2012-03-08 reply mol in further supp of motion to dismiss

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SUPREME COURT OF THE STATE OF NEW YORKAPPELLATE DIVISION: FIRST DEPARTMENTSERGIO HERNANDEZ,Petitioner-Respondent,

-against-OFFICE OF THE MAYOR OF THE CITY OF NEW YORK,

Respondent-Appellant.New York County Clerk'sIndex No.: 106213/2011

SCHLAM STONE & DOLAN LLPMichael C. MarcusElizabeth Wolstein26 Broadway - 19th FloorNew York, New York 10004Telephone: (212) 344-5400Facsimile: (212) [email protected] Petitioner-RespondentSergio Hernandez


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SUPREME COURT OF THE STATE OF NEW YORKAPPELLATE DIVISION: FIRST DEPARTMENTSERGIO HERNANDEZ,

Petitioner-Respondent,-against-

OFFICE OF THE MAYOR OF THE CITY OFNEW YORK,Respondent-Appellant.

New York County Clerk'sIndex No.: 106213/2011

Petitioner-Respondent Sergio Hernandez respectfully submits this reply memorandum oflaw in response to the Affirmation in Opposition ofFrancis F. Caputo, Esq. ("Caputo Aff." or the"City's Affirmation"), and in further support of his motion to dismiss the instant FOIL appeal forfailure to prosecute, pursuant to First Department Rules 600.5(d) and 600.12(b).

PRELIMINARY STATEMENTThe City's Affirmation offers no explanation for its failure to abide by this Court's rules;

no dispute that the record on appeal consists of a few pieces of FOIL correspondence and thepleadings in the court below; and no substantive response to Mr. Hernandez's showing that thelAS Court did not err in assessing the City's argument against disclosure as "spurious" and"utterly devoid ofmerit," except to say that the argument is "novel," Caputo Aff. 8, i.e.,without a basis in fact or law. Instead, the City notes that its lawyers are busy people and blamesMr. Hernandez's counsel for not requesting an extension of he City's 30-day deadline, as thoughwe should have known that the Corporation Counsel does not consider Rule 600.5(d) as bindingon it. But Mr. Hernandez and his counsel were entitled to assume that the City would notdisregard this Court 's rules, and the City has it entirely backward in suggesting that Mr.Hernandez's counsel should have sought to extend the City's deadline, to Mr. Hernandez'sevident detriment and despite that it was the City that faced default in the absence of an

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extension. Had counsel done so the City might or might not have accepted. Caputo Aff. ,-r 5.Whether the City believes it need not comply with the Rules or fear dismissal like other litigants,its view ofRule 600.5(d) as imposing no genuine deadline, and of its default as requiring noremedy, has severely prejudiced Mr. Hernandez and will continue to do so absent relief from thisCourt. Accordingly, the Court should either dismiss the City's meritless appeal or set the appealdown for the June Term or special dates at the end ofMay.

ARGUMENTFirst, the City offers no explanation for its failure to perfect its appeal in accordance with

this Court's deadlines, or to seek an extension of time to do so. Instead, the City seeks to turn itsdefault into an occasion for blaming Mr. Hernandez for not trying to extend the City's 30-daydeadline. But Mr. Hernandez had every right to expect the City to adhere to the deadline absenta request for an extension, which the City never made. Even assuming the correctness of theproposition that most appeals are perfected more than one month after the notice of appeal isfiled, Caputo Aff. ,-r 6, surely that is not because the litigant misses the deadline and thenarrogates to itself the authority to unilaterally adopt a briefing schedule of its own choosing, asthe City appears to believe is its right here. If the City was unable to perfect its appeal in the 30days required by the Rule, i t was incumbent upon the City, not on Mr. Hernandez, to seek anextension.

Having failed to either meet its deadline or seek an extension, the City should not now beheard to blame Mr. Hernandez for seeking the relief for which this Court's Rules expresslyprovide in this situation. Indeed, given that theCitis overriding purpose is to delay resolutionof the appeal and the disclosure ordered by the lAS Court, there is no reason to think the Citywould have been receptive to a request by Mr. Hernandez for a briefing schedule on a short

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horizon (even assuming a litigant should be expected to seek an extension ofanother party'sdeadline against his own interests) -particularly given the Ci ty's assertion that the CorporationCounsel is too busy to be bound by the Rules' 30-day deadline or to perfect its appeal before theSeptember Term.

Next, the four months between the City's denial ofMr. Hernandez's FOIL appeal andcommencement of he Article 78 proceeding have no bearing on the irreparable harm the Cityhas caused Mr. Hernandez by delaying, for a year and a hal f and counting, release of the Emailsbased on an unmeritorious defense that was its sole argument below and constitutes its soleargument on appeal. Four months to locate a lawyer and for the lawyer to review the case andprepare a memorandum of law and Article 78 petition is hardly unreasonable. Indeed, unlike theCity here, Mr. Hernandez's briefing had to also address FOIL's personal privacy exemption,based on the City's assertion of that exemption in the administrative phase - a defense todisclosure it later abandoned in the Article 78 proceeding, after Mr. Hernandez had briefed it.But that is beside the point. Even ifMr. Hernandez had found a lawyer and the lawyer had fileda petition and brief within two months- or two weeks- of the City's final administrative denial,Mr. Hernandez would be in the same position he is in now, namely, in possession of a favorablejudgment that he is prohibited by law from enforcing, and waiting for the City to take therequired steps to prosecute its appeal.

As this hypothetical illustrates, the cause ofMr. Hernandez's irreparable harm is not thetime it took to commence this proceeding, but the City's delay in prosecuting its unmeritoriousappeal in light of he automatic stay that gives the City every incentive to continue to delayresolution of the appeal for as long as possible, preferably, it must be presumed, until the Mayorleaves office or the public loses interest in the story behind Ms. Black's appointment. While the

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City's unmeritorious defense has obviously deprived Mr. Hernandez of the ability to report onthe Cathie Black story all along, he now has a judgment in hand, which tips the equitiesconsiderably in his favor. Nor is Mr. Hernandez's irreparable harm argument deficient as anevidentiary matter, see Caputo Aff. 7. That Mr. Hernandez has been irreparably harmed by theCity's conduct is a legal argument, which the Court can accept or reject based on itspersuasiveness. But the facts underlying the argument- that Mr. Hernandez was a journalistwho made his FOIL request as part of a newsgathering effort, see Mem. Dec. at 2, Wolstein Aff.Exh. A, and that the City denied the request and has never disclosed the Emails - are clearlyestablished in the record. Given that no money damages can compensate Mr. Hernandez for hisongoing inability to report on the Black Emails as a result of he City's conduct, the argument forirreparable harm is compelling. Labels aside, it requires no leap of faith to see that a journalist 'sinability to report on an issue of significant public interest constitutes severe harm that amplyjustifies, if not dismissal, then the expedited briefing Mr. Hernandez requests in the alternative.

Finally, even if the Court declines to dismiss the appeal, the City would not be prejudicedby a grant of the relief requested in the alternative, namely, to have the appeal placed on thecalendar for the June Term or special dates at the end ofMay. The City fully briefed itsadmittedly "novel" legal theory for withholding the Black Emails in the court below and thatwould ofnecessity constitute its briefing on appeal. The argument turns on a single FOIAexemption, the one for "inter-agency or intra-agency materials," Pub. Officers Law 89(2)(g),and the documents at issue fall into a single category: emails between the Mayor 's Office andMs. Black (and others at Hearst) dating to the period before she became Chancellor. In short,this is a single-issue appeal the arguments for which have already been written. Nineteen days ismore than enough time, or if the Court concludes otherwise it could order a special briefing

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schedule that provides for some additional time while still placing the appeal on the calendar forspecial dates at the end of May. Gathering the record on appeal imposes no additional burdengiven its extraordinarily limited contents, consisting of he few pages of he parties' FOILcorrespondence and the Petition and Answer below.

CONCLUSIONFor all the foregoing reasons and those set forth in Mr. Hernandez's opening

memorandum of law, this Court should dismiss the appeal for failure to prosecute, pursuant toFirst Department Rules 600.5(d) and 600.12(b), or vacate the automatic stay, or, in thealternative, direct the Mayor's Office to perfect its appeal for the June 2012 Term or for specialdates at the end of May 2012; and should award Mr. Hernandez his litigation costs, includingattorneys' fees, incurred in making this application.

Dated: New York, New YorkMarch 8, 2012

By:

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Mich C. MarcusElizabeth W olstein26 Broadway, 19th FloorNew York, New York 10004Telephone: (212) 344-5400Facsimile: (212) 344-7677E-Mail: [email protected] Petitioner-Respondent

2012-03-08 reply mol in further supp of motion to dismiss

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