Document for The State Of New York, New York City Ex Rel. William Cusick v. M&M Holdings, Llc, Lori Page, Michael B. Herron, Lisa Herron, Compoundclaims.Com Llc, Brent Lake, Scott Lake, Manju E. Woods, John Doe Marketing Defendants 1-50, Samir Ali Wahib D.O., Jill Kraft Butler M.D., Mitchell Cohen M.D., Frederick S. Dattel M.D., Jaimy F. Honig M.D., Hasan K. Khondker M.D., Mary Wendt M.D., John Doe Prescribers 1-50, John Kutzko, Linda Kutzko, Pagosa P&C, Inc., Pagosa Springs Pharmacy Llc, Todd Antrobus, Wanda Antrobus, Northridge Center Pharmacy, Craig Michayluk, Evangeline Ward-Michayluk, Orglife Pharmacy Inc. d/b/a Glendale Rx Pharmacy, David Shafts, Farma Pharmaceuticals, Inc., Stephen Cobos, John Doe Pharmacies 1-50

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                                FILED: NEW YORK COUNTY CLERK 02/26/2024 11:58 AM                                                     INDEX NO. 101927/2019
NYSCEF DOC. NO. 352                                                                           RECEIVED NYSCEF: 02/26/2024




         SUPREME COURT OF THE STATE OF NEW YORK
         NEW YORK COUNTY
         -------------------------------------------------------------------------x
         THE STATE OF NEW YORK and NEW YORK
         CITY ex rel. William Cusick,                                                 Index no.: 101927/2019
                                                                                      (d’Auguste, J.)
                                               Plaintiff.

                                     -against-                                        AFFIRMATION
                                                                                      IN SUPPORT
         M&M Holdings, LLC; Lori Page, Michael B.
         Herron, Lisa Herron, CompoundClaims.com LLC,
         Brent Lake, Scott Lake, Manju E. Woods, John Doe
         Marketing Defendants 1-50, Samir Ali Wahib, D.O.,
         Jill Kraft Butler, M.D., Mitchell Cohen, M.D.,
         Frederick S. Dattel, M.D., Jaimy F. Honig, M.D.,
         Hasan K. Khondker, M.D., Mary Wendt, M.D., John
         Doe Prescribers 1-50, John Kutzko, Linda Kutzko,
         Pagosa P&C, Inc., Pagosa Springs Pharmacy LLC,
         Todd Antrobus, Wanda Antrobus, Northridge Center
         Pharmacy, Craig Michayluk, Evangeline Ward Michayluk,
         Orglife Pharmacy, Inc. d/b/a Glendale Rx Pharmacy,
         David Shafts, Farma Pharmaceuticals, Inc., Stephen Cobos,
         John Doe Pharmacies 1-50,

                                               Defendants.
         ------------------------------------------------------------------------x

                  Randy Zelin, an attorney duly admitted to practice law before the Court of the State of New

         York, affirms under penalty of perjury pursuant to CPLR 2106:

                  1.        I am the principal shareholder of Randy Scott Zelin P.C., attorneys of record for

         defendants John Kutzko and Linda Kutzko (the “Kutzko Defendants”). I am familiar with the facts

         contained in my affirmation, unless I state that my knowledge of a fact is based upon information

         and my belief – in that case I believe the matter asserted to be true.

                  2.        My affirmation, together with the annexed exhibits, is submitted in support of the

         Kutzko Defendants’ application for a further extension of time to file a response (motion or

         Answer) to Plaintiff’s Amended Complaint (NYSECF Document no. 4 filed January 24, 2024).




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FILED: NEW YORK COUNTY CLERK 02/26/2024 11:58 AM                                                    INDEX NO. 101927/2019
NYSCEF DOC. NO. 352                                                                         RECEIVED NYSCEF: 02/26/2024




                  3.      Leave of Court for additional time is requested because, as will be more fully

         explained, the Amended Complaint that the Kutzko Defendants are to respond to is now the

         subject of another motion to amend the Amended Complaint – which if granted, would moot the

         Kutzko Defendant’s response to the Amended Complaint.

                  4.      To sharpen the point on the pencil:

                          a.      this Court was kind enough to permit the Kutzko Defendants an extension

         of time to make a motion or Answer Plaintiff’s Amended Complaint (Exhibit A, Decision + Order

          on Motion on January 3, 2024 NYSCEF Document no. 314 the “Order Extending Time”) 1.

                          b.      However, since the filing of Plaintiff’s Amended Complaint (NYSECF

         Document no. 4 filed January 24, 2023), Plaintiff moved to Amend the Amended Complaint (see

         NYSCEF Document no. 302, Plaintiff’s Notice of Motion to Amend (“Plaintiff’s Motion to Amend the

         Amended Complaint”) filed on December 20, 2023).

                          c.      Plaintiff’s Motion to Amend the Amended Complaint appears to be

         returnable on consent, to February 16, 2024 (NYSCEF Document no. 347 filed on January 26,

         2024).


                  5.      The filing of an amended complaint (or in this case, a second amended complaint),

         supersedes the original complaint. The amended (or second amended) complaint becomes the sole

         complaint in the case if the Court grants Plaintiff’s application. Seidler v. Knopf, 186 A.D.3d 886, 888

          (2d Dept. 2020 citing St. Lawrence Explosives Corp. v. Law Bros. Contr. Corp., 170 A.D.2d 957 (4th Dept.

         1991).




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           Given the pending Motion to Amend the Amended Complaint, I initially took it for granted that
          Plaintiff would not press for a response to the Amended Complaint, which by the Order Extending
          Time, would have been due on February 18, 2024. However, I thought the better of it – given the
          possible penalty for “assuming.” That is why the instant application has been filed.
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FILED: NEW YORK COUNTY CLERK 02/26/2024 11:58 AM                                                   INDEX NO. 101927/2019
NYSCEF DOC. NO. 352                                                                        RECEIVED NYSCEF: 02/26/2024




                  6.      Against the backdrop of the Kutzko Defendants having to respond to a second

          Amended Complaint if the Court grants Plaintiff leave to serve and file it, it is respectfully submitted

          that good cause is before the Court to exercise its discretion under CPLR 3012(d) and §2004, and

         grant the Kutzko Defendants an extension of time of thirty days to file a responsive

         pleading/motion, or Answer -- running from the date the Court determines Plaintiff’s Motion to

         Amend the Amended Complaint.

                  7.      No prior application for the relief requested has been made – except that previous

         application for leave to file a late response to the Amended Complaint was made and granted (see

         Exhibit A).

                  8.      For all of these reasons, I respectfully ask the Court to grant the Kutzko Defendants’

         application in all respects, and that they have such other and further relief as to this Court seems just

         and proper.

         Dated: February 26, 2024
                New York, New York

                                                          /s/ Randy Zelin
                                                          Randy Zelin




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