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CITY OF NEW YORK v. GOLDEN FEATHER SMOKE SHOP

Nos. 09-3942-cv (L), 09-3997-cv (CON).

597 F.3d 115 (2010)

The CITY OF NEW YORK, Plaintiff-Appellee, v. GOLDEN FEATHER SMOKE SHOP, INC., Kimo Smoke Shop, Inc., Smoke and Rolls, Inc., Shawn Morrison, Kiana Morrison, in her individual capacity, Jessey Watkins, Tony D. Phillips, Defendants, Monique's Smoke Shop, Ernestine Watkins, in her individual capacity, Wayne Harris, Red Dot & Feathers Smoke Shop, Inc., Raymond Hart, in his individual capacity, Smoking Arrow Smoke Shop, Denise Paschall, in her individual capacity, TDM Discount Cigarettes, Thomasina Mack, in her individual capacity, Peace Pipe Smoke Shop, Rodney Morrison, Charlotte Morrison, in her individual capacity, Defendants-Appellants.

United States Court of Appeals, Second Circuit.

Decided: March 4, 2010.

Attorney(s) appearing for the Case

James M. Wicks, Farrell Fritz, P.C., Uniondale, N.Y. (George C. Pratt, Hillary A. Frommer, Farrell Fritz P.C., James F. Simermeyer, Law Offices of James F. Simermeyer, P.C., on the brief), for Defendants-Appellants Monique's Smoke Shop, Inc., Ernestine Watkins, Wayne Harris, Red Dot & Feather Smoke Shop, Inc., Raymond Hart, Smoking Arrow Smoke Shop, Denise Paschall, TDM Discount Cigarettes, and Thomasina Mack.

Daniel Noble, Law Office of Daniel Noble, New York, NY, for Defendants-Appellants Peace Pipe Smoke Shop, Rodney Morrison and Charolette Morrison s/h/a Charlotte Morrison.

Richard Levitt, Levitt & Kaizer, New York, NY, for Defendant-Appellant Wayne Harris.

Victoria Scalzo, New York, N.Y. (Stephen J. McGrath and Eric Proshansky, on the brief), for Michael A. Cardozo, Corporation Counsel of the City of New York, for Plaintiff-Appellee.

Before HALL and LIVINGSTON, Circuit Judges, and CHIN, District Judge.

HALL, Circuit Judge:

Defendants-appellants appeal the order of the Eastern District of New York (Amon, J.), preliminarily enjoining the sale of untaxed cigarettes to anyone not a member of the Unkechauge Nation. We consider here whether the City of New York (the "City") has demonstrated that it is entitled to a preliminary injunction. In order to effectuate our analysis, for the reasons that follow, we certify to the New York Court of Appeals two questions...

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