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 and
VARISCITE NY FIVE, LLC,
Plaintiffs,
v.
NEW YORK STATE CANNABIS CONTROL
BOARD, et al.,
Defendants.
1:23-cv-01599 (AMN/PJE)
APPEARANCES: 	OF COUNSEL:
JEFFREY M. JENSEN, PC 	JEFFREY M. JENSEN, ESQ.
9903 Santa Monica Boulevard – Suite 890
Beverly Hills, California 90212
HACKER MURPHY LLP 	THOMAS J. HIGGS, ESQ.
28 Second Street
Troy, New York 12180
Attorneys for Plaintiffs
HON. LETITIA JAMES 	BENJAMIN L. LOEFKE, ESQ.
New York State Attorney General 	RYAN W. HICKEY, ESQ.
The Capitol
Albany, New York 12224
Attorney for Defendants
Hon. Anne M. Nardacci, United States District Judge:
ORDER
I. 	INTRODUCTION
On December 18, 2023, Plaintiffs Variscite NY Four, LLC and Variscite NY Five, LLC
(“Plaintiffs”) commenced this action against Defendants New York State Cannabis Control Board,
New York State Office of Cannabis Management, Tremaine Wright, and Chris Alexander
Case 1:23-cv-01599-AMN-PJE Document 91 Filed 06/11/26 Page 1 of 6

2
(collectively “Defendants”)1 pursuant to 42 U.S.C. § 1983, alleging that New York’s Adult Use
Application Program (the “Adult Use Application Program”), which accepted applications for
adult use retail dispensary cannabis licenses (“Adult Use Licenses”) from October 4, 2023 through
December 18, 2023, violates the dormant Commerce Clause. Dkt. No. 1.2 On January 7, 2026,
Plaintiffs filed a motion to disqualify defense counsel. Dkt. No. 63 (“Motion”). In the event that
the Court declined to disqualify defense counsel, Plaintiffs asked the Court to certify the question
for interlocutory appeal to the Second Circuit pursuant to 28 U.S.C. § 1292(b). 	Id. at 11-
12.3 Defendants opposed the Motion on January 21, 2026, see Dkt. No. 65, and Plaintiffs replied
in further support of the Motion on January 23, 2026. Dkt. No. 66. This matter was referred to
United States Magistrate Judge Paul J. Evangelista, who, on May 7, 2026, issued an Order, denying
Plaintiffs’ motion to disqualify defense counsel, and a Report-Recommendation, recommending
that Plaintiffs’ request for certification of the question for interlocutory appeal be denied. Dkt. No.
75 at 14. Magistrate Judge Evangelista advised that under 28 U.S.C. § 636(b)(1), the parties had
fourteen days within which to file written objections and that failure to object to the Report-
Recommendation within fourteen days would preclude appellate review. Id. at 14-15. No party
has filed objections, and the time for filing objections has expired.
For the reasons set forth below, the Court adopts the Report-Recommendation in its
entirety.
1 Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Jessica C. Garcia and Susan
Filburn have been substituted as Defendants in place of Tremaine Wright and Chris Alexander,
who were sued solely in their official capacities. See Dkt. No. 75.
2 The Court presumes the parties’ familiarity with the underlying facts and procedural history of
this action.
3 Citations to court documents utilize the pagination generated by CM/ECF, the Court’s electronic
filing system.
Case 1:23-cv-01599-AMN-PJE Document 91 Filed 06/11/26 Page 2 of 6

3
II. 	STANDARD OF REVIEW
This Court reviews de novo those portions of a magistrate judge’s report-recommendation
that have been properly preserved with a specific objection. Petersen v. Astrue, 2 F. Supp. 3d 223,
228 (N.D.N.Y. 2012); 28 U.S.C. § 636(b)(1)(C). 	If no specific objections have been filed, this
Court reviews a magistrate judge’s report-recommendation for clear error. 	See Petersen, 2 F.
Supp. 3d at 229 (citing Fed. R. Civ. P. 72(b), Advisory Committee Notes: 1983 Addition). “When
performing such a ‘clear error’ review, ‘the court need only satisfy itself that there is no clear error
on the face of the record in order to accept the recommendation.’” Dezarea W. v. Comm’r of Soc.
Sec., No. 21-cv-1138, 2023 WL 2552452, at *1 (N.D.N.Y. Mar. 17, 2023) (quoting Canady v.
Comm’r of Soc. Sec., No. 17-cv-0367, 2017 WL 5484663, at *1 n.1 (N.D.N.Y. Nov. 14, 2017)).
III. 	DISCUSSION
Because neither party has filed any objections to the Report-Recommendation, the Court
reviews the Report-Recommendation for clear error.
“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) (internal
quotation marks omitted). 	However, as Magistrate Judge Evangelista noted, “[d]istrict court
judges have broad discretion to deny certification even where the statutory criteria are met” and
“only exceptional circumstances will justify a departure from the basic policy of postponing
appellate review until after the entry of a final judgment.” Dkt. No. 75 at 10 (quoting DeVittorio
Case 1:23-cv-01599-AMN-PJE Document 91 Filed 06/11/26 Page 3 of 6

4
v. Hall, No. 07-cv-812, 2008 WL 273981, at *2 (S.D.N.Y. Jan. 29, 2008) (internal quotation marks,
citations, and alterations omitted)).
As an initial matter, Magistrate Judge Evangelista found that the Second Circuit has not
expressly determined whether a magistrate judge has the authority to certify an order for
interlocutory appeal. Id. at 9 (citing Crown Castle NG E. LLC v. Town of Hempstead, No. 17-cv-
3148, 2019 WL 5188923, at *2 (E.D.N.Y. Oct. 15, 2019)). As such, Magistrate Judge Evangelista
concluded that the best approach for purposes of the instant case is to assume that only the
undersigned has the authority to certify questions for interlocutory appeal. Id. at 9-10 (citing, inter
alia, Culbertson, 598 F.3d at 45).
As to whether the question of law is “controlling,” Magistrate Judge Evangelista concluded
that the issue of attorney disqualification is not controlling because the issue, if reversed on appeal,
would not terminate the underlying action. Id. at 11 (citing, inter alia, Genentech, Inc. v. Novo
Nordisk A/S, 907 F. Supp. 97, 99 (S.D.N.Y. 1995) (noting that “[a] question of law is ‘controlling’
if ‘reversal of the district court’s order would terminate the action’” (quoting Klinghoffer v. S.N.C.
Achille Lauro, 921 F.2d 21, 24 (2d Cir. 1990))). Additionally, Magistrate Judge Evangelista found
that the issue of disqualification is also not controlling because it does not impact many cases. Id.
(citing, inter alia, Multi Juice, S.A. v. Snapple Beverage Corp., No. 02-cv-4635, 2003 WL
22000593, at *3 (S.D.N.Y. Aug. 20, 2003) (noting that some courts “have also found that a
question of law may be ‘controlling if it substantially affects a large number of cases’” (quoting
Genentech, 907 F. Supp. at 99))). 	Specifically, Magistrate Judge Evangelista noted that the
Variscite One case is closed, and the issue of attorney disqualification is fact-specific and does not
involve conflicting legal standards or new issues of law. 	Id. at 11-12 (citing, inter alia, Multi
Juice, 2003 WL 22000593, at *3 (denying motion for leave to file interlocutory appeal, in part,
Case 1:23-cv-01599-AMN-PJE Document 91 Filed 06/11/26 Page 4 of 6

5
because the court could not find any conflicting case law regarding differing standards for attorney
disqualification)).
Regarding whether there is a substantial ground for difference of opinion, Magistrate Judge
Evangelista found that Plaintiffs have not established a difference of opinion concerning the law
of disqualification. Id. at 12-13 (citing, inter alia, Forbes v. NAMS Int’l, Inc., No. 07-cv-39, 2007
WL 2764795, at *4 (N.D.N.Y. Sept. 20, 2007) (denying motion for interlocutory appeal, in part,
because the court was “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” (internal
quotation marks omitted)); DeVittorio, 2008 WL 273981, at *5 (noting that “[s]ubstantial 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”)).
Lastly, Magistrate Judge Evangelista noted that Plaintiff does not argue that certification
would materially advance the termination of this litigation. Id. at 13 (citing, inter alia, Multi Juice,
2003 WL 22000593, at *3 (finding that arguments regarding the avoidance of costs associated
with retaining new counsel—in the event that a court’s opinion were to be overturned on
interlocutory appeal—are “entirely unrelated” to the issue of whether an appeal will materially
advance the ultimate termination of litigation)).
After considering the parties’ arguments in light of the Second Circuit’s mandate that
Section 1292(b) certification be granted in only the rarest of cases, Magistrate Judge Evangelista
concluded that certification of an interlocutory appeal would be inappropriate in this case. Id. at
14 (citing Verizon New York v. Vill. of Westhampton Beach, No. 11-cv-252, 2014 WL 12843520,
at *14) (E.D.N.Y. Dec. 22, 2014)).
Case 1:23-cv-01599-AMN-PJE Document 91 Filed 06/11/26 Page 5 of 6

6
Having 	reviewed 	the 	Report-Recommendation 	and 	considered 	Magistrate 	Judge
Evangelista’s 	findings, 	the 	Court 	finds 	no 	clear 	error 	in 	the 	Report-Recommendation.
Accordingly, the Court adopts the Report-Recommendation in its entirety.
IV. 	CONCLUSION
Accordingly, the Court hereby
ORDERS that the Report-Recommendation, Dkt. No. 75, is ADOPTED in its entirety;
and the Court further
ORDERS that the Clerk serve a copy of this Order on all parties in accordance with the
Local Rules.
IT IS SO ORDERED.
Dated: June 11, 2026
Albany, New York
Case 1:23-cv-01599-AMN-PJE Document 91 Filed 06/11/26 Page 6 of 6