Preview
FILED: ALBANY COUNTY CLERK 08/17/2023 03:54 PM INDEX NO. 907282-23
NYSCEF DOC. NO. 146
140 RECEIVED NYSCEF: 08/17/2023
08/16/2023
At an appearance of the Supreme Court of the
State of New York, held in and for the County
of Albany at the Albany County Courthouse,
Albany, New York, on the{1lrday of August
2023.
PRESENT: Hon. Kevin R. Bryant, J.S.C
SUPREME COURT OF THE STATE OF NEW YORK
COTINTY OF ALBANY
x
CARMEN FIORE, WILLIAM NORGARD,
STEVE MEJIA, and DOMINIC SPACCIO,
Plaintiffs, Index No.: 907282-23
* against -
I?*ffii 0RDERTO
NEW YORK STATE CANNABIS CONTROL SHOW CAUSE
BOARD, NEW YORK STATE OFFICE OF
CANNABIS MANAGEMENT, TRTMATNE
WRIGHT, in her official capacity as the
Chairwoman of the New York State Cannabis
Control Board, and CHRIS ALEXANDER, in his
official capacity as Executive Director of the
New York State Office of Cannabis Management.
Defendants.
x
Upon reading the annexed Affidavit of William C. Thompson, Jr. dated August 15, 2023
(the "Thompson Affidavit"), in Support of an Order to Show Cause allowing the New York Social
Equity Cannabis Investment Fund, L.P. (the "Fund") and its wholly owned subsidiaries NYSECIF
Operating Company, LLC and NYSECIF Leasing Company, LLC (such subsidiaries, together
with the Fund, the "Fund Group") to intervene in the above-captioned action (i) for the limited
purpose of explaining how the Fund Group would be impacted by further extensions of the
restrictions on the New York State Office of Cannabis Management ("OCM") and the New York
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907282-23
State Cannabis Control Board ("CCB") given the significant resources the Fund Group has
committed to the social equity program established by the State of New York (the "S!A[9") to date;
and (ii) to provide that information in opposition to the application for preliminary injunction, and
upon all the papers, exhibits, and proceedings herein, and good cause appearing therefore,
LET THE PARTIES SHOW CAUSE before this Court at the Supreme Court of the State
of New York, County of Albany, at the courthouse located at 16 Eagle Street, Albany, New York
OR at the Supreme Court of the State of New York, County of Ulster, at the courthouse located at
6y August
285 Wall Street, Kingston, New York on the 23rd 66 2023, at 10:00
o'clock in the fore 1ssn, or as soon thereafter as counsel may be heard, why an Order and
Judgment should not be made and entered herein: Granting the Fund Group's Motion to Intervene,
including allowing the filing of the Thompson Affidavit in the record in this matter, for the limited
purpose of explaining the adverse impact on the Fund Group of further extensions of the
restrictions on OCM and CCB and the significant resources the Fund Group has committed to the
State's social equity program to date; and it is further
ORDERED that service of a copy of this Order to Show Cause, together with the
underlying papers upon which it is granted, shall be deemed good and suffrcient service if made
upon the parties who have appeared herein or their attorneys by electronic filing, on or before the
1{! duy of August 2023.
August 16,2023 ON SUBMISSION ONIY
DATED:
Ulster, New York NO PERSONAL APPEARANCES REQUIRED
ENTER:
. Kevin R. .c.
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NYSCEF DOC. NO. 146
98 RECEIVED NYSCEF: 08/17/2023
08/15/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF ALBANY
--------------------------------- X
CARMEN FIORE, WILLIAM NORGARD, :
STEVE MEJIA, and DOMINIC SPACCIO, :
:
Plaintiffs, : Index No.: 907282-23
:
− against – :
: AFFIDAVIT OF WILLIAM C.
NEW YORK STATE CANNABIS CONTROL : THOMPSON, JR. IN SUPPORT
BOARD, NEW YORK STATE OFFICE OF : OF THE FUND GROUP’S
CANNABIS MANAGEMENT, TREMAINE : ORDER TO SHOW CAUSE TO
WRIGHT, in her official capacity as the : INTERVENE TO OPPOSE
Chairwoman of the New York State Cannabis : PRELIMINARY INJUNCTION
Control Board, and CHRIS ALEXANDER, in his :
official capacity as Executive Director of the :
New York State Office of Cannabis Management. :
:
Defendants. :
:
--------------------------------- X
STATE OF NEW YORK }
}
COUNTY OF NEW YORK }
WILLIAM C. THOMPSON, JR., being duly sworn, deposes and says:
1. I am a Principal of Social Equity Impact Ventures GP I, LLC, the general partner
of the New York Social Equity Cannabis Investment Fund, L.P. (the “Fund”), and the President of
its wholly owned subsidiaries (the “Subsidiaries”) NYSECIF Operating Company, LLC and
NYSECIF Leasing Company, LLC (the Subsidiaries, together with the Fund, the “Fund Group”).
I submit this affidavit (i) in support of the Fund Group’s motion to intervene in the above-captioned
action for the limited purpose of explaining how the Fund Group would be impacted by further
extensions of the restrictions on the New York State Office of Cannabis Management (“OCM”)
and the New York State Cannabis Control Board (“CCB”) given the significant resources the Fund
Group has committed to the social equity program established by the State of New York (the
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NYSCEF DOC. NO. 146
98 RECEIVED NYSCEF: 08/17/2023
08/15/2023
“State”) to date; and (ii) to provide that information in opposition to Plaintiffs’ application for
preliminary injunction.1
The Harm to the Fund Group and the Licensees it was Established to Support
2. As detailed in earlier-filed court papers in this action, the creation of the New York
Social Equity Cannabis Investment Fund was specifically authorized by the State legislature per
statute, PAL § 1678(32), to establish up to a $200 million social impact investment fund
exclusively dedicated to financing the development, leasing, and initial build out of storefront
conditional adult-use retail cannabis dispensaries (“CAURD”) throughout the State.
3. The Fund is a limited partnership formed, inter alia, to position social equity
entrepreneurs to succeed in New York’s newly created adult use cannabis industry.2 The
Dormitory Authority of the State of New York (“DASNY”) is a limited partner of the Fund.
4. The Fund Group helps those who have a CAURD license meet the costs of
establishing adult-use cannabis retail dispensaries, including the identification and leasing of
suitable retail locations and design, construction, and fit-out of the spaces. See NY SFL § 99-ii(d).
In support of this initiative, DASNY, in its capacity as a limited partner, has committed to investing
up to $50 million in funds provided by the State into the Fund.
1
The Fund Group takes no position on the merits of the complaint and makes this submission
solely to identify the harm that an extension of this Court’s injunction would cause to the Fund
Group.
2
Many states and cities have implemented social equity programs in connection with the
legalization of medical or adult-use cannabis to allow those individuals who were most impacted
by cannabis prohibition -- minorities, and those with marijuana offenses prior to legalization -- to
be afforded an opportunity to meaningfully participate in this new and developing industry.
Cannabis has been legalized for medical or adult use in thirty-six states and fifteen states have
social equity programs. “Thirteen of the 18 adult-use states and two of the 18 medical-only legal
cannabis states have social equity programs.” MCBA National Cannabis Equity Report 2022,
https://mjbizdaily.com/wp-content/uploads/2022/02/National-Cannabis-Equity-Report-1.pdf
2
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5. In furtherance of its purpose, the Fund Group has expended considerable resources
to advance the program and the State’s public policy, including, but not limited to:
a. working with real estate consultants to identify dispensary sites throughout the
State while ensuring compliance with OCM rules and regulations;
b. preparing necessary forms and agreements required to lease and construct proposed
dispensary sites;
c. reviewing, analyzing and touring the options presented by the brokers throughout
the State to select attractive sites and negotiate fair deals through a request for
information (“RFI”)/letter of interest (“LOI”) process;
d. negotiating RFIs to establish business terms and engaging in lease negotiations for
multiple sites throughout the State;
e. working with design build construction teams to assess commercial retail spaces
for development as dispensary sites, to conduct initial design and site assessment
work, and to conduct due diligence to identify work to be performed by landlords
prior to transfer of possession;
f. evaluating planning and zoning processes and requirements;
g. developing estimated project budgets and a schedule for preliminary planning
purposes; and
h. authorizing the construction of leased locations.
All of these activities have required the expenditure or commitment of significant amounts of
money by the Fund Group.
6. Once a member of the Fund Group executes a dispensary lease, OCM acts to match
a licensee to the location. Any delay in OCM’s ability to match social equity licensees with
3
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98 RECEIVED NYSCEF: 08/17/2023
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prospective sites would have a negative effect on the Fund and the Subsidiaries, which are neither
State entities nor parties to this litigation.3
7. After an extensive State-wide commercial real estate search that involved screening
thousands of potential properties, the Fund Group has entered into twenty-three leases and is
preparing four more leases for execution, which would bring the total number of executed leases
to twenty-seven within the next few weeks. For those sites with executed leases, lease payments
will continue to become due and paid while the Fund Group is forced to wait for a matched licensee
to begin operation. Under existing leases, the Fund Group is obligated to pay rents totaling
approximately $500,000 per month. The Fund Group has taken on these liabilities in reliance upon
the State’s ability to match licensees to Fund-sponsored dispensary locations. Under many of the
leases, a failure to timely open and operate a dispensary could cause the Fund Group to breach
operating covenants, triggering defaults.
8. There are currently fifty-seven sites in final lease or RFI/LOI negotiations,
inclusive of those sites with executed leases and the sites that are currently waiting to be matched
with prospective licensees. If unable to finalize these leases, the Fund faces the risk that landlords
will put the sites back on the market and all of the Fund Group’s efforts to negotiate these leases
and expenses incurred to conduct site assessments by construction teams would be lost.
3
The program was further hampered by a prior injunction issued in Variscite NY One v. State of
New York, et al. Variscite N.Y. One, Inc. v. New York, 2022 WL 17257900 (N.D.N.Y. Jan. 31,
2023) that delayed activity in Western New York, the Hudson Valley, Central New York, the
Finger Lakes, and Brooklyn and caused the Fund to suspend lease negotiations in those regions
and resulted in a loss of time and resources for the program. The U.S. Court of Appeals for the
Second Circuit eventually narrowed the injunction to one region. Variscite Ny One, Inc. v. State of
New York, 22-3128, ECF No. 64 (2d Cir. Mar. 28, 2023).
4
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9. Construction, at significant expense to the Fund Group, has been completed at two
locations with matched licensees who have received provisional licenses. These licensees have
expended substantial efforts, both in time and financial resources, to prepare for opening, which
includes hiring staff, obtaining and binding requisite insurance, and meeting other business needs
for the commencement of operations.
10. Construction site assessments, and/or design plans are currently underway and the
Fund Group is obligated to pay contractors and consultants working at the fifty-seven locations.4
The Fund Group has committed approximately $23,500,000 to be expended for site assessments,
design, and construction of current and prospective locations. Material and supplies have been
ordered. Construction teams have been assigned and are ready to proceed. Any construction
delays would result in increased construction costs—costs that ultimately will be borne by the
Fund Group and social equity licensees.
11. While the injunction does not apply directly to the Fund Group, the inability of
OCM and CCB to match and authorize CAURD licensees to operate those sites will result in
considerable financial harm to the Fund Group and its investors, including the State. Moreover,
money that the Fund Group spends on rent and other costs for empty dispensaries without licensed
operators is money that will not be available to support future social equity licensees.
12. If the Court decides that some form of injunctive relief is necessary, we respectfully
request such relief be tailored to avoid harm to the Fund Group and other CAURD licensees who
will also be harmed. Specifically, the Fund Group requests that OCM/CCB be permitted to
advance the licensing process to allow operations to proceed in those sites where the Fund Group
4
This number is inclusive of properties undergoing site assessments, design plans and construction
(20 sites identified for full design and construction and thirty-seven sites with consultant costs and
site assessments).
5
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has executed or nearly executed leases and where the Fund Group has RFI / LOIs pending with
landlords, pending a determination of the underlying action.
The Fund Group’s Basis For Intervention
13. The Fund Group should be permitted to intervene as of right pursuant to CPLR §
1012(a)(2) as the representation of the Fund Group’s “interest by the parties is or may be
inadequate” and the Fund Group “may be bound by the judgment.” As described above, the
operations of the Fund Group will unquestionably be impacted by judgment in favor of Plaintiffs
on the pending application for preliminary injunction.
14. The Fund Group should also be permitted to intervene pursuant to CPLR § 1013,
as the Fund Group’s “defense and the main action have a common question of law or fact” and the
intervention will not “unduly delay the determination of the action.” Permissive intervention is
appropriate where “[t]he proposed intervenors have a real and substantial interest in the outcome
of the action.” St. Joseph’s Hosp. Health Ctr. v. Dept. of Health of State of N.Y., 637 N.Y.S.2d
821, 823, 224 A.D.2d 1008, 1009 (4th Dep’t 1996).
15. It is, therefore, respectfully requested that this Court permit the Fund Group to
intervene for the limited purpose of submitting this Affirmation to explain how the Fund Group
would be impacted by further extensions of the restrictions on OCM/CCB and the significant
resources the Fund Group has committed to the State’s social equity program to date.
16. We have, through counsel, communicated with the Parties to determine whether
they consent to the intervention. Defendants do not oppose this request. As of this time, we have
not heard back from Plaintiffs’ counsel or counsel for the CAURD Intervenors.
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STATEMENT OF COMPLIANCE
I, A. Michael Pratt, hereby certify that the above Affidavit of William C. Thompson, Jr. in Support
of New York Social Equity Cannabis Investment Fund, L.P., NYSECIF Operating Company,
LLC, and NYSECIF Leasing Company, LLC’s Order to Show Cause to Intervene to Oppose
Preliminary Injunction complies with the word limit set by Rule 202.8-b of the Uniform Rules of
this Court. I hereby further certify that, according to the word count feature of Microsoft Word,
this document is 1,689 words, excluding the caption, table of contents, table of authority and
signature block.
___/s/A. Michael Pratt____
A. Michael Pratt
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Preview
FILED: ALBANY COUNTY CLERK 08/17/2023 03:54 PM INDEX NO. 907282-23 NYSCEF DOC. NO. 146 140 RECEIVED NYSCEF: 08/17/2023 08/16/2023 At an appearance of the Supreme Court of the State of New York, held in and for the County of Albany at the Albany County Courthouse, Albany, New York, on the{1lrday of August 2023. PRESENT: Hon. Kevin R. Bryant, J.S.C SUPREME COURT OF THE STATE OF NEW YORK COTINTY OF ALBANY x CARMEN FIORE, WILLIAM NORGARD, STEVE MEJIA, and DOMINIC SPACCIO, Plaintiffs, Index No.: 907282-23 * against - I?*ffii 0RDERTO NEW YORK STATE CANNABIS CONTROL SHOW CAUSE BOARD, NEW YORK STATE OFFICE OF CANNABIS MANAGEMENT, TRTMATNE WRIGHT, in her official capacity as the Chairwoman of the New York State Cannabis Control Board, and CHRIS ALEXANDER, in his official capacity as Executive Director of the New York State Office of Cannabis Management. Defendants. x Upon reading the annexed Affidavit of William C. Thompson, Jr. dated August 15, 2023 (the "Thompson Affidavit"), in Support of an Order to Show Cause allowing the New York Social Equity Cannabis Investment Fund, L.P. (the "Fund") and its wholly owned subsidiaries NYSECIF Operating Company, LLC and NYSECIF Leasing Company, LLC (such subsidiaries, together with the Fund, the "Fund Group") to intervene in the above-captioned action (i) for the limited purpose of explaining how the Fund Group would be impacted by further extensions of the restrictions on the New York State Office of Cannabis Management ("OCM") and the New York 11 of of 10 2 FILED: ALBANY COUNTY CLERK 08/17/2023 03:54 PM INDEX NO. 907282-23 NYSCEF DOC. NO. 146 140 RECEIVED NYSCEF: 08/17/2023 08/16/2023 907282-23 State Cannabis Control Board ("CCB") given the significant resources the Fund Group has committed to the social equity program established by the State of New York (the "S!A[9") to date; and (ii) to provide that information in opposition to the application for preliminary injunction, and upon all the papers, exhibits, and proceedings herein, and good cause appearing therefore, LET THE PARTIES SHOW CAUSE before this Court at the Supreme Court of the State of New York, County of Albany, at the courthouse located at 16 Eagle Street, Albany, New York OR at the Supreme Court of the State of New York, County of Ulster, at the courthouse located at 6y August 285 Wall Street, Kingston, New York on the 23rd 66 2023, at 10:00 o'clock in the fore 1ssn, or as soon thereafter as counsel may be heard, why an Order and Judgment should not be made and entered herein: Granting the Fund Group's Motion to Intervene, including allowing the filing of the Thompson Affidavit in the record in this matter, for the limited purpose of explaining the adverse impact on the Fund Group of further extensions of the restrictions on OCM and CCB and the significant resources the Fund Group has committed to the State's social equity program to date; and it is further ORDERED that service of a copy of this Order to Show Cause, together with the underlying papers upon which it is granted, shall be deemed good and suffrcient service if made upon the parties who have appeared herein or their attorneys by electronic filing, on or before the 1{! duy of August 2023. August 16,2023 ON SUBMISSION ONIY DATED: Ulster, New York NO PERSONAL APPEARANCES REQUIRED ENTER: . Kevin R. .c. 2 22 of of 10 2 FILED: ALBANY COUNTY CLERK 08/17/2023 08/15/2023 03:54 04:31 PM INDEX NO. 907282-23 NYSCEF DOC. NO. 146 98 RECEIVED NYSCEF: 08/17/2023 08/15/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ALBANY --------------------------------- X CARMEN FIORE, WILLIAM NORGARD, : STEVE MEJIA, and DOMINIC SPACCIO, : : Plaintiffs, : Index No.: 907282-23 : − against – : : AFFIDAVIT OF WILLIAM C. NEW YORK STATE CANNABIS CONTROL : THOMPSON, JR. IN SUPPORT BOARD, NEW YORK STATE OFFICE OF : OF THE FUND GROUP’S CANNABIS MANAGEMENT, TREMAINE : ORDER TO SHOW CAUSE TO WRIGHT, in her official capacity as the : INTERVENE TO OPPOSE Chairwoman of the New York State Cannabis : PRELIMINARY INJUNCTION Control Board, and CHRIS ALEXANDER, in his : official capacity as Executive Director of the : New York State Office of Cannabis Management. : : Defendants. : : --------------------------------- X STATE OF NEW YORK } } COUNTY OF NEW YORK } WILLIAM C. THOMPSON, JR., being duly sworn, deposes and says: 1. I am a Principal of Social Equity Impact Ventures GP I, LLC, the general partner of the New York Social Equity Cannabis Investment Fund, L.P. (the “Fund”), and the President of its wholly owned subsidiaries (the “Subsidiaries”) NYSECIF Operating Company, LLC and NYSECIF Leasing Company, LLC (the Subsidiaries, together with the Fund, the “Fund Group”). I submit this affidavit (i) in support of the Fund Group’s motion to intervene in the above-captioned action for the limited purpose of explaining how the Fund Group would be impacted by further extensions of the restrictions on the New York State Office of Cannabis Management (“OCM”) and the New York State Cannabis Control Board (“CCB”) given the significant resources the Fund Group has committed to the social equity program established by the State of New York (the 31 of of 10 8 FILED: ALBANY COUNTY CLERK 08/17/2023 08/15/2023 03:54 04:31 PM INDEX NO. 907282-23 NYSCEF DOC. NO. 146 98 RECEIVED NYSCEF: 08/17/2023 08/15/2023 “State”) to date; and (ii) to provide that information in opposition to Plaintiffs’ application for preliminary injunction.1 The Harm to the Fund Group and the Licensees it was Established to Support 2. As detailed in earlier-filed court papers in this action, the creation of the New York Social Equity Cannabis Investment Fund was specifically authorized by the State legislature per statute, PAL § 1678(32), to establish up to a $200 million social impact investment fund exclusively dedicated to financing the development, leasing, and initial build out of storefront conditional adult-use retail cannabis dispensaries (“CAURD”) throughout the State. 3. The Fund is a limited partnership formed, inter alia, to position social equity entrepreneurs to succeed in New York’s newly created adult use cannabis industry.2 The Dormitory Authority of the State of New York (“DASNY”) is a limited partner of the Fund. 4. The Fund Group helps those who have a CAURD license meet the costs of establishing adult-use cannabis retail dispensaries, including the identification and leasing of suitable retail locations and design, construction, and fit-out of the spaces. See NY SFL § 99-ii(d). In support of this initiative, DASNY, in its capacity as a limited partner, has committed to investing up to $50 million in funds provided by the State into the Fund. 1 The Fund Group takes no position on the merits of the complaint and makes this submission solely to identify the harm that an extension of this Court’s injunction would cause to the Fund Group. 2 Many states and cities have implemented social equity programs in connection with the legalization of medical or adult-use cannabis to allow those individuals who were most impacted by cannabis prohibition -- minorities, and those with marijuana offenses prior to legalization -- to be afforded an opportunity to meaningfully participate in this new and developing industry. Cannabis has been legalized for medical or adult use in thirty-six states and fifteen states have social equity programs. “Thirteen of the 18 adult-use states and two of the 18 medical-only legal cannabis states have social equity programs.” MCBA National Cannabis Equity Report 2022, https://mjbizdaily.com/wp-content/uploads/2022/02/National-Cannabis-Equity-Report-1.pdf 2 42 of of 10 8 FILED: ALBANY COUNTY CLERK 08/17/2023 08/15/2023 03:54 04:31 PM INDEX NO. 907282-23 NYSCEF DOC. NO. 146 98 RECEIVED NYSCEF: 08/17/2023 08/15/2023 5. In furtherance of its purpose, the Fund Group has expended considerable resources to advance the program and the State’s public policy, including, but not limited to: a. working with real estate consultants to identify dispensary sites throughout the State while ensuring compliance with OCM rules and regulations; b. preparing necessary forms and agreements required to lease and construct proposed dispensary sites; c. reviewing, analyzing and touring the options presented by the brokers throughout the State to select attractive sites and negotiate fair deals through a request for information (“RFI”)/letter of interest (“LOI”) process; d. negotiating RFIs to establish business terms and engaging in lease negotiations for multiple sites throughout the State; e. working with design build construction teams to assess commercial retail spaces for development as dispensary sites, to conduct initial design and site assessment work, and to conduct due diligence to identify work to be performed by landlords prior to transfer of possession; f. evaluating planning and zoning processes and requirements; g. developing estimated project budgets and a schedule for preliminary planning purposes; and h. authorizing the construction of leased locations. All of these activities have required the expenditure or commitment of significant amounts of money by the Fund Group. 6. Once a member of the Fund Group executes a dispensary lease, OCM acts to match a licensee to the location. Any delay in OCM’s ability to match social equity licensees with 3 53 of of 10 8 FILED: ALBANY COUNTY CLERK 08/17/2023 08/15/2023 03:54 04:31 PM INDEX NO. 907282-23 NYSCEF DOC. NO. 146 98 RECEIVED NYSCEF: 08/17/2023 08/15/2023 prospective sites would have a negative effect on the Fund and the Subsidiaries, which are neither State entities nor parties to this litigation.3 7. After an extensive State-wide commercial real estate search that involved screening thousands of potential properties, the Fund Group has entered into twenty-three leases and is preparing four more leases for execution, which would bring the total number of executed leases to twenty-seven within the next few weeks. For those sites with executed leases, lease payments will continue to become due and paid while the Fund Group is forced to wait for a matched licensee to begin operation. Under existing leases, the Fund Group is obligated to pay rents totaling approximately $500,000 per month. The Fund Group has taken on these liabilities in reliance upon the State’s ability to match licensees to Fund-sponsored dispensary locations. Under many of the leases, a failure to timely open and operate a dispensary could cause the Fund Group to breach operating covenants, triggering defaults. 8. There are currently fifty-seven sites in final lease or RFI/LOI negotiations, inclusive of those sites with executed leases and the sites that are currently waiting to be matched with prospective licensees. If unable to finalize these leases, the Fund faces the risk that landlords will put the sites back on the market and all of the Fund Group’s efforts to negotiate these leases and expenses incurred to conduct site assessments by construction teams would be lost. 3 The program was further hampered by a prior injunction issued in Variscite NY One v. State of New York, et al. Variscite N.Y. One, Inc. v. New York, 2022 WL 17257900 (N.D.N.Y. Jan. 31, 2023) that delayed activity in Western New York, the Hudson Valley, Central New York, the Finger Lakes, and Brooklyn and caused the Fund to suspend lease negotiations in those regions and resulted in a loss of time and resources for the program. The U.S. Court of Appeals for the Second Circuit eventually narrowed the injunction to one region. Variscite Ny One, Inc. v. State of New York, 22-3128, ECF No. 64 (2d Cir. Mar. 28, 2023). 4 64 of of 10 8 FILED: ALBANY COUNTY CLERK 08/17/2023 08/15/2023 03:54 04:31 PM INDEX NO. 907282-23 NYSCEF DOC. NO. 146 98 RECEIVED NYSCEF: 08/17/2023 08/15/2023 9. Construction, at significant expense to the Fund Group, has been completed at two locations with matched licensees who have received provisional licenses. These licensees have expended substantial efforts, both in time and financial resources, to prepare for opening, which includes hiring staff, obtaining and binding requisite insurance, and meeting other business needs for the commencement of operations. 10. Construction site assessments, and/or design plans are currently underway and the Fund Group is obligated to pay contractors and consultants working at the fifty-seven locations.4 The Fund Group has committed approximately $23,500,000 to be expended for site assessments, design, and construction of current and prospective locations. Material and supplies have been ordered. Construction teams have been assigned and are ready to proceed. Any construction delays would result in increased construction costs—costs that ultimately will be borne by the Fund Group and social equity licensees. 11. While the injunction does not apply directly to the Fund Group, the inability of OCM and CCB to match and authorize CAURD licensees to operate those sites will result in considerable financial harm to the Fund Group and its investors, including the State. Moreover, money that the Fund Group spends on rent and other costs for empty dispensaries without licensed operators is money that will not be available to support future social equity licensees. 12. If the Court decides that some form of injunctive relief is necessary, we respectfully request such relief be tailored to avoid harm to the Fund Group and other CAURD licensees who will also be harmed. Specifically, the Fund Group requests that OCM/CCB be permitted to advance the licensing process to allow operations to proceed in those sites where the Fund Group 4 This number is inclusive of properties undergoing site assessments, design plans and construction (20 sites identified for full design and construction and thirty-seven sites with consultant costs and site assessments). 5 75 of of 10 8 FILED: ALBANY COUNTY CLERK 08/17/2023 08/15/2023 03:54 04:31 PM INDEX NO. 907282-23 NYSCEF DOC. NO. 146 98 RECEIVED NYSCEF: 08/17/2023 08/15/2023 has executed or nearly executed leases and where the Fund Group has RFI / LOIs pending with landlords, pending a determination of the underlying action. The Fund Group’s Basis For Intervention 13. The Fund Group should be permitted to intervene as of right pursuant to CPLR § 1012(a)(2) as the representation of the Fund Group’s “interest by the parties is or may be inadequate” and the Fund Group “may be bound by the judgment.” As described above, the operations of the Fund Group will unquestionably be impacted by judgment in favor of Plaintiffs on the pending application for preliminary injunction. 14. The Fund Group should also be permitted to intervene pursuant to CPLR § 1013, as the Fund Group’s “defense and the main action have a common question of law or fact” and the intervention will not “unduly delay the determination of the action.” Permissive intervention is appropriate where “[t]he proposed intervenors have a real and substantial interest in the outcome of the action.” St. Joseph’s Hosp. Health Ctr. v. Dept. of Health of State of N.Y., 637 N.Y.S.2d 821, 823, 224 A.D.2d 1008, 1009 (4th Dep’t 1996). 15. It is, therefore, respectfully requested that this Court permit the Fund Group to intervene for the limited purpose of submitting this Affirmation to explain how the Fund Group would be impacted by further extensions of the restrictions on OCM/CCB and the significant resources the Fund Group has committed to the State’s social equity program to date. 16. We have, through counsel, communicated with the Parties to determine whether they consent to the intervention. Defendants do not oppose this request. As of this time, we have not heard back from Plaintiffs’ counsel or counsel for the CAURD Intervenors. [INTENTIONALLY LEFT BLANK – CONTINUE TO NEXT PAGE] 6 86 of of 10 8 FILED: ALBANY COUNTY CLERK 08/17/2023 08/15/2023 03:54 04:31 PM INDEX NO. 907282-23 NYSCEF DOC. NO. 146 98 RECEIVED NYSCEF: 08/17/2023 08/15/2023 97 of of 10 8 FILED: ALBANY COUNTY CLERK 08/17/2023 08/15/2023 03:54 04:31 PM INDEX NO. 907282-23 NYSCEF DOC. NO. 146 98 RECEIVED NYSCEF: 08/17/2023 08/15/2023 STATEMENT OF COMPLIANCE I, A. Michael Pratt, hereby certify that the above Affidavit of William C. Thompson, Jr. in Support of New York Social Equity Cannabis Investment Fund, L.P., NYSECIF Operating Company, LLC, and NYSECIF Leasing Company, LLC’s Order to Show Cause to Intervene to Oppose Preliminary Injunction complies with the word limit set by Rule 202.8-b of the Uniform Rules of this Court. I hereby further certify that, according to the word count feature of Microsoft Word, this document is 1,689 words, excluding the caption, table of contents, table of authority and signature block. ___/s/A. Michael Pratt____ A. Michael Pratt 8 10 8 of 10 8