Variscite NY One, Inc. v. State of New York et al
| Variscite NY One, Inc. |
| State of New York, New York State Office of Cannabis Management and Christopher Alexander |
| 1:2022cv01013 |
| September 26, 2022 |
| U.S. District Court for the Northern District of New York |
| Gary L Sharpe |
| Daniel J Stewart |
| Civil Rights: Other |
| 42 U.S.C. § 1983 Civil Rights Act |
| None |
Docket Report
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This docket was last retrieved on January 31, 2023. A more recent docket listing may be available from PACER.
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| Filing 30 RESPONSE in Opposition re #22 MOTION to Dismiss for Failure to State a Claim and for lack of jurisdiction filed by State of New York. Motion returnable before Judge Sharpe filed by Variscite NY One, Inc.. (Kernkamp, Christian) |
| CLERK'S CORRECTION OF DOCKET ENTRY regarding the #29 Motion to Alter Judgment. Clerk added a redacted version of attachment (3) "Exhibit(s) Ex B Plaintiff's score on Application" to the docket entry. Defense Counsel submitted redacted version in accordance with Local Rules of Procedure. (map) |
| Filing 29 MOTION to Alter Judgment Defendants' Motion to Modify the Court's Preliminary Injunction Order, and in the alternative, motion for a stay pending appeal Response to Motion due by 12/13/2022. Reply to Response to Motion due by 12/20/2022 (Attachments: #1 Declaration of Herb Barbot, #2 Exhibit(s) Ex A map of enjoined regions in relation to cultivators and manufacturers and processors, #3 Exhibit(s) Ex B Plaintiff's score on Application, #4 Memorandum of Law) (Kuryluk, Amanda) (Clerk added additional attachment(s) to docket entry 11/23/2022: #5 Redacted - # 3 Exhibit(s) Ex B Plaintiff's score on Application) (map) |
| CLERK'S CORRECTION OF DOCKET ENTRY Docket Entry previously at 30 Titled "Letter" has been deleted in its entirety as it was erroneously filed in this case. (egr, ) |
Filing 28
MEMORANDUM-DECISION and ORDER - That Variscite's motion for a preliminary injunction (Dkt. No. 6) is GRANTED. That defendants are hereby ENJOINED from issuing any cannabis licenses under the CAURD application program held from August 25, 2022 to September 26, 2022, for the following geographic areas: Finger Lakes; Central New York; Western New York; Mid-Hudson; and Brooklyn during the pendency of this action or until otherwise ordered by the court. Signed by Senior Judge Gary L. Sharpe on 11/10/2022. (jel, )
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| Filing 27 NOTICE by Variscite NY One, Inc. re #6 Emergency MOTION for Preliminary Injunction 10-4-2022 filed by Variscite NY One, Inc.. Motion returnable before Judge Hon. Gary L. SharpeEmergency MOTION for Temporary Restraining Order 10-4-2022 - Plaintiff's Supplemental Request for Judicial Notice (Attachments: #1 Exhibit A, #2 Exhibit 2, #3 Exhibit 3, #4 Exhibit 4, #5 Exhibit 5)(Kernkamp, Christian) |
| Text Only Minute Entry for proceedings held before Senior Judge Gary L. Sharpe: CRD: John Law. Motion Hearing via TEAMS held on 11/9/2022 re #6 Emergency MOTION for Preliminary Injunction filed by Variscite NY One, Inc. Appearances Made: Christian Kernkamp, Esq., for plaintiff and Amanda Kuryluk, Esq., for defendant.s Court apologize for delay for technical issues. Court addresses that it is a public proceeding and only will hear from counsel of record. Court gives procedural history. Atty. Kernkamp will like to supplement and provide Judicial Notice. Court hears arguments from the parties. Atty. Kernkamp will file Judicial Notice by tomorrow. Court RESERVES on decision. Court will issue a written decision (Court Reporter Lisa Tennyson) Time: 10:00-10:40 A.M. (jel, ) |
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Filing 26
Text Only Order - Pending before the court is defendants' request for an adjournment of the hearing on plaintiff's motion for preliminary injunction scheduled for November 9, 2022 at 10:00 A.M. (Dkt. No. 23.) Plaintiff responded as directed by the court. (Dkt. No. 25.) The court concurs with many of the observations in the response, and defendants' motion (id.) is DENIED. IT IS SO ORDERED. Issued by Senior Judge Gary L. Sharpe on 11/4/2022. (jel, )
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| Filing 25 RESPONSE TO LETTER BRIEF filed by Variscite NY One, Inc. as to #23 Letter Request/Motion filed by State of New York . (Attachments: #1 Attachment)(Kernkamp, Christian) |
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Filing 24
Text Only Order - Pending is defendants' request for an adjournment of the hearing on plaintiff's motion for preliminary injunction scheduled for November 9, 2022 at 10:00 A.M. (Dkt. No. 23.) Plaintiff is directed to file a response by 5:00 P.M. today, November 4, 2022. IT IS SO ORDERED. Issued by Senior Judge Gary L. Sharpe on 11/4/2022. (jel, )
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| Filing 23 Letter Motion from Amanda Kuryluk for State of New York requesting adjournment of the November 9, 2022 hearing submitted to Judge Sharpe . (Kuryluk, Amanda) |
| TEXT ONLY NOTICE of Hearing on Motion #6 Emergency MOTION for Preliminary Injunction 10-4-2022 filed by Variscite NY One, Inc. Motion Hearing set for 11/9/2022 at 10:00 AM in Albany before Senior Judge Gary L. Sharpe via TEAMS. A TEAMS link will be sent out to the parties in due course. (jel, ) |
| Filing 22 MOTION to Dismiss for Failure to State a Claim and for lack of jurisdiction filed by State of New York. Motion returnable before Judge Sharpe Response to Motion due by 11/23/2022. Reply to Response to Motion due by 11/30/2022 (Attachments: #1 Memorandum of Law in support of motion to dismiss the Complaint) (Kuryluk, Amanda) |
| Filing 21 REPLY to Response to Motion re #6 Emergency MOTION for Preliminary Injunction 10-4-2022 filed by Variscite NY One, Inc.. Motion returnable before Judge Hon. Gary L. SharpeEmergency MOTION for Temporary Restraining Order 10-4-2022 filed by Variscite NY One, Inc.. (Attachments: #1 Request for judicial notice, #2 Exhibit 1, #3 Exhibit 2, #4 Exhibit 3)(Kernkamp, Christian) |
| Filing 20 RESPONSE in Opposition re #6 Emergency MOTION for Preliminary Injunction 10-4-2022 filed by Variscite NY One, Inc.. Motion returnable before Judge Hon. Gary L. SharpeEmergency MOTION for Temporary Restraining Order 10-4-2022 filed by State of New York. (Attachments: #1 Exhibit(s) Ex A CUARD FAQ Document, #2 Exhibit(s) Ex B CUARD FAQ APP, #3 Exhibit(s) Ex C 540 App, #4 Exhibit(s) Ex D Management agreement, #5 Exhibit(s) Ex E sucession plan, #6 Exhibit(s) Ex F vendor agreement, #7 Exhibit(s) Ex G CUARD mockup, #8 Exhibit(s) Ex H Second application, #9 Exhibit(s) Ex I 753 Management agreement, #10 Exhibit(s) Ex J Succession Plan 753, #11 Exhibit(s) Ex K third application, #12 Exhibit(s) Ex L cease and desist letters, #13 Memorandum of Law in opposition to plaintiff's motion for a preliminary injunction)(Kuryluk, Amanda) |
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Filing 19
TEXT ONLY ORDER - Pending is defendants' letter motion seeking "permission to send the Court by mail a thumb drive containing three of the exhibits in support of the opposition papers in lieu of filing redacted oversized versions of the exhibits on the public docket." (Dkt. No. 18.) There are two issues at play here. The first issue is the size of the proposed filing. That portion of the letter motion is governed by General Order 22 4.5. Second, it appears that defendants wish to avoid their obligation to redact/seek sealing of the records at issue to avoid the dissemination of "sensitive/proprietary information including tax return information, criminal records, and social security information." (Dkt. No. 18.) That portion of the request is governed by Local Rules 5.2 and 5.3, which provides for the proper procedures with respect thereto. The letter motion, (id.), is DENIED in all respects at this juncture. Most importantly, the court will not allow a party to skirt the rules regarding redaction/sealing in the manner proposed here. Insofar as the size of the proposed filing is concerned, as General Order 22 specifies: "[l]arger documents may need to [be] broken down into sub-parts clearly labeled as Part 1, Part 2, etc." IT IS SO ORDERED. Issued by Senior Judge Gary L. Sharpe on 10/20/2022. (jel, )
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| Filing 18 Letter Motion from Amanda Kuryluk for State of New York requesting Permission to send oversized exhibits to the court on a thumbdrive submitted to Judge Sharpe . (Kuryluk, Amanda) |
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Filing 17
Text Only Order - Defendants' request, with consent of plaintiff, for an extension of time until November 2, 2022 to respond to the complaint (Dkt. No. 16) is GRANTED. IT IS SO ORDERED. Issued by Senior Judge Gary L. Sharpe on 10/18/2022. (jel, )
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| Filing 16 Letter Motion from Amanda Kuryluk for State of New York requesting one week extension of time to respond to the Complaint submitted to Judge Sharpe on consent. (Kuryluk, Amanda) |
| Filing 15 NOTICE of Appearance by Amanda K. Kuryluk on behalf of All Defendants (Kuryluk, Amanda) |
| Filing 14 NOTICE of Appearance by Christian Kernkamp on behalf of Variscite NY One, Inc. (Kernkamp, Christian) |
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Filing 13
TEXT ONLY ORDER - Pending is defendants' letter motion, with the consent of plaintiff, seeking an extension of time to respond plaintiff's motion for injunctive relief "so long as [p]laintiff has an opportunity to file a reply brief." (Dkt. No. 12.) The letter motion is GRANTED. Defendants shall file response papers to the pending motion on or before October 21, 2022. The legal argument section of defendants' response papers shall not exceed fifteen pages in length. Plaintiff may file a reply, not to exceed three pages in length, within three business days thereafter. The return on the motion is ADJOURNED sine die. IT IS SO ORDERED. Issued by Senior Judge Gary L. Sharpe on 10/6/2022. (jel, )
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| Filing 12 Letter Motion from Defendants for Christopher Alexander, New York State Office of Cannabis Management, State of New York requesting adjournment of hearing and extension of time to respond to Plaintiff's motion for preliminary injunction submitted to Judge Sharpe . (Gallagher, Matthew) |
| Filing 11 NOTICE of Appearance by Matthew Gallagher on behalf of All Defendants (Gallagher, Matthew) |
| Filing 10 CERTIFICATE OF SERVICE by Variscite NY One, Inc. re #6 Emergency MOTION for Preliminary Injunction 10-4-2022 filed by Variscite NY One, Inc.. Motion returnable before Judge Hon. Gary L. SharpeEmergency MOTION for Temporary Restraining Order 10-4-2022, #2 Summons Issued, #3 G.O. 25 Filing Order, 9 Order,,,,,,,,, and Complaint #1 (Attachments: #1 Exhibit(s) 10-5-2022 Cert Service (SCF_Email))(Higgs, Thomas) |
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Filing 9
TEXT ONLY ORDER - Pending is plaintiff Variscite NY One, Inc.'s application for a temporary restraining order (TRO) and preliminary injunction brought by order to show cause. (Dkt. No. 6.) Variscite seeks temporary injunctive relief, pursuant to Rule 65(b) of the Federal Rules of Civil Procedure, to enjoin defendants State of New York, New York State Office of Cannabis Management (NYOCM), and Christopher Alexander, the executive officer of NYOCM from "issuing any cannabis license under the [conditional adult-use retail dispensary (CAURD)] application program held from August 25 to September 26, 2022, for the following geographic areas: Finger Lakes; Central New York; Western New York; Mid-Hudson; and Manhattan." (Id. at 2.) In support of its application, Variscite asserts, through counsel, that notice of the motion was provided to an assistant attorney general telephonically. (Dkt. No. 6, Attach. 1 5.) Counsel has since advised the court by telephone that the motion papers were not provided, and that, instead, he gave notice only that a motion was filed. In essence, Variscite seeks a TRO without notice, despite its assertion to the contrary, but has not satisfied the court that the strict requirements of Rule 65(b) have been met. Accordingly, to the extent that Variscite seeks a TRO, its application is DENIED. Additionally, it is not apparent to the court that defendants have been served with the complaint, let alone the pending motion papers. Accordingly, Variscite is hereby ORDERED to serve the complaint, motion papers, and a copy of this Text Only Order on defendants by overnight mail and electronic mail; and it is further ORDERED that Variscite shall thereafter file proof of service consistent with this Text Only Order; and it is further ORDERED that defendants shall make an appearance as soon as is practicable; and it is further ORDERED that defendants shall respond to the motion by 5:00 P.M. on Friday, October 7, 2022; and it is further ORDERED that the parties shall appear for a return on the motion, by video at a link to be provided by the court in advance, on Wednesday, October 12, 2022 at 10:00 A.M. IT IS SO ORDERED. Issued by Senior Judge Gary L. Sharpe on 10/5/2022. (jel, )
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Filing 8
TEXT ORDER granting #5 Motion for Limited Admission Pro Hac Vice. Attorney Christian E. Kernkamp is hereby admitted to practice in this actin on behalf of Plaintiff. Counsel is hereby advised that as of January 16, 2018, the NYND has converted to NextGen. Due to this conversion, you must now register for Pro Hac Vice access through your PACER account. This is the only notice you will receive concerning this requirement. You will not have access to electronically file in this case until your Pro Hac Vice request has been processed through the PACER system. Step-by-step instructions on how to complete this process are available at http://www.nynd.uscourts.gov/attorney-admissions-nextgen. Signed by Magistrate Judge Daniel J. Stewart on 10/5/2022. (mab)
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| Filing 7 10-5-2022 Letter Motion from Thomas J. Higgs, Esq. for Variscite NY One, Inc. requesting Remote Appearance submitted to Judge Hon. Gary L. Sharpe . (Higgs, Thomas) |
| ***Answer due date updated for Christopher Alexander answer due 10/26/2022; New York State Office of Cannabis Management answer due 10/26/2022; State of New York answer due 10/26/2022. (map) |
| CLERK'S CORRECTION OF DOCKET ENTRY: Clerk deleted the filing at Docket No. 8. The entry was inadvertently filed in this matter. (mab) |
| Filing 6 Emergency MOTION for Preliminary Injunction 10-4-2022 filed by Variscite NY One, Inc.. Motion returnable before Judge Hon. Gary L. Sharpe, Emergency MOTION for Temporary Restraining Order 10-4-2022 by Variscite NY One, Inc.. (Attachments: #1 Affirmation 10-4-2022 Affirmation of T. Higgs, #2 Exhibit(s) Exhibit A to TJH Affirmation, #3 Memorandum of Law 10-4-2022 MEMORANDUM OF LAW for TRO OSC PI, #4 Declaration 9-30-2022 Declaration K.Gay, #5 Exhibit(s) Exhibit 1 to K. Gay Declaration (Redacted), #6 Exhibit(s) Exhibit 2 to K. Gay Declaration (Redacted), #7 Exhibit(s) Exhibit 3 to K. Gay Declaration (Redacted), #8 Declaration 10-3-2022 Declaration J. Jensen, #9 Exhibit(s) Ex 1 Jensen Dec. 1 Website Login Page, #10 Exhibit(s) Ex 2 Jensen Dec. 2 Significant Presence_Redacted, #11 Exhibit(s) Ex 3 Jensen Dec. 3 Justice Involved_Redacted, #12 Exhibit(s) Ex 4 Jensen Dec. 4 NY Conviction_Redacted, #13 Exhibit(s) Ex 5 Jensen Dec. 5 Proof of Conviction, #14 Exhibit(s) Ex 6 Jensen Dec. 6 NY Minority Owned, #15 Exhibit(s) Ex 7 Jensen Dec. 7 Select Geographic Areas, #16 Exhibit(s) Ex 8 Jensen Dec. 8 Fifteen Areas, #17 Exhibit(s) Ex 9 Jensen Dec. 9 MI DIAs, #18 Exhibit(s) Ex 10 Jensen Dec. 10 total 150 licenses, #19 Exhibit(s) Ex 11 Jensen Dec. 11 CAURD FAQ)(Higgs, Thomas) (Additional attachment(s) added on 10/6/2022: #20 Letter with Unredacted Exhibits 1-3 to the Kenneth Gay's Declaration) (jel, ). |
| Filing 5 MOTION for Limited Admission Pro Hac Vice of Christian Kernkamp Fee Paid - Receipt #ANYNDC-6049546 (Fee is waived) (Attachments: #1 Declaration 9-28-2022 Declaration_of_Sponsor, #2 Exhibit(s) 9-27-2022 Petition for Pro Hac Vice Admission, #3 Exhibit(s) Atty Registration Form & Oath on Admission, #4 Exhibit(s) Certificate of Good Standing (CA), #5 Exhibit(s) Certificate of Good Standing (NY), #6 Proposed Order/Judgment 9-28-2022 Proposed Order for Pro Hac Vice Admission) Motions referred to Daniel J. Stewart. (Higgs, Thomas) |
| Filing 4 NOTICE OF ADMISSION REQUIREMENT as to Plaintiff's Counsel Christian E. Kernkamp, Esq., Served via email address at: ck@kernkamplaw.com. Firm phone number is: (213) 214-3030. Admissions due by 10/11/2022. (map) |
| Filing 3 G.O. 25 FILING ORDER ISSUED: Initial In-Person Rule 16 Conference set for 1/4/2023 at 10:00 AM in Albany before U.S. Magistrate Judge Daniel J. Stewart. Civil Case Management Plan must be filed and Mandatory Disclosures are to be exchanged by the parties on or before 12/28/2022. (Pursuant to Local Rule 26.2, mandatory disclosures are to be exchanged among the parties but are NOT to be filed with the Court.) (map) |
| Filing 2 Summons Issued as to Christopher Alexander, New York State Office of Cannabis Management, State of New York. (Attachments: #1 Summons Issued: New York State Office of Cannabis Management, #2 Summons Issued: State of New York)(map) |
| Filing 1 COMPLAINT FOR DORMANT COMMERCE CLAUSE AND DECLARATORY JUDGMENT against Christopher Alexander, New York State Office of Cannabis Management, State of New York (Filing fee $402 receipt number ANYNDC-6047426) filed by Variscite NY One, Inc.. (Attachments: #1 Civil Cover Sheet)(map) |
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