CNS Partners, Inc. v. The City of New York et al
| CNS Partners, Inc. doing business as Cornerstone Realty |
| The City of New York, Eric L. Adams, Department of Health and Mental Hygiene and Dave A Chokshi |
| 1:2022cv00037 |
| January 4, 2022 |
| US District Court for the Eastern District of New York |
| Ann M Donnelly |
| Cheryl L Pollak |
| Constitutional - State Statute |
| 28 U.S.C. § 1983 Civil Rights |
| Plaintiff |
Docket Report
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| Civil Case Terminated. (Greene, Donna) |
| Filing 15 NOTICE of Voluntary Dismissal by CNS Partners, Inc. WITHOUT PREJUDICE PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 41(a) (Fonte, Mark) |
| Minute Entry for proceedings held before Judge Ann M. Donnelly: Telephonic Motion Hearing held on January 10, 2022. Louis Gelormino appeared for the plaintiff. Rachel Moston and Annette Lalic appeared for the defendants. Case called. Discussion held. The plaintiff's motion for a temporary restraining order is denied. The Courts decision on the plaintiffs application for a preliminary injunction is deferred. The plaintiff must file a letter by no later than January 17, 2022 explaining how it would like to proceed in view of the Court's ruling, including whether it intends to supplement its motion for a preliminary injunction or amend the complaint. (Court Reporter Charleane Heading.) (Greene, Donna) |
| Filing 14 NOTICE of Appearance by Louis M Gelormino on behalf of CNS Partners, Inc. (aty to be noticed) (Gelormino, Louis) |
| Filing 13 MEMORANDUM in Opposition re #7 Notice of MOTION for Preliminary Injunction Notice of MOTION for Temporary Restraining Order Defendants' Corrected Memo of Law in Opposition to TRO filed by All Defendants. (Moston, Rachel) |
| Filing 12 MEMORANDUM in Opposition re #7 Notice of MOTION for Preliminary Injunction Notice of MOTION for Temporary Restraining Order filed by All Defendants. (Attachments: #1 Declaration Declaration of Dr. Michelle Morse, Chief Medical Officer of the NYC Department of Health) (Moston, Rachel) |
| Filing 11 NOTICE of Appearance by Annette Marie Lalic on behalf of All Defendants (aty to be noticed) (Lalic, Annette) |
| Filing 10 NOTICE of Appearance by Rachel Kane Moston on behalf of All Defendants (aty to be noticed) (Moston, Rachel) |
ORDER denying the plaintiff's motion for a temporary restraining order ("TRO").A TRO is an "extraordinary and drastic remedy, one that should not be granted unless the movant, by a clear showing, carries the burden of persuasion." JBR, Inc. v. Keurig Green Mountain, Inc., 618 Fed. App'x 31, 33 (2d Cir. 2015) (quoting Sussman v. Crawford, 488 F.3d 136, 139 (2d Cir. 2007)). A party seeking a TRO must show: "(1) a likelihood of success on the ultimate merits of the lawsuit; (2) a likelihood that the moving party will suffer irreparable harm if a TRO is not granted; (3) that the balance of hardship tips in the moving party's favor; and (4) that the public interest is not disserved by the relief granted." Free Country Ltd v. Drennen, 235 F. Supp. 3d 559, 565 (S.D.N.Y. 2016) (citing JBR, Inc., 618 Fed. App'x at 33). Each of these factors weighs against granting the plaintiff's motion for a TRO. First, to the extent that the plaintiff claims a property or liberty interest in conducting its business, the plaintiff has not established that it is likely to succeed on the merits. The plaintiff has not alleged, as it must, that it has been "prevented from exercising [the] right completely." See, e.g., Columbus Ale House, Inc. v. Cuomo, 495 F. Supp. 3d 88, 94 (E.D.N.Y. 2020) (internal quotation marks and citations omitted); Hu v. City of New York, 927 F.3d 81, 102 (2d. Cir. 2019) ("[B]usiness losses alone do not implicate the Due Process right of occupational choice."). Second, the plaintiff's allegations of harm are insufficient to warrant a TRO because they are speculative, and amount to nothing more than potential pecuniary losses that could be redressed through monetary damages. See, e.g., Broecker v. New York City Dep't of Educ., No. 21-CV-6387, 2021 WL 5514656, at *8-9 (E.D.N.Y. Nov. 24, 2021) (finding no irreparable harm where "monetary relief will be available to compensate [plaintiffs'] loss of income"). Finally, I find that the remaining factors - the balance of equities, and the public interest - weigh in favor of the defendants. Whatever hardships the plaintiff may face are outweighed by the government's overriding interest in stemming the spread of the COVID-19 virus and protecting the public health. As Judge Cogan wrote in Columbus Ale House, "where good faith arguments can be made on both sides of the many issues raised by the pandemic," it is up to local government, "not the courts, to balance the competing public health and business interests." 495 F. Supp. 3d at 95. Therefore, the plaintiff's motion for a TRO is denied. The Court's decision on the plaintiff's application for a preliminary injunction is deferred. The plaintiff must file a letter by no later than January 17, 2022 explaining how it would like to proceed in view of the Court's ruling, including whether it intends to supplement its motion for a preliminary injunction or amend the complaint. Ordered by Judge Ann M. Donnelly on 1/10/2022. (Baer, Nicholas)
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| Filing 9 Summons Issued as to Eric L. Adams, Dave A Chokshi, Department of Health and Mental Hygiene, The City of New York. (Guzzi, Roseann) |
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SCHEDULING ORDER: Motion Hearing set for 1/10/2022 at 3:00 p.m. by telephone before Judge Ann M. Donnelly. The Court will hold a telephone hearing on the plaintiff's motion for a temporary restraining order on January 10, 2022 at 3:00 p.m., via telephone conference (line (888) 363-4734, access code 9057625). Ordered by Judge Ann M. Donnelly on 1/7/2022. (Baer, Nicholas)
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| Filing 8 Proposed Summons. by CNS Partners, Inc. (Fonte, Mark) |
| Filing 7 Notice of MOTION for Preliminary Injunction , Notice of MOTION for Temporary Restraining Order by CNS Partners, Inc.. (Fonte, Mark) |
| Filing 6 Letter in response to Plaintiff's January 4, 2022 Letter by Eric L. Adams, Dave A Chokshi, Department of Health and Mental Hygiene, The City of New York (Moston, Rachel) |
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ORDER denying #2 Motion for Order to Show Cause. The Court has received #5 the plaintiffs' letter and #6 the defendants' letter in response.It is not apparent from the parties' submissions that service has been effected properly. The plaintiffs say that they served the defendants "via email shortly after filing the documents with the Court." (ECF No. 5.) Federal Rule of Civil Procedure 4(e) provides for service of process on an individual in the United States according to the laws of the state where the district court is located. In New York, service of process may be effected by: (1) personal service; (2) delivery to "a person of suitable age and discretion at the actual place of business, dwelling place or usual place of abode of the person to be served" and by either mailing the summons to the person to be served at his or her last known residence; (3) service on an agent; or (4) so-called "nail and mail" service. N.Y.C.P.L.R. 308(1)-(4). The plaintiffs do not explain, as they must, why it is impracticable to serve the defendants by these prescribed methods. See Ferrarese v. Shaw, 164 F. Supp. 3d 361, 365 (E.D.N.Y. 2016) ("A plaintiff seeking to effect alternative service must make a showing that the other prescribed methods of service were impracticable." (internal quotations and citation omitted)). Although #6 the defendants' letter may be construed as an informal understanding that service was waived, the parties have not complied with Federal Rule of Civil Procedure 4(d)'s requirements for waiver, which require the plaintiff to request a waiver of service from the defendant, obtain the defendant's written agreement on a waiver of service form, and then file the executed form. See Fed. R. Civ. P. 4(d); Kogan v. Facebook, Inc., 334 F.R.D. 393, 400 (S.D.N.Y. 2020). Accordingly, the plaintiffs must either show that they have served defendants properly, or, to the extent they rely on service waiver, comply with the waiver requirements set out at Rule 4(d). See id. at 401 ("Whether by means of effecting actual service or achieving a service waiver, a plaintiff is obliged to comply with [Rule 4], whose obligations are mandatory for all litigants.").In addition, the plaintiffs have not established that they can proceed by an order to show cause, as opposed to notice by motion. "No ex parte order, or order to show cause to bring on a motion, will be granted except upon a clear and specific showing by affidavit of good and sufficient reasons why a procedure other than by notice of motion is necessary." Gullas v. 37-31 73rd St. Owners Corp., No. 12-CV-2301, 2012 WL 1655520, at *1 (E.D.N.Y. May 10, 2012) (quoting Loc. Civ. R. 6.1(d)). The plaintiffs' letter and affidavit do not meet the standard under Local Civil Rule 6.1(d). While the plaintiffs purport to seek "emergency relief," and allege a risk of "irreparable damage to its business," (ECF Nos. 5, 5-1), they do not provide any other reasons "by clear and specific showing" for why a regular notice by motion is either inadequate or impracticable in this case. The plaintiffs' allegations are therefore insufficient to show why a procedure other than by notice of motion is necessary. The #2 plaintiffs' proposed order to show cause is denied, and the plaintiffs are directed to re-file it as a notice of motion. Ordered by Judge Ann M. Donnelly on 1/5/2022. (Baer, Nicholas)
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| Filing 5 Letter Re: January 4, 2022, Scheduling Order by CNS Partners, Inc. (Attachments: #1 Affidavit OF MARK J. FONTE) (Fonte, Mark) |
| Filing 4 This attorney case opening filing has been checked for quality control. See the attachment for corrections that were made, if any. (Bowens, Priscilla) |
| Filing 3 In accordance with Rule 73 of the Federal Rules of Civil Procedure and Local Rule 73.1, the parties are notified that if all parties consent a United States magistrate judge of this court is available to conduct all proceedings in this civil action including a (jury or nonjury) trial and to order the entry of a final judgment. Attached to the Notice is a blank copy of the consent form that should be filled out, signed and filed electronically only if all parties wish to consent. The form may also be accessed at the following link: #http://www.uscourts.gov/uscourts/FormsAndFees/Forms/AO085.pdf. You may withhold your consent without adverse substantive consequences. Do NOT return or file the consent unless all parties have signed the consent. (Bowens, Priscilla) |
| Filing 2 Emergency MOTION for Order to Show Cause for Temporary Restraining Order and Preliminary Injunction by CNS PARTNERS, INC.. (Attachments: #1 Memorandum in Support OF PLAINTIFFS MOTION FOR PRELIMINARY INJUNCTION AND TEMPORARY RESTRAINING ORDER, #2 Exhibit A, #3 Exhibit B) (Fonte, Mark) |
| Filing 1 COMPLAINT against Eric L. Adams, Dave A Chokshi, Department of Health and Mental Hygiene, The City of New York filing fee $ 402, receipt number ANYEDC-15160818 Was the Disclosure Statement on Civil Cover Sheet completed -NO,, filed by CNS PARTNERS, INC.. (Attachments: #1 Civil Cover Sheet, #2 Exhibit A, #3 Exhibit B) (Fonte, Mark) |
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SCHEDULING ORDER: The Court is in receipt of #1 the plaintiffs' Complaint, and #2 the plaintiffs' Emergency Motion for Order to Show Cause for Temporary Restraining Order and Preliminary Injunction. The plaintiffs are directed to file a letter by no later than 10:00 a.m. on January 5, 2022, explaining whether they intend to serve the defendants in this case, and if not, why no notice to the defendants is necessary pursuant to Federal Rule of Civil Procedure 65(b)(1). In addition, because the plaintiffs have filed #2 a motion for order to show cause, the letter must also provide, "a clear and specific showing by affidavit of good and sufficient reasons why a procedure other than by notice of motion is necessary, and stating whether a previous application for similar relief has been made." Local Civil Rule 6.1(d). Ordered by Judge Ann M. Donnelly on 1/4/2022. (Baer, Nicholas)
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| Case Assigned to Judge Ann M Donnelly and Chief Magistrate Cheryl L. Pollak. Please download and review the Individual Practices of the assigned Judges, located on our #website. Attorneys are responsible for providing courtesy copies to judges where their Individual Practices require such. (Bowens, Priscilla) |
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