Kaplan v. New York State Department of Labor et al

Filing 116

ORDER granting 115 Letter Motion for Extension of Time to File. Application GRANTED. Defendant's opening papers are due on or before August 18, 2020; Plaintiff's opposition papers are due on or before September 18, 2020; and Defendant's reply papers are due on or before October 2, 2020. (Signed by Judge Katherine Polk Failla on 7/7/2020) (rro)

Case 1:18-cv-03629-KPF Document 116 Filed 07/07/20 Page 1 of 2

STATE OF NEW YORK
OFFICE OF THE ATTORNEY GENERAL
LETITIA JAMES

DIVISION OF STATE COUNSEL

ATTORNEY GENERAL

LITIGATION BUREAU
Writer’s Direct Dial: [phone]

July 6, 2020
By ECF
Honorable Katherine Polk Failla
United States District Court
Southern District of New York
40 Foley Square, Room 2103
New York, New York 10007
Re:

MEMO ENDORSED

Kaplan v. N.Y.S. Dep’t of Labor, No. 18 Civ. 3629 (KPF)

Dear Judge Failla:
This Office represents the New York State Department of Labor (“DOL”), the defendant
in the above-referenced action filed by Plaintiff Fredy Kaplan (“Plaintiff”). We respectfully
request an extension of time to file DOL’s motion for summary judgment from July 31 to August
18, 2020. This is the first request for an extension of this deadline. I have communicated with
Plaintiff’s counsel, Saul D. Zabell, Esq., who has not consented to the requested extension.
The current briefing schedule was set during the post-discovery, pre-motion conference
held on May 27, 2020. At that time, the Court granted DOL’s request to file its motion for
summary judgment by July 31. I requested that date in an attempt to accommodate several
previously scheduled and anticipated briefing deadlines. In particular, I have been primarily
responsible for briefing motions to dismiss five constitutional challenges to New York State’s
rent stabilization laws, which the real estate industry has filed in the U.S. District Courts for the
Southern and Eastern Districts of New York.1 The first two of those motions were orally argued
on June 23, 2020, after which I planned to devote most of my time to DOL’s motion in this case.
While I have begun to work on DOL’s motion, several unanticipated developments in the
rent stabilization cases have made it impracticable to complete that submission by July 31. First,
in the CHIP and 74 Pinehurst cases, the Court directed the parties to submit supplemental briefs
on four distinct issues raised during the June 23 oral arguments. The plaintiffs’ supplemental
All five complaints allege that New York’s regime of rent stabilization, as amended in 2019, effects both a
physical and regulatory taking of property without just compensation and violates landlords’ due process rights. See
Cmty. Hous. Improvement Prog. v. City of N.Y., E.D.N.Y. No. 19 Civ. 4087 (EK) (RLM) [“CHIP”]; 74 Pinehurst
LLC v. State of N.Y., E.D.N.Y. No. 19 Civ. 6447 (EK) (RLM); Building and Realty Inst. of Westchester v. State of
N.Y., S.D.N.Y. No. 19 Civ. 11285 (KMK) [“BRI”]; G-Max Mgmt., Inc. v. State of N.Y., S.D.N.Y. No. 20 Civ. 634.
(KMK); 335-7 LLC v. City of N.Y., S.D.N.Y. No. 20 Civ. 1053 (ER).
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28 LIBERTY STREET, NEW YORK, NY 10005 ● PHONE [phone] ● WWW.AG.NY.GOV

Case 1:18-cv-03629-KPF Document 116 Filed 07/07/20 Page 2 of 2
Hon. Katherine Polk Failla
Page 2 of 2
July 6, 2020
briefs are due July 10. The State Defendants2, represented by the undersigned counsel, are due to
file their response by July 17. Separately, in the past week, I reached an impasse with Plaintiff’s
counsel in the 74 Pinehurst action regarding a jurisdictional issue, which will necessitate further
supplemental briefing on the issue of sovereign immunity under the Eleventh Amendment. We
also were compelled to file a brief opposing a landlord’s motion to intervene in BRI on July 3.
We are due to oppose another such motion filed by a different property owner in 335-7 LLC by
July 24 – which is also State Defendants’ deadline to file their reply brief in support of their
motion to dismiss the same action.
Despite these obligations, I anticipate being able to complete DOL’s summary judgment
submission by mid-August. As such, DOL respectfully requests an extension of the July 31
motion deadline to August 18, 2020. We would consent to a commensurate extension of time for
Plaintiffs’ opposition (currently August 21, 2020) and DOL’s reply (currently September 11,
2020). Alternatively, we would consent to any reasonable extension that Plaintiff may request.
Pursuant to Section 2.D of the Court’s Individual Rules of Practice in Civil Cases, DOL
is required to state “whether the adversary consents” to a proposed extension of time, “and, if
not, the reasons given by the adversary for refusing to consent.” I emailed Mr. Zabell today,
requesting his consent. His response stated, in its entirety: “Really? You have a full team at your
disposal and were granted additional time by the court when you requested it?” Contrary to Mr.
Zabell’s email, I am the only assistant attorney general assigned to this matter.
We respectfully request that the Court grant the extension sought on behalf of DOL. We
appreciate Your Honor’s continued attention to this matter.
Respectfully,
/s/
Michael A. Berg
Assistant Attorney General
cc: Saul D. Zabell, Esq.
Ryan T. Biesenbach, Esq.
Application GRANTED. Defendant's opening papers are due on or before August
18, 2020; Plaintiff's opposition papers are due on or before September 18,
2020; and Defendant's reply papers are due on or before October 2, 2020.
SO ORDERED.
Dated:
July 7, 2020
New York, New York

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HON. KATHERINE POLK FAILLA
UNITED STATES DISTRICT JUDGE

In the rent stabilization cases, this office represents the State of New York, its Division of Housing and
Community Renewal (“DHCR”), DHCR Commissioner RuthAnne Visnauskas, DHCR Deputy Commissioner
Woody Pascal, and Attorney General Letitia James (collectively, “State Defendants”).