Matter of Suf Suf Phone Accessories Corp. v. City of New York

2025 NY Slip Op 31629(U)

Opinion

Matter of Suf Suf Phone Accessories Corp. v City of New York

2025 NY Slip Op 31629(U)

May 5, 2025

Supreme Court, Kings County Docket Number: Index No. 528886/2024 Judge: Inga M. O'Neale

Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication.

[FILED: KINGS COUNTY CLERK 05/05/2025 05:10 P~ INDEX NO. 528886/2024 NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 05/05/2025

At City Part 22 of the Supreme Court of the State of New York, held in and for the County of Kings, at the Courthouse, located at Civic Center, Borough of Brooklyn, City and State of New York, on the 5th day of May, 2025

Present: HON. INGA M. O'NEALE Justice, Supreme Court

In the Matter of the Application of Suf Suf Phone Accessories Corp.,

Petitioner, Cal. No.:

For a Judgment Pursuant to Article 78 of the Civil Index No.: 528886/2024 Practice Law and Rules,

-against-

City of New York et al,

Respondents.

NYSCEF Doc#

The following papers numbered 1 to _ _ read on this motion Papers Numbered Notice of Motion-Order to Show Cause And Affidavits (Affirmations) Annexed _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _,. ,_l----'-1'---'9_ _ __ Answering Affidavit (Affirmation) _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __,2=0'--_,_43"------ Reply Affidavit (Affirmation) _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __

Upon the foregoing papers, petitioner Suf Suf Phone Accessories Corp. ("petitioner")

moves, by order to show cause, for an order, pursuant to CPLR § 6301 and 6311, preliminarily enjoining respondents the City of New York and New York City Sheriff Anthony Miranda from enforcing the July 30, 2024 summons (the "summons") and sealing order (the "sealing order") of petitioner's business located at 2165 Bath Avenue in Brooklyn, New York and permitting said business to re-open pending the determination of the instant Article 78 proceeding.

Petitioner commenced the instant Article 78 proceeding, by verified petition, against respondents the City of New York, Preston Niblack, Commissioner of New York City Department of Finance, New York City Sheriff Anthony Miranda ("Sheriff') and Asim Rehman, Commissioner New York City Office of Administrative Trials and Hearings (collectively, "respondents") seeking an order: (1) vacating the September 9, 2024 decision by New York City Office of Administrative Trials and Hearings ("OATH") Hearing Officer Melanie Finkel which, after a hearing, recommended the continuation of the July 30, 2024 sealing order, as unlawful, arbitrary and capricious, and an abuse of discretion; and (2) terminating the September 13, 2024

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final sealing order ("final sealing order") closing petitioner's business for a period of one year and permitting said business to re-open.

Background

On July 30, 2024, after conducting an inspection of petitioner's business, the Sheriff issued a summons charging petitioner with the sale of cannabis without a valid license in violation of Administrative Code § 7-551 (a) (NYSCEF Doc #10). On that same date, the Sheriff issued a sealing order and immediate closure of petitioner's business on the grounds that, in violation of Administrative Code § 7-551 and 19 RCNY § 42-04, petitioner was engaged in the "unlicensed processing of cannabis" and the possession of "cannabis products not tested or labelled lawfully" in "proximity to school, house of worship, or public youth facility" (NYSCEF Doc #10).

Petitioner then requested an administrative hearing before QA TH which was subsequently held on September 9, 2024. On that same date, the Hearing Officer issued a decision finding that the sealing order was "properly issued" and further "recommend[ed] that it remain[] in place as (i) the establishment is within 1,000 feet of two schools and public park with a playground (ii) [petitioner] engaged in the unlicensed processing of cannabis and (iii) [petitioner] possessed cannabis products that were not lawfully labelled as required by the NYS Cannabis law" (NYSCEF Doc #6). The Hearing Officer further "reject[ed] [petitioner's] argument" that "[petitioner's] business sells many other products besides Cannabis products and that if it was selling cannabis it is a de minimis portion of its business" (NYSCEF Doc #6). The Sheriff issued the September 13, 2024 final sealing order closing petitioner's business for a period of one year from the date of the immediate sealing order and "adopt[ ed] the recommended decision to the extent that the ... Immediate Order of Closure was properly issued in accordance with New York City Administrative Code §7-552" (NYSCEF Doc #7).

Thereafter, petitioner commenced the instant Article 78 proceeding and moved for the relief requested herein. The instant order to show cause was signed on October 31, 2024 and the temporary restraining order was denied. Respondents interpose a verified answer and submit a memorandum of law in opposition. The parties appeared for oral argument on the instant order to show cause on March 5, 2025.

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Analysis

Article 78 Standard of Review "Generally, in a CPLR article 78 proceeding, [courts] examine whether the action taken by the agency has a rational basis'' and will overturn that action only "where it is 'taken without sound basis in reason' or 'regard to the facts'" (Matter of Wooley v. New York State Dept. ofCorrectional Servs., 15 N.Y.3d 275, 280 [2010], quoting Matter of Peckham v. Calogero, 12 NY.3d 424, 431, [2009]) "or where it is 'arbitrary and capricious"' (lgnizio v City of New York, 85 AD3d 1171, 1173 [2d Dept 2011 ], quoting Matier c~f Deerpark Farms, LLC v. Agricultural & Farmland Protection Bd. of Orange County, 70 AD3d 1037, 1038 [201 OJ). "It is not the province of the courts to second-guess thoughtful agency decisionmaking and, accordingly, an agency decision should be annulled only if it is arbitrary, capricious or unsupported by the evidence" (Matter of Riverkeeper, Inc. v. Planning Bd. of Town qf Southeast. 9 NY3d 219, 232 [2007]). Notably, " ' [w ]hile judicial review must be meaningful, the courts may not substitute their judgment for that of the agency for it is not their role to 'weigh the desirability of any action or [to] choose among alternatives'" (Matter of Riverkeeper, Inc., 9 NY3d at 232, quoting Akpan v. Koch, 75 NY2d 561, 570 [1990]) N.Y. Cannabis Law

N.Y. Cannabis Law § 125 provides, in relevant part that "(l) [n]o person shall cultivate, process, distribute for sale or sell at wholesale or retail or deliver to consumers any cannabis, cannabis product, medical cannabis or cannabinoid hemp or hemp extract product, or any product marketed or labeled as such, within the state without obtaining the appropriate registration, license, or permit therefor required by this chapter unless otherwise authorized by law.

1-a. No person shall engage in an indirect retail sale irrespective of whether such person has obtained a registration, license, or permit issued under this chapter.

1-b. Any activity conducted in violation of subdivision one or one-a of this section presents a danger public health, safety and welfare."

N.Y. Cannabis Law § 138-B (2) provides, in relevant part, that "[a]ny order to seal shall be served by delivery of the order to the owner of the business or other person of suitable age or discretion in actual or apparent control of the premises at the time of the inspection and shall be posted at the building or premises that have been sealed, secured and closed. A copy of the order

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shall also be mailed to any address for the owner of the business at any address provided by the person to whom such order was delivered pursuant to this subdivision ... "

Pursuant to N.Y. Cannabis Law§ 138-B (4), "[f]actors that determine an imminent threat to public health, safety and welfare shall be limited to: ... (e) proximity of the building or premises to schools, houses of worship, or public youth facilities ... " and other specified items. A sealing order may be issued only if, among other things, '·the unlicensed activity .. is more than a de minimis part of the business activity on the premises or in the building to be sealed pursuant to the order ... " (N.Y. Cannabis Law§ 138-B [6][6]). The factors to be considered "[i]n assessing whether unlicensed activity within a bui Iding or premises is more than de minimis ... " are noted in the provisions ofN.Y. Cannabis Law§ 138-B (7). Administrative Code

Administrative Code§ 7-55 I (a) provides, in relevant part, that "[a]ny person who engages in any conduct prohibited by subdivision one or one-a of section one hundred twenty-five of the cannabis law ... shall be subject to a civil penalty ... provided that any notice of violation and penalty may only be issued against the business that is conduction the unlicensed activity or an individual owner of the business ... " Administrative Code§ 7-551 (b) provides that the Office of the City Sheriff can enforce violations of the Cannabis law.

Administrative Code § 7-55 I (c) provides, in relevant part, that"[ v]iolations of this section may be adjudicated in a proceeding before the office of administrative trials and hearings pursuant to chapter forty-five-A of the charter, and may be adjudicated by any division or tribunal designated by such office ... "

Administrative Code § 7-552 (a) provides, in relevant part, that "[t]he office of the city sheriff shall have the authority to conduct regulatory inspections of any place of business ... where cannabis, cannabis product, or any products marketed or labeled as such, are sold, or offered to be sold, where no registration, license, or permit has been issued pursuant to the cannabis law ... "

Administrative Code § 7-552 (b) provides, in relevant part, that "[t]he office of the city sheriff shall have the authority to: ... (2) [i]ssue and execute an order to seal a building or premises where any person is engaged in conduct prohibited by section 7-551 and which either poses an imminent threat as described in subdivision four of section one hundred thirty-eight-b of the cannabis law ... Such order to seal shall be served in the same manner as section one hundred

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thirty-eight-b of the cannabis law. Such order to seal shall be referenced in the civil summons issued pursuant to section 7-551 ... " Discussion

After oral argument and upon a review of the parties' papers and the relevant law, the court finds that neither the September 9, 2024 decision recommending the continuation of the July 30, 2024 sealing order nor the final sealing order was unlawful, arbitrary and capricious and an abuse of discretion. Notably, the court cannot substitute its own judgment for that of the agency (Maner of Riverkeeper, Inc., 9 NY3d at 232). The court finds that the summons and sealing order were properly served in the underlying administrative proceeding (see CPLR 101; see 48 RCNY § 6- 08(8); see generally JES! N. Y Corp. v Martinez, 8 AD3d 667, 669 [2d Dept 2004]). Here, the Sheriff had the authority to inspect petitioner's business (see Administrative Code § 7-551 ). Petitioner's requested hearing was appropriately and timely held before OATH (see Administrative Code § 7-552). Insofar as petitioner claims that the sale of cannabis was de minimis, the court rejects said argument in light of the variety and volume of cannabis seized by the Sheriff at the subject premises (see N. Y. Cannabis Law§§ 138-b and 25).

The court will now tum to petitioner's request for a preliminary injunction. It is well settled that "[p ]reliminary injunctive relief is a drastic remedy that will not be granted unless a clear right thereto is established under the law and the undisputed facts upon the moving papers. The burden of showing an undisputed right rests upon the movant" ( Corporate Coffee Systems, LLC v R. U G. Consulting, LLC, 235 AD3d 829, 830 [2d Dept 2025]). "The party seeking a preliminary injunction must demonstrate a probability of success on the merits, danger of irreparable injury in the absence of an injunction and a balance of the equities in its favor" (Nobu Next Door, LLC v Fine Arts Hous., Inc., 4 NY3d 839, 840 [2005]; see CPLR 6301 ). "While the existence of issues of fact alone will not justify denial of a motion for a preliminary injunction, the motion should not be granted where there are issues that 'subvert the plaintiff's likelihood of success on the merits ... to such a degree that it cannot be said that the plaintiff established a clear right to relief " (Matter of Advanced Digital Sec. Solutions, inc. v Samsung Techwin Co., Ltd, 53 AD3d 612, 613 [2d Dept 2008]).

Here, petitioner has failed to demonstrate a likelihood of ultimate success on the merits or a clear right to relief based upon the variety and volume of the cannabis seized by the Sheriff. Likewise, petitioner has failed to demonstrate irreparable injury in the absence of an injunction as

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potential economic loss does not constitute irreparable harm. With respect to a balancing of the equities, the court notes the finding in the final sealing order that petitioner's business is located "within 1,000 feet of two schools and public park with a playground." In this regard, the court finds that risks to public health and safety outweigh any alleged interest claimed by petitioner. As such, petitioner's request for a preliminary injunction is denied.

Conclusion

Accordingly , the order to show cause is denied and the petition herein is dismissed. The foregoing constitutes the decision and order of the court.

For Clerks use only MG MD Motion Seq.#

Hon,ngaM. O'Neale

J.S .C.

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