FILED: ALBANY COUNTY CLERK 01/31/2020 02:34 PM INDEX NO.

906514-19
NYSCEF DOC. NO. 140 RECEIVED NYSCEF: 01/31/2020

STATE OF NEW YORK COUNTY OF ALBANY

SUPREME COURT
In the Matter of the Application of

VAPOR TECHNOLOGY ASSOCIATION,

BENEVOLENT ELIQUIDS INC., and
PERFECTION VAPES, INC., AFFIRMATION

Index No. 906514-19

Petitioners,

NEW YORK VAPOR ASSOCIATION, INC.,

VNY MIDTOWN LLC d/b/a VAPORNY, and
PROHIBITION JUICE COMPANY, LLC,

Petitioners-Intervenors,

-against-

ANDREW M. CUOMO, Governor of the state of New York,

THE NEW YORK DEPARTMENT OF HEALTH,
HOWARD ZUCKER, M.D., Commissioner of the New
York Department of Health, THE PUBLIC HEALTH AND
HEALTH PLANNING COUNCIL, and NEW YORK
STATE POLICE,

Respondents.

For a Judgment Pursuant to Article 78 of the Civil Practice

Law and Rules in the Nature of ANNULMENT,
DECLARATORY JUDGMENT AND PRELIMINARY
AND PERMANENT INJUNCTIVE RELIEF.

Keith J. Starlin, an attorney admitted to practice in the State of New York, affirms the

following under penalty of perjury pursuant to CPLR §2106:

1. I am an Assistant Attorney General in the office of Letitia James, Attorney General

of the State of New York, attorney for Respondents.

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2. I make this Affirmation in support of Respondents’ motion seeking a stay of this

proceeding pursuant to CPLR § 2201 pending the outcome of Respondents’ appeal to the Appellate

Division, Third Department of this Court’s January 8, 2020 Decision, Order and Judgment

granting petitioners’ motion for a preliminary injunction.

3. Pursuant to CPLR § 2201, “the court in which an action is pending may grant a stay

of proceedings in a proper case, upon such terms as may be just.” "[A] court has broad discretion

to grant a stay in order to avoid the risk of inconsistent adjudications, application of proof and

potential waste of judicial resources." Matter of Tenenbaum, 81 A.D.3d 738, 739 (2d Dept. 2011)

(internal quotation marks and citation omitted). “Grounds for a stay include "further[ing] the

interest of justice by preventing inequitable results and promot[ing] orderly procedure by

furthering the goals of comity and uniformity." Matter of Adirondack Wild: Friends of the Forest

Preserve v. New York State Dep’t of Envtl. Conservation, 2019 N.Y. Misc. LEXIS 5358 * 20 –

21 (Sup. Ct. Warren County October 8, 2019), citing, Concord Assoc., L.P. v. EPT Concord, LLC,

101 A.D.3d 1574, 1575 (3rd Dept. 2012). "Where determination of a related, pending proceeding

'may dispose of or limit issues involved in [a pending] action,' a stay is proper." Matter of

Adirondack Wild, supra at * 21, citing, McCarthy v. Kerrigan, 59 Misc.3d 872, 885 (Sup. Ct.

Lawrence County 2018).

4. In its January 8, 2020 Decision, Order and Judgment (“Decision”) the Court granted

Petitioners’ motion for a preliminary injunction based largely on a legal conclusion as to the merits,

finding that the Respondents appear to have violated the “separation of powers doctrine” in

adopting the Emergency Regulation at issue in this matter.

5. Specifically, in its Decision, the Court held:

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The Council's decision to exempt tobacco- and menthol-flavored e-liquids from the
strictures of the emergency regulation evinces an intent to "construct[ ] a regulatory
scheme . . based solely upon economic and social concerns" by "weigh[ing] the goal of
promoting health against its social cost and . . . reach[ing] a suitable compromise" (Id. at
12).

Equally indicative of a violation of the separation of powers doctrine is that the Council
"did not merely fill in the details of broad legislation describing the over-all policies to be
implemented" but instead "wrote on a clean slate, creating its own comprehensive set of
rules without benefit of legislative guidance" (ld. at 13). The emergency regulation is less
an effort at filling in the blanks left by broad legislation and more an attempt to set a State
policy strictly limiting the availability of vaping products in New York. This is action
reserved constitutionally to the Legislature and not to the executive branch (nor, for that
matter, to the judiciary).

The parallels between the present case and Matter of New York Statewide Coalition of
Hispanic Chambers of Commerce v New York City Department of Health and Mental
Hygiene, (23 NY3d 681 [2014]), are striking. ln Matter of Statewide Coalition, the New
York City Board of Health, … [t]he Court stated, "By choosing between public policy
ends . . . the Board of Health engaged in law-making beyond its regulatory authority" (23
NY3d at 699). Likewise, in the present case, the Council appears to have exceeded the
scope of its authority by having adopted an emergency regulation that embodies the
policy-based trade-off between the competing ends of limiting the attraction of vaping
products to minors and allowing former or current combustible cigarette smokers the
option to continue to consume tobacco- and menthol-flavored eliquids.

(Decision, p.p. 7 - 8).

The carve-outs discussed earlier were not incorporated into the emergency regulation
because scientists or medical professionals had determined that tobacco- and menthol-
flavored e-liquids were not harmful. Rather, the emergency regulation is a statement of
public policy and not the product of biomedical research. Accordingly, the deference for
administrative action in highly technical areas is not available to respondents here.

(Decision, p.p. 8 – 9).

6. Thus, the Court has already essentially held that in its view, Respondents will not

prevail in this matter. Respondents respectfully disagree with the Court’s January 8, 2020

Decision, and interpretation of the law and facts set forth therein, and respectfully assert that

further clarification from the Appellate Division on issues regarding the “separation of powers

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doctrine”, cases such as Matter of New York Statewide Coalition of Hispanic Chambers of

Commerce and their application to the facts of the present matter is necessary for further briefing

and proceedings to prove meaningful. The issues are ripe for review by the Appellate Division,

and the Appellate Division’s resolution of the issues would be largely dispositive of the

proceeding. It is anticipated that, at the very least, a decision from the Third Department on the

Respondents’ appeal of the January 8, 2020 Decision will provide necessary clarification and

guidance needed to afford the parties a full and fair opportunity to brief issues relevant to the merits

of this action in an efficient and meaningful manner. As it stands now, barring a stay pending

clarification from the Appellate Division on the law and its application to the facts relevant to the

merits of this proceeding, the parties will soon submit voluminous papers to this Court that are

largely duplicative of those previously submitted in support of and opposition to the motion for a

preliminary injunction, all while the parties and the Court await the outcome of an appeal in this

very matter that will likely render the papers submitted by one side or the other obsolete before

this Court even issues a decision on them.

7. Notably, upon information and belief, the facts of this matter have already been

fully developed and further briefing will not lead to additional significant factual development.

8. Of further note, the preliminary injunction granted by this Court will remain in

effect while Respondents’ appeal is pending and thus the status quo will be preserved during that

time. While it is anticipated that Petitioners will argue that they may be prejudiced by a stay if the

Appellate Division vacates the preliminary injunction, any such decision by the Appellate Division

would not “prejudice” Petitioners since such a holding would establish that they were not entitled

to a preliminary injunction to begin with.

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9. In addition, while, upon information and belief, the Third Department does not set

briefing schedules, and the Uniform Appellate Division Rules give six (6) months to perfect an

appeal, the Office of the Attorney General Appeals and Opinions Bureau plans on perfecting the

appeal in question within a matter of weeks and intends to then submit a motion for a calendar

preference on the argument of the appeal to ask that it be heard on an expedited basis.

10. Here, granting a stay of the underlying proceeding until the Appellate Division

issues a decision on Respondents’ appeal will avoid the risk of inconsistent adjudications (i.e.

between this Court on the underlying Petitions and the Appellate Division going forward); avoid

waste of judicial resources; further the interests of justice and prevent inequitable results by

allowing for needed clarification by the Appellate Division on the relevant law and its application

to the facts of this matter necessary to provide the parties with an opportunity to provide this Court

with meaningful briefing on an issue of significant importance going forward (i.e. briefing that

will not be rendered obsolete as soon as the Appellate Division renders a decision on Respondents’

appeal).

WHEREFORE, Respondents respectfully request that this Court stay this proceeding

pursuant to CPLR § 2201 pending an outcome of Respondents’ appeal of the Court’s January 8,

2020 Decision, Order and Judgment, together with such other and further relief as the Court deems

just and proper.

Dated: Albany, New York

January 31, 2020
/s/ Keith J. Starlin
KEITH J. STARLIN

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