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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
----------------------------------------------------------- X
CRESCO LABS NEW YORK, LLC, a New :
York limited liability company, and CRESCO : Index No. 652343/2018
LABS LLC, an Illinois limited liability :
company, : Hon. Andrew Borrok
:
Plaintiffs/Counterclaim Defendants, :
: NOTICE OF SETTLEMENT OF
v. : PROPOSED ORDER AND
: JUDGMENT
FIORELLO PHARMACEUTICALS, INC., a :
New York corporation, :
:
Defendant/Counterclaimant. :
:
----------------------------------------------------------- X
PLEASE TAKE NOTICE that the within is a true copy of a Proposed Judgment of the
Honorable Andrew Borrok, Justice of the Supreme Court of the State of New York, New York
County, which will be presented for settlement at the within named Court located at 60 Centre
Street, New York, New York on January 12, 2023 at 9:30 a.m., or as soon thereafter as this Court
may direct.
Dated: December 21, 2022
New York, New York
/s Stephen L. Ascher _
Stephen L. Ascher
JENNER & BLOCK LLP
1155 Avenue of the Americas
New York, NY 10036
212-891-1670
sascher@jenner.com
Counsel for Plaintiffs
Cresco Labs New York, LLC and Cresco
Labs, LLC
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TO: Rachel Izower-Fadde
Ronald Lefton
Dennis Villasana
Arielle Kane
Izower Lefton, LLP
1325 Franklin Ave, Ste 255
Garden City, NY 11530
516-231-2260
rizower@izowerlefton.com
leftonr@izowerlefton.com
dvillasana@izowerlefton.com
akane@izowerlefton.com
Attorneys for Defendant Fiorello Pharmaceuticals, Inc.
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
----------------------------------------------------------- X
CRESCO LABS NEW YORK, LLC, a New :
York limited liability company, and CRESCO : Index No. 652343/2018
LABS LLC, an Illinois limited liability :
company, : Hon. Andrew Borrok
:
Plaintiffs/Counterclaim Defendants, :
: ORDER AND JUDGMENT
v. :
: Motion Sequence No. 11
FIORELLO PHARMACEUTICALS, INC., a :
New York corporation, :
:
Defendant/Counterclaimant. :
:
----------------------------------------------------------- X
Defendant Fiorello Pharmaceuticals, Inc. (“Defendant”), having moved for an order
pursuant to CPLR 3212 granting it summary judgment (Mot. Seq. No. 11) against Plaintiffs
Cresco Labs New York, LLC and Cresco Labs, LLC (“Plaintiffs”) on the issue of liability, or in
the alternative, to limit Plaintiffs’ damages as a matter of law, and said motion having regularly
come on to be heard,
NOW, upon reading and filing the Notice of Motion dated July 2, 2021, the Affirmation
of Rachel Izower-Fadde in Support of Summary Judgment dated July 2, 2021, and the exhibits
thereto, the Affirmation of Eric Sirota in Support of Fiorello’s Motion for Summary Judgment,
dated June 29, 2021, and the exhibits thereto, the Affirmation of Jerome T. Levy, dated June 18,
2021, and the exhibits thereto, the Affirmation of Jonathan Canarick, dated June 21, 2021, and
the exhibits thereto, the Memorandum of Law in Support of Defendant’s Motion for Summary
Judgment or, in the Alternative, to Limit Plaintiff’s Damages as a Matter of Law, dated July 2,
2021, the Affirmation of Jason P. Hipp in Opposition to Defendant’s Motion for Summary
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Judgment, dated September 24, 2021, and the exhibits thereto, the Affidavit of Charles Bachtell
dated September 24, 2021, and the exhibits thereto, the Affidavit of Andrew Scott Davidson
dated September 24, 2021, and the exhibits thereto, Plaintiffs’ Memorandum of Law in
Opposition to Defendant’s Motion for Summary Judgment, dated September 24, 2021,
Affirmation of Ronald D. Lefton in Further Support of Defendant’s Motion for Summary
Judgment dated December 20, 2021 and exhibits thereto, the Affidavit of Douglas S. Land dated
December 20, 2021 and exhibits thereto, the Reply Memorandum of Law in Further Support of
Defendant’s Motion for Summary Judgment dated December 20, 2021, the Supplemental
Affirmation of Dennis Villasana attaching documents previously incorporated by reference dated
January 10, 2022 and exhibits thereto, the Affidavit of Gilbert E. Matthews, CFA dated February
22, 2022, and the exhibits thereto, the Supplemental Affirmation of Jason P. Hipp attaching
documents previously incorporated by reference dated January 10, 2022 and exhibits thereto, the
Affirmation of Jason P. Hipp in Opposition to Defendant’s Motion for Summary Judgment dated
May 6, 2022, and the exhibits thereto, Plaintiffs’ Memorandum of Law in Opposition to
Defendant’s Motion for Summary Judgment, dated May 6, 2022, the Affirmation in Further
Support of Defendants’ Motion for Summary Judgment dated May 20, 2022, and the exhibits
thereto, the Reply Memorandum of Law in Further Support of Defendant’s Motion for Summary
Judgment dated May 20, 2022, the Court’s Decision and Order on Motion to Dismiss dated May
16, 2019, the Court’s Amended Decision and Order on Motion to Dismiss dated October 15,
2019, and after due deliberation having been held thereon,
NOW, pursuant to CPLR 3212(b), and in conformity with the Court’s December 2, 2022
Decision and Order and Supplemental Decision and Order dated December 5, 2022, it is hereby
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ORDERED that Plaintiffs are granted summary judgment on their claim for breach of
contract for Defendant’s breach of the LOI, including its no-shop and confidentiality provisions;
and it is
ADJUDGED that Defendant’s breach of the LOI caused damages to Plaintiffs in the
amount of the difference between the total consideration Plaintiffs provided to acquire Valley
Agriceuticals, LLC and the total consideration Green Thumb Industries, Inc. provided to acquire
Defendant, with a credit in the amount of the unreturned Good Faith Payment, which total
amount shall be determined in a supplemental motion for summary judgment, or else at trial.
_________________________
Hon. Andrew Borrok, J. S. C.
__________________________
Clerk of the Court
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Preview
SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ----------------------------------------------------------- X CRESCO LABS NEW YORK, LLC, a New : York limited liability company, and CRESCO : Index No. 652343/2018 LABS LLC, an Illinois limited liability : company, : Hon. Andrew Borrok : Plaintiffs/Counterclaim Defendants, : : NOTICE OF SETTLEMENT OF v. : PROPOSED ORDER AND : JUDGMENT FIORELLO PHARMACEUTICALS, INC., a : New York corporation, : : Defendant/Counterclaimant. : : ----------------------------------------------------------- X PLEASE TAKE NOTICE that the within is a true copy of a Proposed Judgment of the Honorable Andrew Borrok, Justice of the Supreme Court of the State of New York, New York County, which will be presented for settlement at the within named Court located at 60 Centre Street, New York, New York on January 12, 2023 at 9:30 a.m., or as soon thereafter as this Court may direct. Dated: December 21, 2022 New York, New York /s Stephen L. Ascher _ Stephen L. Ascher JENNER & BLOCK LLP 1155 Avenue of the Americas New York, NY 10036 212-891-1670 sascher@jenner.com Counsel for Plaintiffs Cresco Labs New York, LLC and Cresco Labs, LLC 1 TO: Rachel Izower-Fadde Ronald Lefton Dennis Villasana Arielle Kane Izower Lefton, LLP 1325 Franklin Ave, Ste 255 Garden City, NY 11530 516-231-2260 rizower@izowerlefton.com leftonr@izowerlefton.com dvillasana@izowerlefton.com akane@izowerlefton.com Attorneys for Defendant Fiorello Pharmaceuticals, Inc. 2 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ----------------------------------------------------------- X CRESCO LABS NEW YORK, LLC, a New : York limited liability company, and CRESCO : Index No. 652343/2018 LABS LLC, an Illinois limited liability : company, : Hon. Andrew Borrok : Plaintiffs/Counterclaim Defendants, : : ORDER AND JUDGMENT v. : : Motion Sequence No. 11 FIORELLO PHARMACEUTICALS, INC., a : New York corporation, : : Defendant/Counterclaimant. : : ----------------------------------------------------------- X Defendant Fiorello Pharmaceuticals, Inc. (“Defendant”), having moved for an order pursuant to CPLR 3212 granting it summary judgment (Mot. Seq. No. 11) against Plaintiffs Cresco Labs New York, LLC and Cresco Labs, LLC (“Plaintiffs”) on the issue of liability, or in the alternative, to limit Plaintiffs’ damages as a matter of law, and said motion having regularly come on to be heard, NOW, upon reading and filing the Notice of Motion dated July 2, 2021, the Affirmation of Rachel Izower-Fadde in Support of Summary Judgment dated July 2, 2021, and the exhibits thereto, the Affirmation of Eric Sirota in Support of Fiorello’s Motion for Summary Judgment, dated June 29, 2021, and the exhibits thereto, the Affirmation of Jerome T. Levy, dated June 18, 2021, and the exhibits thereto, the Affirmation of Jonathan Canarick, dated June 21, 2021, and the exhibits thereto, the Memorandum of Law in Support of Defendant’s Motion for Summary Judgment or, in the Alternative, to Limit Plaintiff’s Damages as a Matter of Law, dated July 2, 2021, the Affirmation of Jason P. Hipp in Opposition to Defendant’s Motion for Summary 1 Judgment, dated September 24, 2021, and the exhibits thereto, the Affidavit of Charles Bachtell dated September 24, 2021, and the exhibits thereto, the Affidavit of Andrew Scott Davidson dated September 24, 2021, and the exhibits thereto, Plaintiffs’ Memorandum of Law in Opposition to Defendant’s Motion for Summary Judgment, dated September 24, 2021, Affirmation of Ronald D. Lefton in Further Support of Defendant’s Motion for Summary Judgment dated December 20, 2021 and exhibits thereto, the Affidavit of Douglas S. Land dated December 20, 2021 and exhibits thereto, the Reply Memorandum of Law in Further Support of Defendant’s Motion for Summary Judgment dated December 20, 2021, the Supplemental Affirmation of Dennis Villasana attaching documents previously incorporated by reference dated January 10, 2022 and exhibits thereto, the Affidavit of Gilbert E. Matthews, CFA dated February 22, 2022, and the exhibits thereto, the Supplemental Affirmation of Jason P. Hipp attaching documents previously incorporated by reference dated January 10, 2022 and exhibits thereto, the Affirmation of Jason P. Hipp in Opposition to Defendant’s Motion for Summary Judgment dated May 6, 2022, and the exhibits thereto, Plaintiffs’ Memorandum of Law in Opposition to Defendant’s Motion for Summary Judgment, dated May 6, 2022, the Affirmation in Further Support of Defendants’ Motion for Summary Judgment dated May 20, 2022, and the exhibits thereto, the Reply Memorandum of Law in Further Support of Defendant’s Motion for Summary Judgment dated May 20, 2022, the Court’s Decision and Order on Motion to Dismiss dated May 16, 2019, the Court’s Amended Decision and Order on Motion to Dismiss dated October 15, 2019, and after due deliberation having been held thereon, NOW, pursuant to CPLR 3212(b), and in conformity with the Court’s December 2, 2022 Decision and Order and Supplemental Decision and Order dated December 5, 2022, it is hereby 2 ORDERED that Plaintiffs are granted summary judgment on their claim for breach of contract for Defendant’s breach of the LOI, including its no-shop and confidentiality provisions; and it is ADJUDGED that Defendant’s breach of the LOI caused damages to Plaintiffs in the amount of the difference between the total consideration Plaintiffs provided to acquire Valley Agriceuticals, LLC and the total consideration Green Thumb Industries, Inc. provided to acquire Defendant, with a credit in the amount of the unreturned Good Faith Payment, which total amount shall be determined in a supplemental motion for summary judgment, or else at trial. _________________________ Hon. Andrew Borrok, J. S. C. __________________________ Clerk of the Court 3