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Three lawsuits that sought to yet again stop New York’s adult-use cannabis licensing program in its tracks have failed to move three different judges to that end. Orders filed in each case over the past week permit the program to proceed without immediate interruption, including the decision issued today (2/8) by U.S. District Judge Glenn T Suddaby denying the motion for a TRO requested in Valencia AG v. NYS OCM et al.
The following Order was filed in that case:
TEXT ORDER denying Plaintiff’s motion for a temporary restraining order because, based on the current record, it has not made a sufficient showing that it will experience irreparable harm if a temporary restraining order is not in effect between the date of this Text Order and the date of a hearing and decision on its motion for a preliminary injunction. The Court renders this finding regardless of whether the required irreparable harm is a mere likelihood of irreparable harm or whether it is a strong showing of irreparable harm – although the proper standard in this case appears to be the latter (heightened) one, given that “the last actual, peaceable uncontested status which preceded the pending controversy” appears to be a period of time during which the challenged New York State law in question was in effect. LaRouche v. Kezer, 20 F.3d 68, 74, n.7 (2d Cir. 1994); accord, Mastrio v. Sebelius, 768 F.3d 116, 120 (2d Cir. 2014).
In any event, particularly lacking in evidentiary value are Paragraphs 43-47 and 49-54 of the Complaint, which are not verified, and Paragraphs 48 and 55 of the Complaint, which (although they are attempted to be incorporated by reference in counsel’s declaration) appear plagued by a lack of personal knowledge. (Dkt. No. 1, at 43-55.) Plaintiff is directed to immediately serve a copy of this Text Order on Defendants (along with its motion papers) and file an affidavit certifying such service. Defendants’ opposition papers are due TWENTY-ONE (21) DAYS after the filing of that affidavit of service, and Plaintiff’s reply papers are due SEVEN (7) DAYS after service of Defendants’ opposition papers.
In the coming days, a hearing on Plaintiff’s motion for a preliminary injunction shall be scheduled before the undersigned and will be held in person at the Federal Building & U.S. Courthouse in Syracuse, New York. The day before the hearing, each party must file a letter advising the Court of the extent to which, at the hearing, it intends to adduce evidence through live witness testimony and exhibits or it intends to offer only oral argument (in which case it would rely on the declarations and exhibits adduced in its motion papers). SO ORDERED by U.S. District Judge Glenn T Suddaby on 2/8/2024. (Entered: 02/08/2024)
The meaning of the ruling was immediately apparent to New York’s legal community. “OCM is now 3 for 3 in the latest string of lawsuits,” wrote attorney Fatima Afia on LinkedIn. “The writing is on the wall: courts are less willing to disturb OCM regulations and application processes when application windows have now been opened to the public at large and application review is underway.”
The two other cases are the Variscite NY Four lawsuit – in which Judge Nardacci on Friday denied the plaintiffs request for a TRO and Preliminary Injunction, finding that “enjoining Defendants from issuing licenses under the Adult Use or CAURD Application Programs would not serve the public interest, and that the balance of equities tips in favor of Defendants,” – and the Friendly Flower 1 lawsuit, in which Judge Justin Corcoran issued an Order, also on Friday, for the parties to show cause in person or virtually on March 8, 2024.
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