ELFAND v. ADAMS (2025)

Order, Supreme Court, New York County (Hasa Kingo, J.), entered on or about November 18, 2024, which granted the City and State defendants' cross-motions to dismiss the complaint and denied plaintiff's motion for injunctive and declaratory relief, unanimously affirmed, without costs.

The court properly dismissed the self-represented individual plaintiff's complaint challenging the constitutionality of provisions of the Cannabis Law authorizing warrantless administrative searches and seizures of businesses engaged in the sale of cannabis.  Plaintiff concedes that the claims in the complaint, on their face, are based strictly on allegations of harms suffered by the Elfand Organization LLC d/b/a/Empire Cannabis Clubs, the entity plaintiff owns and through which he operates several unlicensed cannabis distribution centers, and on incidental financial harm suffered by that LLC's employees.  However, the individual plaintiff lacks standing to assert these claims on behalf of the LLC and its employees (see Matter of Nieblas–Love v. New York City Hous. Auth., 212 A.D.3d 509, 510, 183 N.Y.S.3d 62 [1st Dept. 2023], lv dismissed 40 N.Y.3d 973, 196 N.Y.S.3d 719, 219 N.E.3d 360 [2023];  Salt Aire Trading LLC v. Sidley Austin Brown & Wood, LLP, 93 A.D.3d 452, 453, 940 N.Y.S.2d 222 [1st Dept. 2012]).

To avoid this outcome, plaintiff maintains that the sole basis for the declaratory and injunctive relief he seeks is that he was personally detained and had his property seized.  However, these contentions were only raised for the first time in opposition to defendants' cross motions.  Although allegations asserted in post-complaint affidavits, evidence, and arguments may generally bolster or amplify allegations and claims asserted in a pleading (see Zanani v. Sutton Apts. Corp., 193 A.D.3d 536, 537, 146 N.Y.S.3d 257 [1st Dept. 2021]), those materials cannot, by themselves, properly be read into the complaint for the purpose of asserting new claims and establishing standing where the relevant allegations were never included in the complaint (see Cambridge Invs. LLC v. Prophecy Asset Mgt., LP, 188 A.D.3d 521, 521, 132 N.Y.S.3d 622 [1st Dept. 2020], lv denied 37 N.Y.3d 906, 2021 WL 4097521 [2021]).  This is so even where, as here, the complaint is one filed by a self-represented plaintiff (see Fawer v. Shipkevich PLLC, 213 A.D.3d 408, 408, 180 N.Y.S.3d 907 [1st Dept. 2023]).  Accordingly, plaintiff cannot rely on these previously unpled allegations to avoid dismissal.

Nor is plaintiff's reliance on a “void-statute” exception to the standing rule availing.  To the extent this exception permits facial constitutional challenges to be asserted even by a plaintiff who does not allege an injury-in-fact (see e.g. Matter of Daniel C., 99 A.D.2d 35, 43, 472 N.Y.S.2d 666 [2d Dept. 1984], affd 63 N.Y.2d 927, 483 N.Y.S.2d 679, 473 N.E.2d 31 [1984]), plaintiff fails to show that it is applicable under the circumstances of this case.