FILED: NEW YORK COUNTY CLERK 02/26/ :06 PM INDEX NO /2015 NYSCEF DOC. NO. 109 RECEIVED NYSCEF: 02/26/2016

Transcription

1 FILED: NEW YORK COUNTY CLERK 02/26/ :06 PM INDEX NO /2015 NYSCEF DOC. NO. 109 RECEIVED NYSCEF: 02/26/2016 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK NATIONAL RESTAURANT ASSOCIATION, -against- Plaintiff-Petitioner, THE NEW YORK CITY DEPARTMENT OF HEALTH & MENTAL HYGIENE, THE NEW YORK CITY BOARD OF HEALTH; and DR. MARY TRAVIS BASSETT, in her Official Capacity as Commissioner of the New York City Department of Health & Mental Hygiene, Index No /2015 NOTICE OF APPEAL Hon. Eileen Rakower Defendants-Respondents. PLEASE TAKE NOTICE that Plaintiff-Petitioner, the National Restaurant Association ( Petitioner or the Association ), by its attorneys Golenbock Eiseman Assor Bell & Peskoe LLP, hereby appeals to the Appellate Division of the Supreme Court of the State of New York in and for the First Department from the Decision and Order of Justice Eileen Rakower, of the Supreme Court of New York for the County of New York, dated February 24 and 26, 2016, which denied Petitioner s Motion for a Preliminary Injunction and its Verified Article 78 & Declaratory Judgment Petition (Motion sequences 2 and 3). Notice of Entry of the foregoing Decisions and Orders was entered and served on February 26, The Plaintiff-Petitioner appeals from each and every part of those Decisions and Orders of 32

2 Dated: New York, New York February 26, 2016 Respectfully submitted, GOLENBOCK EISEMAN ASSOR BELL & PESKOE LLP By: /s/ S. Preston Ricardo Jacqueline G. Veit Elizabeth C. Conway Alexander K. Parachini 437 Madison Avenue, 35 th Floor New York, New York Attorneys for Plaintiff-Petitioner National Restaurant Association TO: Mark Muschenheim Janet Kim Corporation Counsel of the City of New York 100 Church Street, Room New York, NY Attorneys for Defendants-Respondents of 32

3 FILED: NEW YORK COUNTY CLERK 02/26/ :57 06:32 PM INDEX NO /2015 NYSCEF DOC. NO RECEIVED NYSCEF: 02/26/2016 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK NATIONAL RESTAURANT ASSOCIATION, -against- Plaintiff-Petitioner, THE NEW YORK CITY DEPARTMENT OF HEALTH & MENTAL HYGIENE, THE NEW YORK CITY BOARD OF HEALTH; and DR. MARY TRAVIS BASSETT, in her Official Capacity as Commissioner of the New York City Department of Health & Mental Hygiene, Index No /2015 NOTICE OF ENTRY Hon. Eileen Rakower Defendants-Respondents. PLEASE TAKE NOTICE that the attached is a true and correct copy of the Decision and Order of the Court (Hon. Eileen Rakower), dated February 24, 2016, and a true and accurate copy of an excerpt from the February 24, 2016, oral argument transcript containing the Court s brief record referred to therein. The Decision and Order was entered in the New York County Clerk s Office on February 26, Dated: New York, New York February 26, 2016 Respectfully submitted, GOLENBOCK EISEMAN ASSOR BELL & PESKOE LLP By: /s/ S. Preston Ricardo Jacqueline G. Veit Elizabeth C. Conway Alexander K. Parachini 437 Madison Avenue, 35 th Floor New York, New York Attorneys for Plaintiff-Petitioner National Restaurant Association of 32

4 TO: Mark Muschenheim Janet Kim Corporation Counsel of the City of New York 100 Church Street, Room New York, NY Attorneys for Defendants-Respondents of 32

5 INDEX NO /2015 NYSCEF DOC. NO. 103 RECEIVED NYSCEF: 02/26/ of 32

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15 I 5' NEW YORK STATE SUPREME COURT NEW YORK COUNTY :'CIVIL TERM PART 15 NATIONAL RESTAURANT ASSOCIATION,. -against- Plaintiff-Petitioner, THE NEW YORK CITY DEPARTMENT OF HEALTH & MENTAL HYGIENE, THE NEW YORK CITY BOARD OF HEALTH; and DR. MARY TRAVIS BASSETT, in her Official Capacity as Commissioner of the New York City Department of Health & Mental Hygiene, Index No /2015 Defendants-Respondents New York Supreme Court 71 Thomas Street New York, New York February 24, B E F 0 R E: HON. EILEEN ANN RAKOWER Supreme Court Justice A P P E A R A N C E S: GOLENBOCK, EISEMAN, ASSOR, BELL & PESKOE, LLP Attorneys for the Plaintiff-Petitioner 437 Madison Avenue New York, New York BY: S. PRESTON RICARDO, ESQ. AND: JACQUELINE G. VEIT, ESQ. AND: ELIZABETH CONWAY, ESQ of 32

16 Board of Health, whatever it may be. But the 3 irreparable harm is real, and there is no -- the 4 respondents can cite no case for the proposition that 5 just because there is a lower -- They argue there is 6 compelled information disclosure here. That the per 7 se rule for First Amendment violations for 8 irreparable harm does not apply. Thank you. 9 THE COURT: All right. So, I know you need a 10 decision very quickly, because March 1st is around 11 the corner. And while I would love to do a lengthy 12 analysis of all of this, you did an excellent job in 13 your briefings. Obviously, you didn't agree on 14 everything, but you did an excellent job in your 15 briefings. I think you covered most of the issues 16 that I would cover in the analysis. 17 I'm going to just say that I believe 18 information is power. This is not like the soda ban 19 case. The soda ban case actually bans certain sales. 20 But in this case we are providing information. 21 Information is power. Information promotes autonomy. 22 Make a different choice on the menu if you want to. 23 Some people love salty foods, and they are just going 24 to go ahead and eat those foods whether or not it has 25 a salt icon next to it. 26 I don't think that this exceeds the Zauderer 16 of 32

17 53 2 warnings that, you know, it really has to be factual 3 information. This is factual information. And 4 factual information is good to have. And I don't see 5 anything controversial. 6 There are recommended limits, daily 7 recommended limits. We're not mandating that you 8 can't have an item on the menu with more than 9 2,300 milligrams. We're not mandating that you not 10 sell combination meals, which in combination would 11 put things over the 2,300 milligram limit. It's not 12 a ban. It is information. It is a warning. And the 13 legislative history of NLEA absolutely encourages, it 14 encourages localities regarding warnings. It sets 15 out an exemption for them. I don't believe it's as 16 narrow or rare as you reported. 17 For those reasons, as well as the ones that 18 you've amplified in your briefs, I am going to deny 19 the preliminary injunction and deny the Article All right. Thank you. 21 MR. MERRILL: Thank you, your Honor. 22 MR. MUSCHENHEIM: Thank you. 23 Certified to be a true and accurate transcript of the 24 above- captioned stenographic minutes. 26 Lori Ann Sacco, Official Court Reporter 17 of 32

18 FILED: NEW YORK COUNTY CLERK 02/26/ :31 06:37 PM INDEX NO /2015 NYSCEF DOC. NO RECEIVED NYSCEF: 02/26/2016 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK NATIONAL RESTAURANT ASSOCIATION, -against- Plaintiff-Petitioner, THE NEW YORK CITY DEPARTMENT OF HEALTH & MENTAL HYGIENE, THE NEW YORK CITY BOARD OF HEALTH; and DR. MARY TRAVIS BASSETT, in her Official Capacity as Commissioner of the New York City Department of Health & Mental Hygiene, Index No /2015 NOTICE OF ENTRY Hon. Eileen Rakower Defendants-Respondents. PLEASE TAKE NOTICE that the attached is a true and correct copy of the Decision and Order of the Court (Hon. Eileen Rakower), dated February 24 and 26, 2016, and a true and accurate copy of an excerpt from the February 24, 2016, oral argument transcript containing the Court s brief record referred to therein. The Decision and Order was entered in the New York County Clerk s Office on February 26, Dated: New York, New York February 26, 2016 Respectfully submitted, GOLENBOCK EISEMAN ASSOR BELL & PESKOE LLP By: /s/ S. Preston Ricardo Jacqueline G. Veit Elizabeth C. Conway Alexander K. Parachini 437 Madison Avenue, 35 th Floor New York, New York Attorneys for Plaintiff-Petitioner National Restaurant Association of 32

19 TO: Mark Muschenheim Janet Kim Corporation Counsel of the City of New York 100 Church Street, Room New York, NY Attorneys for Defendants-Respondents of 32

20 FILED: NEW YORK COUNTY CLERK 02/26/ :24 PM INDEX NO /2015 NYSCEF DOC. NO. 104 RECEIVED NYSCEF: 02/26/ of 32

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30 I 5' NEW YORK STATE SUPREME COURT NEW YORK COUNTY :'CIVIL TERM PART 15 NATIONAL RESTAURANT ASSOCIATION,. -against- Plaintiff-Petitioner, THE NEW YORK CITY DEPARTMENT OF HEALTH & MENTAL HYGIENE, THE NEW YORK CITY BOARD OF HEALTH; and DR. MARY TRAVIS BASSETT, in her Official Capacity as Commissioner of the New York City Department of Health & Mental Hygiene, Index No /2015 Defendants-Respondents New York Supreme Court 71 Thomas Street New York, New York February 24, B E F 0 R E: HON. EILEEN ANN RAKOWER Supreme Court Justice A P P E A R A N C E S: GOLENBOCK, EISEMAN, ASSOR, BELL & PESKOE, LLP Attorneys for the Plaintiff-Petitioner 437 Madison Avenue New York, New York BY: S. PRESTON RICARDO, ESQ. AND: JACQUELINE G. VEIT, ESQ. AND: ELIZABETH CONWAY, ESQ of 32

31 Board of Health, whatever it may be. But the 3 irreparable harm is real, and there is no -- the 4 respondents can cite no case for the proposition that 5 just because there is a lower -- They argue there is 6 compelled information disclosure here. That the per 7 se rule for First Amendment violations for 8 irreparable harm does not apply. Thank you. 9 THE COURT: All right. So, I know you need a 10 decision very quickly, because March 1st is around 11 the corner. And while I would love to do a lengthy 12 analysis of all of this, you did an excellent job in 13 your briefings. Obviously, you didn't agree on 14 everything, but you did an excellent job in your 15 briefings. I think you covered most of the issues 16 that I would cover in the analysis. 17 I'm going to just say that I believe 18 information is power. This is not like the soda ban 19 case. The soda ban case actually bans certain sales. 20 But in this case we are providing information. 21 Information is power. Information promotes autonomy. 22 Make a different choice on the menu if you want to. 23 Some people love salty foods, and they are just going 24 to go ahead and eat those foods whether or not it has 25 a salt icon next to it. 26 I don't think that this exceeds the Zauderer 31 of 32

32 53 2 warnings that, you know, it really has to be factual 3 information. This is factual information. And 4 factual information is good to have. And I don't see 5 anything controversial. 6 There are recommended limits, daily 7 recommended limits. We're not mandating that you 8 can't have an item on the menu with more than 9 2,300 milligrams. We're not mandating that you not 10 sell combination meals, which in combination would 11 put things over the 2,300 milligram limit. It's not 12 a ban. It is information. It is a warning. And the 13 legislative history of NLEA absolutely encourages, it 14 encourages localities regarding warnings. It sets 15 out an exemption for them. I don't believe it's as 16 narrow or rare as you reported. 17 For those reasons, as well as the ones that 18 you've amplified in your briefs, I am going to deny 19 the preliminary injunction and deny the Article All right. Thank you. 21 MR. MERRILL: Thank you, your Honor. 22 MR. MUSCHENHEIM: Thank you. 23 Certified to be a true and accurate transcript of the 24 above- captioned stenographic minutes. 26 Lori Ann Sacco, Official Court Reporter 32 of 32