Case 1:11-cv-08215-KMW-GWG Document 83 Filed

USDSSONY
MEMO ENDORSED
ERIC T SCHNEIDERMAN
AnoRNEY GENERAL
ByECF
. :....
Hon. Kimba M. Wood
United States District Judge
United States Courthouse
500 Pearl Street
New York, New York 10007
STATE OF NEW YORK
OFFICE OF THE A DORNEY GENERAL
June 25, 2014
Re: Jon Jones et al. v. Eric T. Schneiderman, et al
11 Civ. 8215 (KMW)
Dear Judge Wood:
DOCUMENT
ELECTRONICALLY FILED
DOC#:

DATE FILED: O(, l3o /Zo"'t
KENT T STAUFFER
EXECUTIVE DEPUTY AITORNEY GENERAL
DIVISION OF STATE COUNSEL
LISA R DELL
ASSISTANT AITORNEY GENERAL IN CHARGE
LITIGATION BUREAU
This office represents the defendants in the above-entitled action, Eric T. Schneiderman,
in his Official Capacity as the Attorney General of the State of New York ("AG"), and Dennis
Rosen and Jeanique Green, in their Official Capacities as Commissioners of the New York State
Liquor Authority, ("SLA Commissioners"). I write to request an extension of the schedule for
making and responding to summary judgment motions provided in your Endorsed Order of June
19, 2014 (Docket# 82), which directed that such motions be filed by both sides by next
Thursday, July 3, 2014, with two-week intervals for submitting answering and reply papers.
As I explained in my letter to Your Honor dated June 5, 2014 (Docket #80), we made a
decision to seek to move for summary judgment after all discovery was completed and related
issues were resolved on May 30, 2014, and began thereafter to prepare a proposed 56.1
Statement as required in Section 2(G) of your Individual Practices. We deemed it premature,
however, to prepare actual motion papers at that time in light of the procedure described in that
Section. We thus will need to prepare and obtain signatures on multiple declarations and
complete a memorandum of law, in addition to completing the 56. l Statement. Smee your June
19 Order, we have used our best efforts to move ahead with the motion, but it has become clear
120 BROADWAY NEW YORK Ny 10271-0332 PHONE (212) 416-8610. FAX (212) 416-6075 Nor t='OR SERVICE OF PAPERS
HTIP //l/VVWV.AG NY GOV
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that the present schedule will adversely affect defendants' ability to adduce a fully developed
evidentiary record and defend the case.
Significant obstacles have arisen that have made it extraordinarily difficult for us to
complete a summary judgment motion by July 3. First, I was recently advised that my colleague
who has worked with me on this case throughout its pleading and discovery stages, Assistant
Attorney General Lisa D'Alessio, will be leaving the Attorney General's Office July 3. In
addition to drafting the defendants' answers to the 448-paragraph Second Amended Complaint,
Ms. D'Alessio has managed the document production of the defendants and of the non-party
Governor's Office, has reviewed the document production of the non-party Department of State
and State Athletic Commission and arranged for additional production by those parties, has taken
the depositions of two of the principal plaintiffs and defended the deposition of a principal
witness from the non-party Athletic Commission. She is the attorney in our office most familiar
with the facts and the documents. However, she has previously scheduled obligations this week
and next in other cases in this Court that cannot be put off - a mediation yesterday and a brief due
July 3 in Fuhrman v. Department of Health, et al., 13 cv 7213 (VLB) and an extended
teleconference with a mediator and counsel on July 2 in Park v. Department of Health, et al., 14
cv 01367 (KMK) - as well as two days this week and next that she must attend to family health
issues, that have prevented her and are continuing to prevent her from giving more than limited
assistance on the motion for summary judgment. Any successor to Ms. D' Alessio will require
time to master the complex evidentiary record and familiarize him or herself with the issues.
In addition, the attorney at the New York Department of State that has been our principal
contact with that Department and with the New York State Athletic Commission, both of which
are non-parties but are apparently a principal focus of plaintiffs' case, is out of the office this
week. Mr. Mossberg managed the document production for those agencies in response to
plaintiffs' subpoena and has been our channel of communication with the potential witnesses
employed by them, as well as the person there most familiar with the documents in their
possess10n.
Since your June 19 order, I have been attempting, with great difficulty, to canvass our
potential witnesses to determine their availability to work with us on preparing declarations for a
summary judgment motion. In addition to the absence of Mr. Mossberg, other issues with the
present motion schedule have arisen with respect to ( 1) the official at the Athletic Commission
whose job included response to public inquiries concerning the challenged statute, Glen Alleyne,
who is on a business trip to Syracuse through the end of this week, (2) the Chairperson of the
Commission, Melvina Lathan, who is unavailable on several days this week, and (c) the former
counsel to the Athletic Commission, Hugo Spindola, who is deeply involved in a project for his
present employer that will occupy him until mid-July. If we had through July to prepare the
motion, we could give the witnesses advance notice of when we would need them and work
around their schedules.
We also note that only two weeks to respond to plaintiffs' summary judgment motion is
likely to be extraordinarily difficult. Plaintiffs' preliminary 56. l Statement contains 348
paragraphs covering 54 pages, suggesting that their motion will be voluminous and filled with
factual detail, both relevant and irrelevant. Defendants will be prejudiced by the present
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schedule, since they will have insufficient time tq search the voluminous documentary record to
marshal the required proof and develop the factual record for both motions end to
address the important legal issues this case
We therefore request that the time of both plaintiffs and defendanis to move for summary
judgmtmt be from July 3 to July 31, 201'4, that the time of each aide to respond to its
adversary's motion be extended from July 17 to August 21, 2014, and that the time of each side
to reply be extended from July 3 J to September 4, 2014. This is the first request for such an
extension that has been made. Plaintiff&' counsel' has declined to consent to 11J1Y exten3ion of
time, citing the length of time the case has her client's opposition to an extenSion
and plaintiffs' compliance with your lnclividual Practices.
cc:
Jamie A. Levitt, Esq.
Morrison & Foerster LLP
250 West 55
111
Street
New York. New York 10019
Barry Friedman, Esq.
40 Washington Square South
Room 317
New York, NY 10012
(Via ECF)
Respectfull submi
/J I

John M. Schwartz
Special Litigation Counsel
Office of the Attorney General
(212) 416-8559
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