| Matter of People v Imported Quality Guard Dogs, Inc. |
| 2011 NY Slip Op 07226 [88 AD3d 800] |
| October 11, 2011 |
| Appellate Division, Second Department |
| In the Matter of People of State of New York,Respondent, v Imported Quality Guard Dogs, Inc., et al., Respondents, and Perry Reich,Appellant. |
—[*1] Eric T. Schneiderman, Attorney General, New York, N.Y. (Alison Nathan and Simon Hellerof counsel), for petitioner-respondent.
In a proceeding pursuant to Executive Law § 63 (12) and § 175, and GeneralBusiness Law §§ 349 and 350, inter alia, to permanently enjoin Perry Reich, amongothers, from operating, promoting, or participating in any business relating to the selling,breeding, training, boarding, or care of animals, or relating to animals in any way, Perry Reichappeals, as limited by his brief, from (1) so much of an order of the Supreme Court, NassauCounty (Adams, J.), entered May 17, 2010, as denied his motion to disqualify the petitioner'sNassau County Regional Office from prosecuting this proceeding pursuant to Rules ofProfessional Conduct (22 NYCRR 1200.0) rule 1.7 (a) (2) and rule 1.10 (a) based on a conflict ofinterest, and (2) so much of an order of the same court entered July 12, 2010, as amended July26, 2010, as denied his motion to compel the petitioner to respond to his demand for a bill ofparticulars and, upon renewal and reargument, adhered to the determination in a second orderentered May 17, 2010, granting that branch of the petition which was pursuant to Executive Law§ 63 (12) to permanently enjoin him from selling, breeding, or training dogs, or advertisingor soliciting the sale, breeding, or training of dogs, for an award of restitution, and for ancillaryrelief, and directed a hearing on the issues of the amount of restitution to be paid and the awardof ancillary relief.
Ordered that the notice of appeal from so much of the order entered July 12, 2010, asamended July 26, 2010, as directed a hearing on the issues of the amount of restitution to be paidand the award of ancillary relief is deemed to be an application for leave to appeal from thoseportions of that order (see CPLR 5701 [c]), and leave to appeal is granted; and it isfurther,
Ordered that the orders entered May 17, 2010, and July 12, 2010, as amended July 26, 2010,are affirmed insofar as appealed from; and it is further,
Ordered that one bill of costs is awarded to the petitioner-respondent.
In this summary proceeding, the petitioner submitted evidence establishing, prima [*2]facie, that Perry Reich (hereinafter the appellant) was an officer of acorporation that he knew had engaged "in repeated fraudulent or illegal acts or otherwisedemonstrate[d] persistent fraud or illegality in the carrying on, conducting or transaction ofbusiness" (Executive Law § 63 [12]; see General Business Law §§349, 350; People v Apple Health & Sports Clubs, 80 NY2d 803, 807 [1992]; Matter of People v Applied Card Sys.,Inc., 27 AD3d 104, 106-107 [2005]; People v General Elec. Co., 302 AD2d 314,314-315 [2003]). In opposition, the appellant failed to raise a triable issue of fact (seeCPLR 409 [b]; Matter of Bahar v Schwartzreich, 204 AD2d 441, 443 [1994]).
The Supreme Court correctly determined that the appellant was not entitled to the bill ofparticulars he demanded. "The purpose of a bill of particulars is to amplify the pleadings, limitproof, and prevent surprise at trial; it is not an evidence-gathering device" (Scalone v PhelpsMem. Hosp. Ctr., 184 AD2d 65, 76 [1992]; see Hillside Equities v UFH Apts., 297AD2d 704, 705 [2002]; Sager v Rochester Gen. Hosp., 170 AD2d 949 [1991];Jericho Water Dist. v Zara & Sons Contr. Co., 116 AD2d 622, 624 [1986]). Thedemanded bill of particulars largely sought disclosure, rather than amplification, and it wasunduly burdensome and oppressive. Under the circumstances, the proper remedy, as the SupremeCourt concluded, was to vacate, rather than prune, that demand (see 176-178 Ashburton Ave.Corp. v New York Prop. Ins. Underwriting Assn., 125 AD2d 653 [1986]; Nazario vFromchuck, 90 AD2d 483, 484 [1982]; cf. Renucci v Mercy Hosp., 124 AD2d 796[1986]).
The Supreme Court did not err in declining to disqualify the Nassau County Office of theAttorney General based on an alleged conflict of interest (cf. Matter of Schumer vHoltzman, 60 NY2d 46, 55 [1983]; Matter of Soares v Herrick, 88 AD3d 148, 153-154 [2011]).
The appellant's remaining contentions either are not properly before this Court, have beenrendered academic, or are without merit.
Accordingly, the Supreme Court properly granted that branch of the petition which waspursuant to Executive Law § 63 (12) to permanently enjoin the appellant from selling,breeding, or training dogs, or advertising or soliciting the sale, breeding, or training of dogs, foran award of restitution, and for ancillary relief. Moreover, the Supreme Court properly referredthe matter for a hearing regarding the issues of the amount of restitution to be paid and the awardof ancillary relief. Rivera, J.P., Balkin, Hall and Cohen, JJ., concur.