEF: 08/14/2023
12. No prior application for relief requested herein has been made.
WHEREFORE, Provisional Licensees respectfully requests this Court grant the Order to
Show Cause in its entirety, and grant such other and further relief as this Court deems just and
proper.
Dated: ULSTER, New York MRTA Law, P.C.
August 14, 2023 By: _/s/ Wei Hu________________
WEI HU, of Counsel
Attorney for Provisional Licensees
MRTA Law, P.C.
788 Upper Mountain Road
Shawangunk, NY 12566
Telephone: (646) 263-7890
Email:
C:
CLARK SMITH VILLAZOR LLP
Christopher J. Clark (via NYSCEF)
Patrick J. Smith (via NYSCEF)
Brian T. Burns (via NYSCEF)
Selbie L. Jason (via NYSCEF)
NEW YORK STATE ATTORNEY GENERAL’S OFFICE
Shannan Krasnokutski (via NYSCEF)
CAURD INTERVENORS
Jorge L. Vasquez (via NYSCEF)
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Preview
FILED: ALBANY COUNTY CLERK 08/14/2023 06:32 PM INDEX NO. 907282-23 NYSCEF DOC. NO. 87 RECEIVED NYSCEF: 08/14/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ALBANY CARMINE FIORE, WILLIAM NORGARD, STEVE MEJIA, and DOMINIC SPACCIO, Plaintiffs, ATTORNEY - against - AFFIRMATION IN SUPPORT OF NEW YORK STATE CANNABIS CONTROL BOARD, ORDER TO SHOW NEW YORK STATE OFFICE OF CANNABIS CAUSE MANAGEMENT, TREMAINE WRIGHT, in her official capacity as the Chairwoman of the New York State Index No.: 907282-23 Cannabis Control Board, and CHRIS ALEXANDER, in his official capacity as Executive Director of the New York State Office of Cannabis Management, Defendants. I, WEI HU, an attorney duly admitted to practice before the Courts of the State of New York, affirm the following statements to be true under the penalties of perjury: 1. I am of Counsel to the proposed Intervenors listed below, familiar with the facts stated herein, and submit this Affirmation in Support of Order to Show Cause for Intervention pursuant to CPLR 1012, 1013: a. RONALD SHEN, as CEO and Majority Equity Owner of R&R Remedies LLC (OCM CAURD # 2022-089 Provisional Licensee in Brooklyn Region); b. ALESSANDRO COTTONE, as CEO and Majority Owner of Gourmet Budz LLC (OCM CAURD # 2022-146 Provisional Licensee in Long Island Region); c. JEREMY RIVERA, as CEO and Majority Owner of Kush Culture Industry LLC (d/b/a Terp Bros) (OCM CAURD # 2022-173 Provisional Licensee in Queens Region); d. HARRY BOONE, as CEO and Majority Owner of Athenian Royalty Group LLC (OCM CAURD # 2022-218 Provisional Licensee in Queens Region); e. DOMINICK CUFFARO, as COO and Majority Owner of WhiteboxTHC LLC (OCM CAURD # 2022-224 Provisional Licensee in Manhattan Region); f. MARK GORCZYCA, as CEO and Minority Owner of NSEW Trading Company LLC (OCM CAURD # 2022-324 Provisional Licensee in Capital Region) g. HOWARD LIBRON, as CEO and Majority Owner of Orange County Cannabis LLC (OCM CAURD # 2022-369 Provisional Licensee in Mid-Hudson Region); h. DENIZ ORKURT, as CEO and Majority Owner of Cannabis Emporium Corp. (d/b/a Hush Cannabis & Confections) (OCM CAURD # 2022-897 Provisional Licensee in The Bronx Region); (collectively, Provisional Licensees). 1 1 of 4 FILED: ALBANY COUNTY CLERK 08/14/2023 06:32 PM INDEX NO. 907282-23 NYSCEF DOC. NO. 87 RECEIVED NYSCEF: 08/14/2023 2. Provisional Licensees seek emergency intervention to redress the unique and irreparable harm that the Temporary Restraining Order (TRO), enjoining Defendants from conferring operational approval upon any more provisional or existing CAURD licensees, imposes and they seek corresponding relief therefrom. This application is made by Order to Show Cause because time is of the essence as the next hearing date is August 25, 2023. 3. Respectfully, Plaintiffs will be unable to demonstrate that Defendants acted “arbitrarily or capriciously” or without rational basis in promulgating and administering 9 NYCRR Part 116 (CAURD Program) – the standard of review required to establish that Defendants violated the rulemaking powers the Legislature delegated to them. 4. Provisional Licensees have a direct and substantial interest in the outcome of this instant action, which challenges Defendant’s administration of the Adult-Use industry and creation of a separate and distinct “conditional” (CAURD) licensing program to meet the Marijuana Regulation and Taxation Act’s (MRTA) legislative mandate to redress the historic assault on communities of color and instill reparative justice into New York’s cannabis laws. 5. Respectfully, Provisional Licensees’ interests are inadequately represented by existing parties to this action, as the TRO against Defendant from issuing operational approval to Provisional licensees, especially those who already secured real property and/or “Site Protection” from OCM, causes them, not Defendant, irreparable harm; additionally, this TRO causes far greater harm to Provisional Licensees than the lack of interim relief to Plaintiffs. 6. Lastly, Provisional Licensees can better address the adverse public impact from the TRO, as a suspension of the licensing process only further encourages the illicit cannabis market to thrive in their very communities, and prohibits public authorities from much needed public tax funds to support social justice and economic equity initiatives designed for them. 2 2 of 4 FILED: ALBANY COUNTY CLERK 08/14/2023 06:32 PM INDEX NO. 907282-23 NYSCEF DOC. NO. 87 RECEIVED NYSCEF: 08/14/2023 7. These intervenors will not unduly delay or prejudice the adjudication of rights of the original parties, as this matter is in its initial stage, and the interests of judicial economy favor intervention over a separate plenary action for relief. 8. As Provisional Licensees must privately advocate to protect its licensure rights under Defendant’s CAURD program, and address the TRO’s particular irreparable harm to them, they seek intervention into this matter to address: (1) the absence of irreparable harm to Plaintiffs; (2) balancing of equities militates against preliminary injunctive relief, as the TRO harms the Provisional Licensees far more than the lack of one for Plaintiffs; and, (3) the public interest is not served by suspending the development of a regulated and safe Adult-Use cannabis industry. 9. Provisional Licensees defer to Defendants’ counsel in addressing the fourth and final element required for preliminary injunctive relief: likelihood of success of the merits of Plaintiffs’ action, as Defendants maintain Chevron agency deference in interpretating the MRTA, NY Cannabis Law, and other laws conferring agency substantial deference over both delegation and rulemaking statutes. Defendants can better articulate their agency powers and how the Legislature granted these administrative bodies great deference in interpreting NY Cannabis Law for its administration of the Adult-Use industry. Also, how their statutory interpretation over their own administrative powers and duties enabled them to create a valid and separate regulatory licensure process independent of NY Cannabis Law 10(19). 10. In the alternative, in event this Court maintains the TRO, Provisional Licensees respectfully request Plaintiffs post a reasonable undertaking (TRO security bond) during the pendency of this TRO pursuant to CPLR 6312(b), 6313(c) to compensate Provisional Licensees should Plaintiffs not ultimately prevail. 11. All parties to this action will be noticed by NYSCEF electronic notification. 3 3 of 4 FILED: ALBANY COUNTY CLERK 08/14/2023 06:32 PM INDEX NO. 907282-23 NYSCEF DOC. NO. 87 RECEIVED NYSCEF: 08/14/2023 12. No prior application for relief requested herein has been made. WHEREFORE, Provisional Licensees respectfully requests this Court grant the Order to Show Cause in its entirety, and grant such other and further relief as this Court deems just and proper. Dated: ULSTER, New York MRTA Law, P.C. August 14, 2023 By: _/s/ Wei Hu________________ WEI HU, of Counsel Attorney for Provisional Licensees MRTA Law, P.C. 788 Upper Mountain Road Shawangunk, NY 12566 Telephone: (646) 263-7890 Email: C: CLARK SMITH VILLAZOR LLP Christopher J. Clark (via NYSCEF) Patrick J. Smith (via NYSCEF) Brian T. Burns (via NYSCEF) Selbie L. Jason (via NYSCEF) NEW YORK STATE ATTORNEY GENERAL’S OFFICE Shannan Krasnokutski (via NYSCEF) CAURD INTERVENORS Jorge L. Vasquez (via NYSCEF) 4 4 of 4