IN RE: People of State of New York (2011)

Argued—September 19, 2011

DECISION & ORDER

In a proceeding pursuant to Executive Law § 63(12) and § 175, and General Business Law §§ 349 and 350, inter alia, to permanently enjoin Perry Reich, among others, from operating, promoting, or participating in any business relating to the selling, breeding, training, boarding, or care of animals, or relating to animals in any way, Perry Reich appeals, as limited by his brief, from (1) so much of an order of the Supreme Court, Nassau County (Adams, J.), entered May 17, 2010, as denied his motion to disqualify the petitioner's Nassau County Regional Office from prosecuting this proceeding pursuant to Rules of Professional Conduct (22 NYCRR 1200.0) rule 1.7(a)(2) and rule 1.10(a) based on a conflict of interest, and (2) so much of an order of the same court entered July 12, 2010, as amended July 26, 2010, as denied his motion to compel the petitioner to respond to his demand for a bill of particulars and, upon renewal and reargument, adhered to the determination in a second order entered May 17, 2010, granting that branch of the petition which was pursuant to Executive Law § 63(12) to permanently enjoin him from selling, breeding, or training dogs, or advertising or soliciting the sale, breeding, or training of dogs, for an award of restitution, and for ancillary relief, and directed a hearing on the issues of the amount of restitution to be paid and the award of ancillary relief.

ORDERED that the notice of appeal from so much of the order entered July 12, 2010, as amended July 26, 2010, as directed a hearing on the issues of the amount of restitution to be paid and the award of ancillary relief is deemed to be an application for leave to appeal from those portions of that order (see CPLR 5701[c] ), and leave to appeal is granted;  and it is further,

ORDERED that the orders entered May 17, 2010, and July 12, 2010, as amended July 26, 2010, are affirmed insofar as appealed from;  and it is further,

ORDERED that one bill of costs is awarded to the petitioner-respondent.

In this summary proceeding, the petitioner submitted evidence establishing, prima facie, that Perry Reich (hereinafter the appellant) was an officer of a corporation that he knew had engaged “in repeated fraudulent or illegal acts or otherwise demonstrate[d] persistent fraud or illegality in the carrying on, conducting or transaction of business” (Executive Law § 63[12];  see General Business Law §§ 349, 350;  People v Apple Health & Sports Clubs, 80 N.Y.2d 803, 807;  Matter of People v. Applied Card Sys., Inc., 27 AD3d 104, 106–107;  People v. General Elec. Co., 302 A.D.2d 314, 314–315).   In opposition, the appellant failed to raise a triable issue of fact (see CPLR 409[b];  Matter of Bahar v. Schwartzreich, 204 A.D.2d 441, 443).

The Supreme Court correctly determined that the appellant was not entitled to the bill of particulars he demanded.  “The purpose of a bill of particulars is to amplify the pleadings, limit proof, and prevent surprise at trial;  it is not an evidence-gathering device” (Scalone v. Phelps Mem. Hosp. Ctr., 184 A.D.2d 65, 76;  see Hillside Equities v. UFH Apts., 297 A.D.2d 704, 705;  Sager v. Rochester Gen. Hosp., 170 A.D.2d 949;  Jericho Water Dist. v. Zara & Sons Contr.   Co., 116 A.D.2d 622, 624).   The demanded bill of particulars largely sought disclosure, rather than amplification, and it was unduly burdensome and oppressive.   Under the circumstances, the proper remedy, as the Supreme Court concluded, was to vacate, rather than prune, that demand (see 176–178 Ashburton Ave. Corp. v New York Prop. Ins. Underwriting Assn., 125 A.D.2d 653;  Nazario v. Fromchuck, 90 A.D.2d 483, 484;  cf.  Renucci v. Mercy Hosp., 124 A.D.2d 796).

The Supreme Court did not err in declining to disqualify the Nassau County Office of the Attorney General based on an alleged conflict of interest (cf.   Matter of Schumer v. Holtzman, 60 N.Y.2d 46, 55;  Matter of Soares v. Herrick, _ AD3d _, _, 2011 N.Y. Slip Op 06158,* *4–5 [3d Dept 2011] ).

The appellant's remaining contentions either are not properly before this Court, have been rendered academic, or are without merit.

Accordingly, the Supreme Court properly granted that branch of the petition which was pursuant to Executive Law § 63(12) to permanently enjoin the appellant from selling, breeding, or training dogs, or advertising or soliciting the sale, breeding, or training of dogs, for an award of restitution, and for ancillary relief.   Moreover, the Supreme Court properly referred the matter for

a hearing regarding the issues of the amount of restitution to be paid and the award of ancillary relief.

RIVERA, J.P., BALKIN, HALL and COHEN, JJ., concur.

ENTER:

Matthew G. Kiernan

Clerk of the Court