Hayes v. Condlin et al

Filing 4

ORDER. Plaintiff's request for preliminary injunctive relief is denied without prejudice to renewal at a later time. The Court certifies under 28 U.S.C. 1915(a)(3) that any appeal from this order would not be taken in good faith, and therefore in forma pauperis status is denied for the purpose of an appeal. Cf. Coppedge v. United States, 369 U.S. 438, 444-45 (1962) (holding that an appellant demonstrates good faith when he seeks review of a nonfrivolous issue). SO ORDERED. (Signed by Judge Kenneth M. Karas on 9/19/22) (yv)

Case 7:22-cv-07295-KMK Document 4 Filed 09/19/22 Page 1 of 2

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
EARL HAYES,
Plaintiff,
-againstBRADY CONDLIN; STEVEN SCHMOKE,

No. 22-CV-7295 (KMK)
ORDER

Defendants.
KENNETH M. KARAS, United States District Judge:
Plaintiff, who is proceeding pro se, has filed a motion requesting preliminary injunctive
relief. To obtain such relief, Plaintiff must show: (1) that he is likely to suffer “irreparable harm”
and (2) either (a) a “likelihood of success on the merits” of his case or (b) “sufficiently serious
questions going to the merits to make them a fair ground for litigation and a balance of hardships
tipping decidedly” in his favor. UBS Fin. Servs., Inc. v. W.V. Univ. Hosps., Inc., 660 F. 3d 643,
648 (2d Cir. 2011) (citation and quotation marks omitted); Wright v. Giuliani, 230 F.3d 543, 547
(2000) (articulating the same considerations). Preliminary injunctive relief “is an extraordinary
and drastic remedy, one that should not be granted unless the movant, by a clear showing, carries
the burden of persuasion.” Moore v. Consol. Edison Co. of N.Y., Inc., 409 F.3d 506, 510 (2d Cir.
2005) (quotation marks omitted) (quoting Mazurek v. Armstrong, 520 U.S. 968, 972 (1997)).
Plaintiff’s submission does not demonstrate that he is likely to suffer irreparable harm.
The Court interprets Plaintiff’s submission such that the basis for the preliminary injunction is
that the enforcement of New York’s cigarette tax law is unconstitutional. In short, the harm
allegedly visited upon Plaintiff—the enforcement of this law— is not ongoing, nor has Plaintiff
put forward allegations establishing the law will likely be enforced against him again.
Additionally, Plaintiff has failed to demonstrate that he cannot be compensated monetarily

Case 7:22-cv-07295-KMK Document 4 Filed 09/19/22 Page 2 of 2

should such a scenario come to pass—indeed, Plaintiff overtly requests such a financial remedy.
Finally, Plaintiff’s submission fails to suggest a likelihood of success on the merits of the
constitutionality of the underlying question of the issue, namely the enforcement of the state law
cigarette tax, to make them a fair ground for litigation and a balance of hardships tipping
decidedly in his favor. Accordingly, Plaintiff’s request for preliminary injunctive relief is denied
without prejudice to renewal at a later time. The Court will address the merits of the complaint
in due course.
CONCLUSION
Plaintiff’s request for preliminary injunctive relief is denied without prejudice to renewal
at a later time.
The Court certifies under 28 U.S.C. § 1915(a)(3) that any appeal from this order would
not be taken in good faith, and therefore in forma pauperis status is denied for the purpose of an
appeal. Cf. Coppedge v. United States, 369 U.S. 438, 444-45 (1962) (holding that an appellant
demonstrates good faith when he seeks review of a nonfrivolous issue).
SO ORDERED.
Dated:

September 19, 2022
White Plains, New York
KENNETH M. KARAS
United States District Judge

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