Letter,Correspondence: People Of The State Of New York, By Letitia James, Attorney General Of The State Of New York v. Abraham Operations Associates Llc Dba Beth Abraham Center For Rehabilitation And Nursing, Delaware Operations Associates Llc Dba Buffalo Center For Rehabilitation And Nursing, Hollis Operating Co Llc Dba Holliswood Center For Rehabilitation And Healthcare, Schnur Operations Associates Llc Dba Martine Center For Rehabilitation And Nursing, Light Property Holdings Associates Llc, Delaware Real Property Associates Llc, Hollis Real Estate Co Llc, Light Operational Holdings Associates Llc, Light Property Holdings Ii Associates Llc, Centers For Care Llc Dba Centers Health Care, Cfsc Downstate Llc, Bis Funding Capital Llc, Skilled Staffing Llc, Kenneth Rozenberg, Daryl Hagler, Beth Rozenberg, Jeffrey Sicklick, Leo Lerner, Reuven Kaufman, Amir Abramchik, David Greenberg, Elliot Kahan, Sol Blumenfeld, Aron Gittleson, Aharon Lantzitsky, Jonathan Hagler, Mordechai Moti Hellman

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August 10, 2023


VIA ELECTRONIC MAIL & NYSCEF
Justice Melissa Anne Crane
Attn: Joshua J.S. Kelly, Assistant Law Clerk
Supreme Court, New York County
60 Center Street
New York, NY 10007

Re:     People v. Abraham Operation Assocs. LLC, No. 451549/2023 (N.Y. Sup. Ct.)

Dear Justice Crane:

        We write on behalf of Respondents to seek the Court’s assistance in resolving a dispute
concerning the proposed scheduling order that was discussed with Mr. Kelly at the conference
held on August 3, 2023. Specifically, the parties do not agree on whether the scheduling order
should expressly provide for Respondents’ right to file an answer to the AG’s Petition, on the
merits, if their motions to dismiss are denied. 1 Respondents respectfully submit that clarity on
this point would aid the Court and the parties. The Attorney General has now taken the position
that Respondents do not have a right to file substantive answers if their motions to dismiss are
denied, and seeks to reserve the right to argue that no post-motion answers should be allowed.
Given that this dispute informs the nature of the submission due on November 13, 2023,
Respondents are compelled to raise this issue with the Court.

        By way of background, during the July 11, 2023 preliminary injunction hearing, the Court
directed the parties to prepare a stipulation to extend the deadlines to answer or move to dismiss
the Petition set forth in the June 30, 2023 Order to Show Cause. (July 11, 2023 Tr. at 68:6-12.)

        1
            Respondents’ proposed order (attached as Exhibit A) provides that: “If Respondents’
motion(s) to dismiss are not granted in their entirety, Respondents shall file answer(s), pursuant
to CPLR 404(a), within thirty (30) days of the date of the Court’s order denying Respondents’
motion(s) to dismiss.” By contrast, the AG’s proposed order provides that: “If Respondents’
motion to dismiss is not granted in its entirety, the Court may grant Respondents an opportunity
to file an answer, pursuant to CPLR 404(a), within thirty (30) days of the date of the Court’s order
denying Respondents’ motion(s) to dismiss.”


                                                            1
The Honorable Melissa A. Crane                                                      August 10, 2023
On July 12, 2023, Respondents provided the AG with a proposed stipulation that: (1) extended
Respondents’ deadline to answer or move to dismiss the Petition to November 13, 2023, (2) left a
placeholder for the AG to identify a date by which it would respond to the answer or motion to
dismiss, and (3) left a placeholder for an evidentiary hearing on a date to be set by the Court. (See
Exhibit B (Respondents’ July 12 draft stipulation).) When the AG provided its counterproposal
more than two weeks later on July 28, 2023, it proposed that Respondents would first file a
motion to dismiss in November and then file a substantive response to the Petition if the motion to
dismiss was denied. (See Exhibit C (AG’s July 28 draft stipulation).) On August 3, the AG
submitted its proposal to the Court. (Dkt. No. 759.)

        On August 3, 2023, the parties appeared for a remote conference with Mr. Kelly to discuss
the schedule. During that conference, Mr. Kelly asked Respondents if they expected to file a
motion to dismiss in November. Respondents confirmed that they intended to file a motion to
dismiss and proposed that a subsequent deadline be set by which Respondents would file a
substantive answer to the Petition. The AG did not object to the Respondents’ right to file a
substantive answer to the Petition in the event that the motion to dismiss was denied. As such, the
parties came to an agreement during the conference that Respondents would file a motion to
dismiss in November to be followed by a substantive answer to the AG’s allegations in the
Petition thereafter. Based on this discussion with the parties, Mr. Kelly directed the parties to
submit a revised stipulation that contemplated the following deadlines:

           Event                                               Date
           Respondents’ deadline to move to dismiss the        November 13, 2023
           Petition
           Petitioner’s deadline to respond to the motion to   January 19, 2024
           dismiss
           Oral argument on the motion to dismiss              On or about January 22,
                                                               2024
           Respondents’ deadline to file an answer to the      Within 30 days of the
           Petition, if the motion(s) to dismiss are not       Court’s motion to dismiss
           granted in their entirety                           order
           Petitioner’s deadline to re-notice the Petition2    Within 30 days of the filing
                                                               of Respondents’ answer
           Hearing on whether triable issues of fact have      On or about April 10, 2024
           been raised, warranting a trial
           Trial                                               To be set by the Court at a
                                                               later date



       2
            During the conference, the AG confirmed that it would provide a date by which it
intended to re-notice the Petition, pursuant to CPLR 404(a), following an answer by Respondents.
The AG has since advised Respondents that it does not intend to re-notice the Petition, but
instead, intends to file a reply in further support of the Petition, pursuant to CPLR 403(b) within
30 days of Respondents’ answer. Respondents do not object to this request by the AG.


                                                    2
The Honorable Melissa A. Crane                                                  August 10, 2023
        Consistent with the discussions at the August 3rd conference, Respondents prepared a
revised stipulation reflecting the schedule above. However, the AG now refuses to document
what was agreed to by the parties and accepted by the Court at the August 3 rd conference.
Instead, the AG claims that Respondents do not have a right to file answers if their motions to
dismiss are denied, and seeks to reserve the right to argue that no post-motion answers should be
allowed. (See Exhibit D (AG’s August 10, 2023 email).)3 This Court has previously recognized
that a detailed answer would sharpen the issues before the Court at any subsequent hearing and
will assist the Court in making an informed decision on the merits upon a “complete record.”
(July 11, 2023 Tr. at 35:12-17.) Moreover, the AG has not identified any prejudice that it would
suffer if Respondents were assured an opportunity to respond to the Petition’s allegations in a
detailed answer supported by evidence. Accordingly, Respondents respectfully request that the
Court issue Respondents’ proposed scheduling order (attached as Exhibit A).

       Thank you for Your Honor’s consideration of this submission.

Respectfully submitted,



____________________                                       /s/ Motty Shulman
Manisha M. Sheth                                           Motty Shulman




/s/ Mark C. Zauderer                                       /s/ Robin A. Henry
Mark C. Zauderer                                           Robin A. Henry


Cc: Counsel for Petitioner




3
   The court rejected this argument in People v. Cold Spring Acquisition, LLC, No. 617709/2022.
In that case, the AG argued in its opposition to the motion to dismiss that the court should treat
the motion to dismiss as a response to the Petition and render a summary determination on the
papers. Id. Dkt. No. 398 at 81-84. The court declined to do so and instead set a deadline by
which Respondents would file an answer to the Petition. Id. Dkt. No. 441 at 15.


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