Variscite NY Four, LLC et al v. New York State Cannabis Control Board et al

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_____________________________________
VARISCITE NY FOUR, LLC; VARISCITE NY
FIVE, LLC,
Plaintiffs,
v.
No. 1:23-CV-01599
NEW YORK STATE CANNABIS CONTROL 	(AMN/PJE)
BOARD; NEW YORK STATE OFFICE OF
CANNABIS MANAGEMENT; TREMAINE
WRIGHT; CHRIS ALEXANDER;
Defendants.
_____________________________________
APPEARANCES: 	OF COUNSEL:
Jeffrey M. Jensen 	JEFFREY M. JENSEN, ESQ.
9903 Santa Monica Blvd., Ste. 890
Beverly Hills, California 90212
Attorney for plaintiffs
Hacker Murphy LLP 	THOMAS J. HIGGS, ESQ.
28 Second Street
Troy, New York 12180
Attorneys for plaintiffs
New York State Attorney General 	BENJAMIN L. LOEFKE, ESQ.
The Capitol 	RYAN W. HICKEY, ESQ.
Albany, New York 12224 	ALEXANDER POWHIDA, ESQ.
Attorney for defendants 	WILLIAM A. SCOTT, ESQ.
PAUL J. EVANGELISTA
U.S. MAGISTRATE JUDGE
ORDER & REPORT-RECOMMENDATION
I. Introduction
Plaintiffs Variscite NY Four, LLC and Variscite NY Five, LLC (collectively,
“plaintiffs” or “Variscite[,]” where appropriate) filed a letter motion on January 7, 2026,
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pursuant to New York Rule of Professional Conduct 1.12(d), seeking disqualification of
defense counsel Bejamin L. Loefke, Esq. and the Office of the New York State Attorney
General (“OAG”) and “instructing the New York State Attorney General’s office to not
share with substitute counsel any work product created after the date of Mr. Loefke’s
hiring. See Dkt. No. 63. Alternatively, should the Court deny the disqualification
request, plaintiffs seek this Court to certify, for immediate appeal, “the question” to the
Second Circuit pursuant to 28 U.S.C. § 1292(b). The facts and procedural history
underlying this case are presumed and will not be repeated here other than as
necessary.
II. Arguments
Plaintiffs argue that defense counsel Mr. Loefke, and the entire OAG, must be
disqualified from representing defendants due to a conflict of interest – Mr. Loefke’s
service as a law clerk for Judge Sharpe during the entire time he presided over Variscite
One.1 See Dkt. No. 63. Plaintiffs argue that Variscite One and Variscite Four,2 the
instant case, “involve the same defendants” because, in both cases, plaintiffs sued the
New York State Office of Cannabis Management and its executive officer, and in both
cases, the real defendant in interest is the State of New York.” Dkt. No. 63 at 2.
Further, they argue that plaintiffs’ counsel, Mr. Jensen, “owned3 between 49% and 44%
of plaintiff Variscite One during all times of the lawsuit” and owns “49% of each of
plaintiff Variscite NY Four and plaintiff Variscite NY Five.” Id. at 3. He argues that
1 Mr. Jensen provides that he discovered Mr. Loefke’s former role as Judge Sharpe’s law clerk through
Google. See Dkt. No. 63.
2 Before being assigned to District Judge Anne Nardacci, this case was assigned to Senior District Judge
Hurd. See Dkt. No. 19. Variscite Four was never assigned to Judge Sharpe.
3 Mr. Jensen indicates that he “sold his shares of Variscite One after the Variscite One litigation and has
no current interest in the company.” Dkt. No. 63 at 3 n.1.
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defendants have positioned Mr. Jensen as the “true party of interest” in Variscite One
and indicates that submissions in both cases “refer[] many times” to Mr. Jensen “in both
cases by both sides and the courts.” Id. at 3.
Plaintiffs argue that Variscite One “raised the question identical to the one in this
case: whether New York’s cannabis license application program violates the dormant
Commerce Clause.” Dkt. No. 63 at 1. Plaintiffs provide that the “Second Circuit relied
on Variscite One in deciding the Variscite Four appeal” and, during oral argument,
“analyzed at length the relevance of the facts of Variscite One to the facts of Variscite
Four.” Id. at 5.
III. Legal Standards
“‘[T]he disqualification of an attorney upon the motion of an adversary is a
serious sanction that ought not to be imposed lightly.’” Gabayzadeh v. Taylor, 639 F.
Supp. 2d 298, 300-01 (E.D.N.Y. 2009) (quoting Sea Tow Int’l, Inc. v. Pontin, No. CV-06-
3461, 2007 WL 4180679, at *1 (E.D.N.Y. Nov. 19, 2007)). “Indeed, it is well-established
that ‘[m]otions to disqualify opposing counsel are viewed with disfavor in this Circuit
because they are ‘often interposed for tactical reasons’ and result in unnecessary
delay.’” Id. (quoting Bennett Silvershein Assocs. v. Furman, 776 F.Supp. 800, 802
(S.D.N.Y. 1991)). “‘The Second Circuit has ‘been loathe to separate a client from his
chosen attorney,’ Bohack Corp. v. Gulf & Western Indus., Inc., 607 F.2d 258, 263 (2d
Cir.1979), noting that ‘[t]he delay and additional expense created by substitution of
counsel is a factor to which [it has] attached considerable significance . . . .’” Id. (first
quoting Sea Tow Int’l, Inc. v. Pontin, No. CV-06-3461, 2007 WL 4180679, at *1 then
citing Lefrak v. Arabian Am. Oil Co., 527 F.2d 1136, 1138-40 (2d Cir.1975)). “Although
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any doubts are to be resolved in favor of disqualification, see Cheng v. GAF Corp., 631
F.2d 1052, 1059 (2d Cir.1980), vacated on other grounds and remanded, 450 U.S. 903,
101 S.Ct. 1338, 67 L.Ed.2d 327 (1981), the party seeking disqualification bears a ‘heavy
burden’ of demonstrating that disqualification is warranted.” Id. (citing Evans v. Artek,
715 F.2d 788, 794 (2d Cir. 1983)).
“When deciding a motion to disqualify an attorney, federal district courts in New
York consider various sources of law, including the ABA Model Rules of Professional
Conduct, the ABA Model Code of Professional Responsibility, and the New York Code of
Professional Responsibility.” Gabayzadeh v. Taylor, 639 F. Supp. 2d 298, 301 (E.D.N.Y.
2009) (quoting Blue Planet Software, Inc. v. Games Int’l, LLC, 331 F.Supp. 2d 273, 275
(S.D.N.Y. 2004)). “However, ‘such rules merely provide general guidance and not every
violation of a disciplinary rule will necessarily lead to disqualification.’” Id. (quoting
Hempstead Video, Inc. v. Incorporated Vil. of Valley Stream, 409 F.3d 127,132 (2d Cir.
2005)); see also Hum. Elecs., Inc. v. Emerson Radio Corp., 375 F. Supp. 2d 102, 105-
06 (N.D.N.Y. 2004) (same). “Decisions regarding motions to disqualify are within the
sound discretion of the trial court.” Interiano v. Arch Specialty Ins. Co., No. CV 23-0238
(PKC) (AYS), 2025 WL 2412031, at *3 (E.D.N.Y. Aug. 20, 2025) (citing Purgess v.
Sharrock, 33 F.3d 134, 144 (2d Cir. 1994)).
Both parties agree that Rule 1.12 of the New York Rules of Professional Conduct
applies. See Dkt. Nos. 63 at 5, 65 at 6 (also citing ABA Model Rule 1.12(a)). New York
Rule of Professional Conduct 1.12, covering “specific conflicts of interest for former
judges, arbitrators, mediators or other third-party neutrals,” provides
(b) except as stated in paragraph (3), and unless all parties to the
proceeding give informed consent, confirmed in writing, a lawyer shall not
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represent 	anyone 	in 	connection 	with 	a 	matter 	in 	which 	the 	lawyer
participated personally and substantially as . . . (1) a law clerk to a judge or
other adjudicative officer or an arbitrator, mediator or other third-party
neutral.
Further, as relevant here, it provides
(d) When a lawyer is disqualified from representation under this Rule, no
lawyer in a firm with which that lawyer is associated may knowingly
undertake or continue representation in such a matter unless the firm acts
promptly 	and 	reasonably 	to: 	(1) 	notify, 	as 	appropriate, 	lawyers 	and
nonlawyer personnel within the firm that the personally disqualified lawyer
is prohibited from participating in the representation of the current client; (2)
implement effective screening procedures to prevent the flow of information
about the matter between the personally disqualified lawyer and the others
in the firm; (3) ensure that the disqualified lawyer is apportioned no part of
the fee therefrom; and (4) give written notice to the parties and any
appropriate tribunal to enable it to ascertain compliance with the provisions
of this Rule, except that if the notice would disclose confidential information
protected by Rule 1.6, the notice may be temporarily postponed but shall
be sent promptly after such confidential information is known to the parties
and tribunal or is otherwise no longer protected by Rule 1.6.
Id.
N.Y. Comp. Codes R. & Regs. Tit. 22 § 1200.0.
“[T]he disqualification of an attorney is a matter which rests within the sound
discretion of the court. A party's entitlement to be represented in ongoing
litigation by counsel of his or her own choosing is a valued right which
should not be abridged absent a clear showing that disqualification is
warranted, and the movant bears the burden on the motion” (Campolongo
v. Campolongo, 2 A.D.3d 476, 476, 768 N.Y.S.2d 498 [citations omitted];
see Matter of Nenninger v. Kelly, 140 A.D.3d 961, 963, 34 N.Y.S.3d 131;
Matter of Aaron W. v. Shannon W., 96 A.D.3d 960, 962, 946 N.Y.S.2d 648).
“However, the right to be represented by counsel of one's own choosing ‘will
not supersede a clear showing that disqualification is warranted’” (Gjoni v.
Swan Club, Inc., 134 A.D.3d 896, 897, 21 N.Y.S.3d 341, quoting Matter of
Marvin Q., 45 A.D.3d 852, 853, 846 N.Y.S.2d 356; see Scopin v. Goolsby,
88 A.D.3d 782, 784, 930 N.Y.S.2d 639).
Rovner v. Rantzer, 145 A.D.3d 1016, 1016, 44 N.Y.S.3d 172, 173 (2016). Although
“decisions on disqualification motions often benefit from guidance offered by the
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American Bar Association (ABA) and state disciplinary rules . . . such rules merely
provide general guidance and not every violation of a disciplinary rule will necessarily
lead to disqualification.” Hempstead Video, 409 F.3d at 132; accord United States
Football League v. Nat’l Football League, 605 F.Supp. 1448, 1463 n.31 (S.D.N.Y. 1985).
IV. Discussion
A. Motion to Disqualify
The rationale underlying plaintiffs’ argument appears to be, because Variscite
One and the instant case, Variscite Four have (1) the same owner-plaintiff and counsel,
(2) some of the same defendants, and (3) are challenging a similar law as a violation of
the Commerce Clause, they are essentially the same case; thus, Mr. Loefke’s potential
work on or access to Variscite One gives defendants an unfair advantage in litigating
Variscite Four. However, plaintiffs’ argument is flawed for two reasons. First, these are
not the same cases. Second, plaintiffs have not identified any tactical advantage or trial
taint that may arise from Mr. Loefke’s potential work or access to Variscite One. The
appearance of impropriety is not present because Variscite Four is a new case before a
different judge.
That all of the cases plaintiffs cite are distinguishable further bolsters this Court’s
holding. See Dkt. No. 63 at 7, 9 (citing cases). In Monument Bilders of Pennsylvania,
Inc., the plaintiff’s counsel had clerked for the same judge as the one presiding over a
“subsequent action alleging breach of settlement agreements reached in first suit.” 190
F.R.D. 164 (E.D. Pa 1999). Here, this action is before a different judge, and plaintiffs
present no supported argument that there is any kind of advantage that could arise
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through Mr. Loefke’s potential past work or access to information in the earlier Variscite
case. In People v. Thornton, 182 N.Y.S.3d 374, 375 (N.Y. App. Div. 2025), the
defendant’s motion to vacate was pending before a judge whose law clerk, in her former
role as the district attorney, indicted, prosecuted, and convicted the defendant in
question. Similarly, People v. Roshia, 169 N.Y.S. 3d 400, 401 (N.Y. App. Div. 2022) is a
criminal case where the defendant was appealing the denial of his motion to vacate his
judgment of conviction. There, the judge’s law clerk “had direct involvement in
defendant’s case during her tenure as the District Attorney” and the defendant raised
concerns in his CPL 440 motion about the law clerk’s conduct while she was
prosecuting him. See id. 	In People v. Pica-Torres, 210 N.Y.S. 3d 530, 531 (NY App.
Div. 2024), on appeal from a criminal conviction, the Appellate Division observed that
the assistant district attorney representing the prosecution was the presiding trial
judge’s law clerk during the trial.
The distinctions between the Thornton, Roshia, and Pica-Torres cases and this
case are so obvious, the Court should not need to elaborate. However, for purposes of
completeness: all of those cases were criminal cases, continuations/appeals of the
same case, and were before the same judge and the law clerk in question was either
the presiding judge’s law clerk or the prosecutor on that case at an earlier stage of the
same action. Similarly, plaintiffs’ reliance on Wallach v. Rothschild, 241 A.D.3d 600
(N.Y. App. Div. 2025) is distinguishable. In Wallach, the defendant moved for the
judge’s recusal as her principal law clerk was married to a partner at the law firm
representing the plaintiff. Noting that the judge would be required to decide whether to
award attorney’s fees to the law firm where the law clerk’s spouse worked, the Appellate
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Division held that it would have been “‘better practice for the trial judge to recuse herself
in a special effort to maintain the appearance of impartiality in this case.’” Id. at 601.
Disqualification is only required if there is a significant risk of trial taint. See
Glueck v. Jonathan Logan, Inc., 653 F.2d 746, 748 (2d Cir.1981) (citing Armstrong v.
McAlpin, 625 F.2d 433, 444-46 (2d Cir.1980) (en banc), vacated on other grounds and
remanded, 449 U.S. 1106 (1981). Although plaintiffs explain how Variscite One and
Variscite Four are similar, involving similar parties, and raising similar legal challenges,
they do not explain how the trial would be tainted if Mr. Loefke remained defense
counsel. 	Disqualification may be warranted if Mr. Loefke had inner knowledge of the
presiding judge’s thought processes or if he could potentially use information he gained
while clerking for Judge Sharpe to his advantage in defending Variscite Four. See, e.g.,
Cypress Holdings, III, LP v. Sport-BLX, Inc., No. 22 CIV. 1243 (LGS), 2022 WL
4239937, at *3 (S.D.N.Y. Aug. 23, 2022) (quoting Bobal v. Rensselaer Polytechnic Inst.,
916 F.2d 759, 764-65 (2d Cir. 1990) (alterations omitted) (“[D]isqualification has been
ordered only in essentially two kinds of cases,” including ‘where the attorney is at least
potentially in a position to use privileged information concerning the other side through
prior representation.’”). Recognizing that “[l]aw clerks are simply extensions of the
judges at whose pleasure they serve[,]” Wallach, 241 A.D.3d at 601 (quoting People v.
Suazo, 120 A.D.3d 1270, 1272 (N.Y. App. Div. 2014), even if Mr. Loefke worked on
Variscite One while serving as Judge Sharpe’s law clerk, (1) he never clerked for Judge
Nardacci, the judge presiding over this case; and (2) even though similar, Variscite Four
is not the same “matter.” The Court is at a loss to see how defendants would potentially
benefit or what appearance of impropriety exists from the fact that Mr. Loefke may have
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worked on the now-closed Variscite One. Plaintiffs have pointed to no nonpublic
information or documents that Mr. Loefke would likely have been privy to while clerking
for Judge Sharpe that are relevant to Variscite Four. 	Plaintiffs have identified no party
interest that could be considered exploited should Mr. Loefke be permitted to defend
this case.
Following plaintiffs’ rationale, Mr. Loefke would be unable to defend the OAG if,
during his time as a law clerk, a party appeared before Judge Sharpe and later
commenced a similar case before a different judge in the Northern District.4 As plaintiffs
have failed to carry their heavy burden of demonstrating disqualification of Mr. Loefke or
the OAG is warranted, their motion is denied.
B. Interlocutory Appeal
The Court next addresses plaintiffs’ request for certification of an interlocutory
appeal under 28 U.S.C. § 1292(b). As a threshold issue, “the Second Circuit has not
expressly held that a magistrate judge has authority to certify a question for appeal[.]”
Crown Castle NG E. LLC v. Town of Hempstead, No. CV 17-3148 (GRB), 2019 WL
5188923, at *2 (E.D.N.Y. Oct. 15, 2019). Although the undersigned recognizes that
“several courts that have considered this question have so determined,” id. (citing
Verizon New York Inc. v. Vill. of Westhampton Beach, No. CV 11-252 (AKT), 2014 WL
12843520, at *6, n.6 (E.D.N.Y. Dec. 22, 2014) (citing cases)), the undersigned
concludes that the better approach is by way of a recommendation to the District
4 Indeed, given this District’s extensive inmate litigation docket, it would not be unlikely to have a
scenario where a pro se plaintiff sues the New York State Department of Corrections and Community
Supervision, who the OAG defends in such actions, the case was before Judge Sharpe, and some time
thereafter, the inmate brings a new action either against the same defendant or similar defendants
alleging similar misconduct years later. 	Similarly, this could also occur where it is a different plaintiff but
the same underlying incident and defendants.
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Judge.5 	“When a district judge, in making in a civil action an order not otherwise
appealable under this section, shall be of the opinion that such order involves a
controlling question of law as to which there is substantial ground for difference of
opinion and that an immediate appeal from the order may materially advance the
ultimate termination of the litigation, he shall so state in writing in such order.” 28 U.S.C.
§ 1292(b).
“District court judges have broad discretion to deny certification even where
the statutory criteria are met.” Estevez-Yalcin v. The Children's Vill., 2006
WL 3420833, at *1 (S.D.N.Y. Nov. 27, 2006) (internal quotation marks and
citation omitted). The Second Circuit Court of Appeals has consistently
instructed district courts to “exercise great care in making a § 1292(b)
certification.” Westwood Pharm., Inc. v. Nat’l Fuel Gas Distribution Corp.,
964 F.2d 85, 89 (2d Cir.1992); see also Klinghoffer v. S.N.C Achille Lauro,
921 	F.2d 	21, 	25 	(2d 	Cir.1990) 	(noting 	that 	“the 	power 	[to 	grant 	an
interlocutory appeal] must be strictly limited to the precise conditions stated
in the law”) (internal quotation marks and citation omitted). Thus “only
‘exceptional circumstances [will] justify a departure from the basic policy of
postponing appellate review until after the entry of a final judgment.’”
Klinghoffer, 921 F.2d at 25 (quoting Coopers & Lybrand, 437 U.S. 463, 475
(1978)); see Flaherty v. Filardi, 2007 WL 1827841, at *1 (S.D.N.Y. June 26,
2007) (“Interlocutory appeals under [this section] are an exception to the
general policy against piecemeal appellate review embodied in the final
judgment rule.”) (internal quotation marks and citation omitted).
DeVittorio v. Hall, No. 07 CIV.0812 (WCC), 2008 WL 273981, at *2 (S.D.N.Y. Jan. 29,
2008).
1. Controlling Question of Law
Plaintiffs argue that the
conflict arises in the context of a constitutional right in a question of first
impression. 	That satisfies the Section 1292(b) standard of “involving a
controlling question of law as to which there is substantial ground for
5 Discretionary jurisdiction is conferred upon courts of appeals, pursuant to 28 U.S.C. § 1292(b), to
consider interlocutory orders where the district judge is “of the opinion that such order involves a
controlling question of law as to which there is substantial ground for difference of opinion and that
an immediate appeal from the order may materially advance the ultimate termination of the
litigation.” United States v. Culbertson, 598 F.3d 40, 45 (2d Cir. 2010) (emphasis added).
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difference of opinion and that an immediate appeal from the order may
materially advance the ultimate termination of the litigation.”
Dkt. No. 63 at 12.
“A question of law is ‘controlling’ if ‘reversal of the district court’s order
would terminate the action.” Genentech, Inc. v. Novo Nordisk A/S, 907 F. Supp.
97, 99 (S.D.N.Y. 1995) (quoting Klinghoffer v. S.N.C. Achille Lauro, 921 F.2d 21,
24 (2d Cir. 1990)). 	Moreover, “[a] controlling legal issue is a question of law, not
one of factual dispute where the court applies well-settled legal principles.”
DeVittorio, 2008 WL 273981, at *2. 	This factor is not met as the disqualification
issue, if reversed on appeal, would not terminate the underlying action. 	See id.;
see also id. (quoting Esteves-Yalvin v. The Children’s Vil., 01-CV-8784 (KMK),
2006 WL 3420833 (S.D.N.Y. Nov. 27, 2006) (“‘But a litigant, who is dissatisfied with
a court ruling, may not utilize § 1292(b) as a means for securing early resolution
of disputes concerning whether the trial court properly applied the law to the
facts.’”).
“Although not required, courts in this district have also found that a question
of law may be ‘controlling’ if it substantially affects a large number of cases.’” Multi
Juice, S.A. v. Snapple Beverage Corp., No. 02 CIV. 4635 (RPP), 2003 WL
22000593, at *3 (S.D.N.Y. Aug. 20, 2003) (quoting Genentech, Inc., 907 F.Supp.
at 99). Even if plaintiffs had argued that the law in question is controlling for this
reason, the undersigned does not see this case as impacting many cases. See id.
Verascite One is closed, and “because this decision was fact specific and did not
involve conflicting legal standards or new issues of law, we find it would have little
precedential value for future attorney conflict cases.” DeVittorio, 2008 WL 273981,
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at *4; see also Multi Juice, S.A., 2003 WL 22000593, at *3 (“Plaintiffs cite no
conflicting 	caselaw 	in 	this 	Circuit 	regarding 	differing 	standards 	for 	attorney
qualification, and this Court could find none. To this end, there is not a ‘substantial
ground 	for 	difference 	of 	opinion’ 	regarding 	law 	that 	governs 	attorney
disqualification.”).
2. Substantial Ground for Difference of Opinion
The undersigned is further unconvinced that there is a substantial ground for
difference of opinion about a controlling question of law. The undersigned understands
this portion of the statute to ask whether there is a difference of opinion about the law,
not about the Court’s holding. See Genentech, Inc., 907 F. Supp. at 99-100 (internal
citation omitted) (“Novo has not established that there is ‘substantial ground for
difference of opinion’ concerning the law of disqualification as it relates to this case.
First, Novo has not cited conflicting legal authority to persuade the court that there
exists substantial doubt about the law. Second, Novo’s assertion that the issue
presented has specific importance to the litigation of patent cases is unconvincing. This
issue simply requires the application of well-settled conflict-of-interest rules, arising in all
types of litigation.”); see also DeVittorio, 2008 WL 273981, at *5 (citing Compania
Sudamericana de Vapores S.A. v. Sinochem Tianjin Co., 2007 WL 1002265, at *5
(S.D.N.Y. Apr. 4, 2007) (“Substantial doubt about the law requires more than
defendants’ argument that another court would have reached a different conclusion
when applying the law to the facts of the case. We therefore conclude that there is no
substantial difference of opinion about the applicable law.”)); Verizon New York Inc. v.
Vill. of Westhampton Beach, No. CV 11-252 (AKT), 2014 WL 12843520, at *14
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(E.D.N.Y. Dec. 22, 2014) (“Unlike some of the cases cited by Westhampton Beach, the
‘controlling question’ presented here does not concern a threshold jurisdictional issue,
see Klinghoffer v. S.N.C. Anchille Lauro, 921 F.2d 21, 24 (2d Cir. 1990), or a procedural
determination that could dispose of this case, see In re Duplan Corp., 591 F.2d 139, 148
n. 11 (2d Cir. 1978).”); Forbes v. NAMS Int’l, Inc., No. 07-CV-0039 (TJM), 2007 WL
2764795, at *4 (N.D.N.Y. Sept. 20, 2007) (in denying motion for interlocutory appeal, the
Court stated it “is not of the opinion that the disqualification motion involves a controlling
question of law as “to which there is substantial ground for difference of opinion.”).
3. Material Advancement of the Ultimate Termination of the Litigation
Plaintiff proffers no argument that termination of the litigation would be materially
advanced by certification. 	See Genetech, Inc., 907 F. Supp. At 100 (finding the
defendant’s argument “that retaining new counsel is a time-consuming endeavor” and
that certification would not delay litigation did not suffice to demonstrate “materially
advance” prong as certification would not expedite litigation and its argument that
defendant’s right to counsel would be reserved “misconstrues the third requirement of
section 1292(b).”); see also Multi Juice, S.A., 2003 WL 22000593, at *3 (holding, where
Court was denying interlocutory appeal on grant of motion to disqualify counsel,
considerations of avoiding expense of obtaining new counsel should the matter be
overturned on interlocutory appeal or the time it might take to find substitute counsel
were “entirely unrelated to whether or not such an appeal” would materially advance the
ultimate termination of the litigation under section 1292(b)).6
6 Prevezon Holdings Ltd., which plaintiffs cite, does not require a different result. There, defendants
sought mandamus relief regarding their disqualification dispute, where a different standard of review was
applied. See Dkt. No. 63 at 12 (citing United States v. Prevezon Holdings, Ltd., 839 F.2d 227, 229 (2d Cir.
2016) (granting mandamus relief).
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“Having considered the parties' arguments in light of these standards – as well as
the Second Circuit's mandate that Section 1292(b) relief be granted in only the rarest of
cases – the Court finds that certification of an interlocutory appeal would be
inappropriate at this time.” Verizon New York Inc., 2014 WL 12843520, at *14.
V. Conclusion
WHEREFORE, for the reasons set forth herein, plaintiffs’ letter motion, dkt. no.
63, is decided as follows:
Part I:
It is hereby ORDERED, that plaintiffs’ motion to disqualify defense counsel is
DENIED; and it is further
ORDERED, that, after entry of this Order & Report-Recommendation, the Clerk
update the caption to replace Tremaine Wright with Jessica C. Garcia and to replace
Chris Alexander with Susan Filburn.7
Part II:
It is hereby RECOMMENDED, that plaintiffs’ request for certification of
interlocutory appeal pursuant to 28 U.S.C. § 1292(b) be DENIED. Pursuant to 28
U.S.C. § 636(b)(1), plaintiff has FOURTEEN (14) days within which to file written
objections to the foregoing report. Such objections shall be filed with the Clerk of the
Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN (14) DAYS
WILL PRECLUDE APPELLATE REVIEW. See Roldan v. Racette, 984 F.2d 85, 89 (2d
7 See Dkt. No. 65 at 1 n.1-2 (citing F ED. R. C IV . P. 25(d)).
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Cir. 1993) (citing Small v. Sec’y of Health and Human Servs., 892 F.2d 15 (2d Cir.
1989)); see also 28 U.S.C. § 636(b)(1); FED. R. CIV . P. 6(a), 728; and it is
ORDERED, that the Clerk serve this Order & Report-Recommendation on the
parties in accordance with Local Rules.
Dated: May 7, 2026
Albany, New York
8 The objection language is intended to apply only to Part II as it is only this portion that is a
recommendation.
Case 1:23-cv-01599-AMN-PJE Document 75 Filed 05/07/26 Page 15 of 15