notice of motion to dismiss appeal (hernandez)

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION: FIRST DEPARTMENT SERGIO HERNANDEZ,

Petitioner-Responden~

-against-

OFFICE OF THE MAYOR OF THE CITY OF NEW YORK,

Respondent-Appellant.

New York County Clerk's Index No.: 106213/2011

NOTICE OF MOTION TO DISMISS APPEAL

PLEASE TAKE NOTICE that, upon the annexed Affirmation of Elizabeth Wolstein,

Esq., dated February 28, 2012, with exhibits thereto; and the accompanying memorandum of

law, Petitioner-Respondent Sergio Hernandez will move this Court at the Courthouse, located at

27 Madison Avenue, New York, New York 10010 on the _ _ day of March, 2012, at 10

o'clock A.M. in the forenoon of that day; or as soon thereafter as counsel may be heard, for an

Order dismissing this appeal taken by Respondent-Appellant appealing from the Order of the

Supreme Court, New York County, and entered in the Office of the Clerk ofthe Court, Supreme

Court, New York County, on December 6, 2011 (the "Judgment"), upon the ground that

Respondent-Appellant has failed to file and serve the papers required by C.P .L.R. § 5530 within

the required time limit set by Rule 600.5(d) of this Court, or vacating the automatic stay of the

Judgment imposed by operation of CPLR 5519(a); and for such other and further relief as the

Court deems proper.

PLEASE TAKE FURTHER NOTICE that answering papers, if any, shall be served by

hand delivery and electronic mail on Schlam Stone & Dolan LLP, attention: Elizabeth Wolstein,

Esq. ([email protected]) by the close of business on March_, 2012.

Dated: New York, New York February 29, 2012

BY HAND DELIVERY TO:

Elizabeth Freedman, Esq.

By:

SCHLAM STONE & DOLAN LLP

Elizabeth Wolstein 26 Broadway-19th Floor New York, New York 10004 Telephone: (212) 344~5400 Facsimile: (212) 344-7677 [email protected] Attorneys for Petitioner-Respondent

Sergio Hernandez

Office of the Corporation Counsel of the City of New York 1 00 Church Street New York, New York 10007 efreedma@law .nyc. gov

Attorneys for Respondent-Appellant Office of the Mayor of the City of New York

2

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION: FIRST DEPARTMENT SERGIO HERNANDEZ,

Petitioner-Respondent,

-against-




AFFIRMATION OF ELIZABETH WOLSTEIN IN SUPPORT OF

MOTION TO DISMISS APPEAL

ELIZABETH WOLSTEIN, an attorney duly admitted to practice in the Courts of this

State, affirms the following to be true under penalty of perjury:

I. I am a partner at Schlam Stone & Dolan LLP, attorneys for Petitioner-Respondent

Sergio Hernandez in the above-captioned appeal. I submit this Affirmation in support of Mr.

Hernandez' s motion to dismiss the appeal (the "Motion") of Respondent-Appellant Office of the

Mayor of the City of New York (the "Mayor's Office") for failing to file the record on appeal, as

required by CPLR 5530, within the time limit set by Rule 600.5(d) of this Court. The matters set

forth herein are based upon my personal knowledge.

2. Due to the urgent nature of the Motion, Mr. Hernandez requests that the Court set

the return date for a period shorter than the eight days specified in CPLR 2214(b ). The Motion is

urgent because it seeks, as alternative relief to dismissal of the appeal, that the Court direct the

Mayor's Office to perfect its appeal for the June 2012 Term, in which case the record on appeal

would be due on March 19, 2012, or for special dates at the end of May 2012.

3. Such alternative relief is necessary, in the absence of a grant of the motion, due to

the irreparable harm Mr. Hernandez, a journalist, has suffered as a result of the Mayor's Office's

delay in perfecting its unmeritorious appeal. The time he has lost in not being able to report on a

story of obvious public importance close in time to the events being reported can never be

recovered. At the sarn:e time, by operation ofCPLR 5519(a), Mr. Hernandez is deprived of the

benefit of his favorable judgment. The harm to Mr. Hernandez and the public caused by the

combination of(a) the Mayor's Office's failure to pursue what our memorandum of law shows is

a patently unmeritorious appeal, and (b) the automatic stay, make it of vital public importance

that the Mayor's Office's appeal be heard and disposed of as quickly as possible, if it is not

dismissed entirely.

4. Perfecting the appeal for the June Term or for special dates at the end of May

2012 would not pose an undue hardship on the Mayor's Office. As shown in its Pre-Argument

Statement (Exhibit B hereto), this is a simple appeal involving a single legal issue: whether

emails between the Mayor's Office and private citizens outside the agency were properly

withheld as "inter-agency or intra-agency materials" within the meaning of the State's Freedom

of Information Law. The issue was fully briefed by the Mayor's Office in the court below and

the briefmg on appeal will of necessity simply repeat what was already said there.

5. The factual record is similarly limited, consisting essentially of the pleadings and

the correspondence between Mr. Hernandez and the Mayor's Office relating to his FOIL request.

The record on appeal is therefore unlikely to exceed 50 to 75 pages, if that.

6. Accordingly, there is no reason the record on appeal and Respondent-Appellant's

brief could not be filed by March 19, 2012, so that the appeal may be placed on the calendar for

the June 2012 Term.

7. Attached hereto as Exhibit A is a true and correct copy of the memorandum

decision and order of the trial court in this matter, entered on or about December 6, 2011, from

which the Mayor's Office has taken this appeal.

2

8. Attached hereto as Exhibit B is a true and correct copy of the Mayor's Office's

Notice of Appeal and Pre-Argument Statement, filed on or about December 7, 201 1.

9. Attached hereto as Exhibit C is a true and correct copy of the Verified Answer

filed by the Mayor's Office in this matter on or about July 21, 2011.

Dated: New York, New York February 28,2012

3

EXHIBIT A

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Suptfilme Court Records OniJne Librar~ c pa~e 2.of 12

e SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK

In the Matter of the Application of SERGIO HERNANDEZ,

For a Judgment Under Article 78

------X

Petitioner,

of the Civil Practice Law and Rules,

-against-


Respondent. ----------------- ----------------~X

SCHLESINGER, J.:

Index No. 106213/11 Motion Sequence 001

This Article 78 proceeding involves the rights of the press and the public to

receive information regarding decisions made by our Mayor to fill high-level positions in

the New York City government. The case is of particular note in that it involves the

controversial hiring of Ms. Cathleen Black to serve as New York City Schools

Chancellor, a position she obtained only with a waiver of the credentialing requirements

and a position she held for only a brief period of time. It is also noteworthy in light of the

ongoing investigation by the New York City Public Advocate Bill de Blasia into why the

City reportedly "fails so miserably to release even the most routine data requested

under the state's Freedom of Information Law."1

Background Facts

Petitioner Sergio Hernandez is a freelance journalist who currently reports for

ProPublica in New York City. At the time of the events at issue here, Mr. Hernandez

was reporting for The Village Voice and contributing to its blog "Runnin' Scared."

1 See The New York Times Editorial MThey Like Transparency, Until They Don't," November 14, 2011.

Supreme Court Records On Line Library - page 3 of 12

NOV 2 8 2011

lAS MonON SUPPORT OFFICE NV< C:t LCIRI=Mil" t'niiRT.t"TVTI

e By e-mail dated November 19, 2010 addressed to "A. Crowell" at City Hall, Mr.

Hernandez made a request for documents pursuant to the New York State Freedom of

Information Law (FOIL), codified.at §84 et seq. of the New York State Public Officers

Law (POL) (Petition, Exh A). In the e--mail, Mr. Hernandez identified himself as a

reporter affiliated with the Village Voice and indicated that he was making the request

"as part of a news~gathering effort and not for commercial use." He then requested

copies of the following materials:

• E~mail messages sent from or received by any state electronic mail accounts assigned to the Office of the Mayor to or from an individual named Cathleen Prunty "Cathle"·Biack or e-mail addresses containing the domain hearst.com.

Mr. Hernandez emphasized that time was of the essence, and he urged City Hall to

promptly provide whatever records were "available immediately," with others to follow

as they were located. He also reminded the City that it was required to justify any

denials or deletions "by reference to specific exemptions of the Law."

Despite the stated urgency of the November 19 request, the apparent

newsworthiness of the subject, and at least two follow-up requests from Mr. Hernandez,

the Mayor's Office did not respond for approximately 60 days. That response was in the

form of a letter dated January 13, 2011 from Anthony W. Crowell, Counselor to the

Mayor, mailed to Mr. Hernandez (Exh B). In the letter, Mr. Crowell denied the FOIL

request in its entirety, stating that:

Please be advised that we are withholding responsive documents pursuant to Public Officers Law Section 87(2)(b), which allows agencies to withhold information that "if disclosed would constitute an unwarranted invasion of personal privacy;" and Public Officers Law Section 87(2)(g), which allows agencies to withhold "inter-agency and intraagency materials."

2

Supreme Court Recoros OnLine Library- page 4 of 12

In accordance with the instructions included at the end of Mr. Crowell's letter, Mr.

Hernandez immediately filed an appeal by e-m~il dated January 19, 2011 addressed to

Deputy Mayor Carol Robles-Roman, with a copy to Mr. Crowell (Exh C). After

recounting the details of his request and the procedural history, Mr. Hernandez argued

why the City's denial was "in error" and contrary to the legislative policy favoring open

government. First arguing generally why disclosure was justified, Mr. Hernandez stated

as follows:

It should be emphasized that prior to January 3, 2011, Ms. Black was a private citizen employed by Hearst Corporation, a privately-held media conglomerate based in New York City. Since at least June 22, 2009, Hearst Corporation has owned and controlled the Internet domain name "hearst.com" and e-mail accounts associated with that domain. Because the initial request was filed before Ms. Black came under the city's employ, and because FOIL applies only to records that exist when the request is made, Ms. Black was still a private citizen within the scope and purpose of this request.

Mr. Hernandez then went on to argue with specificity why the two claimed

exemptions were inapplicable. With regard to the first claimed exemption based on

purported "unwarranted invasion of privacy," he asserted (with a relevant citation to

Gould v New York City Police Department, 89 NY2d 267, 275) that "blanket exemptions

for particular types of documents" were barred and that the law required the City to

disclose the documents with appropriate redactions. With regard to the second claimed

exemption based on documents exchanged between agencies or within an agency, he

asserted (with a relevant citation to POL §86, subd. 3) that communications between

the City and a private citizen such as Ms. Black or the Hearst Corporation did not

qualify as either inter-agency or Intra-agency materials.

3

Supreme Court Records OnLine Library - page 5 of 12

e Ms. Robles-Roman, Deputy Mayor for Legal Affairs, denied the appeal by letter

dated January 26, 2011 (Exh D). Without addressing any of the arguments made by Mr.

Hernandez, Ms. Robles-Roman simply stated that she had "determined that Mr. Crowell

properly withheld these documents" pursuant to the exemptions stated in his letter. She

concluded by advising Mr. Hernandez of his right to challenge the determination via an

Article 78 proceeding. That is the proceeding before this Court now.

Discussion

The purpose of the Freedom of Information Law is to "promote open government

and public accountability" with the law imposing "a broad duty on government to make

its records available to the public." Tuck-It-Away Associates, L.P. v Empire State

Development Corp., 54 AD3d 154, 162 (1 8t Dep't 2008), affd 13 NY23d 882, quoting

Matter of Gould v New York City Police Dept., 89 NY2d 267, 274 (1996). Not only is this

principle firmly entrenched in our judicial opinions, but the Legislature articulated it

clearly and unequivocally when promulgating the statute, firmly declaring at Public

Officers Law §84 as follows:

The legislature hereby finds that a free society is maintained when government is responsive and responsible to the public, and when the public is aware of governmental actions. The more open a government is with its citizenry, the greater the understanding and participation of the public in government. ...

The people's right to know the process of governmental decision-making and to review the documents and statistics leading to determinations is basic to our society. Access to such information should not be thwarted by shrouding it with the cloak of secrecy or confidentiality.

The legislature therefore declares that government is the public's business and that the public, individually and · collectively and represented by a free press, should have access to the records of government in accordance with the provisions of this article.

4 Supreme Court Records Online Library - page 6 of 12

• Consistent with this policy, the courts have routinely construed FOIL to mean

that all documents are "presumptively available for review" unless they fall under one of

the limited exemptions set forth in POL §87(2). See, Tuck~lt-Away, supra, citing Matter

of M. Farbman & Sons v New York City Health & Hosps. Corp., 62 NY2d 75 (1984).

Further, the burden Is on the government to establish that

the requested material"falls squarely within a FOIL

exemption by articulating a particularized and specific

justification for denying access." Capital Newspapers Div of

Hearst Corp. v Bums, 67 NY2d 562, 566 (1986).

The City in this case has wholly failed to apply either the policy declared by our

Legislature or the dictates of our Court of Appeals detailed above. The conclusory,

blanket denials do not satisfy the standard set by the law. What is more, a review of the

two claimed exemptions reveals that neither one applies.

A claimed "unwarranted invasion of personal privacy" does not permit the

wholesale withholding of a document. Rather, POL §89(2), specifies a list of identifying

details that the agency may redact when it makes records available. While the City may

redact "employment history", the e-mails presumably do not contain any confidences

regarding that issue. Quite the contrary, Ms. Black's employment history was a matter

of public record at the time of her appointment due to the need for a·waiver of certain of

the credentialing requirements. The privacy exemption is intended to apply to

information of a genuinely private nature only, [see, New York Committee for

Occupational Safety and v Bloomberg, 72 A03d 153, 160 (1st Dep't 2010)], and the

City has given no indication that the requested e-mails contain any such information.

5

Supreme Court Records OnLine Ubrary - page 7 of 12

e What is more, a balancing of the potential privacy interests at stake against the

public interest in disclosure favors disclosure in this case with appropriate redactions.

Particularly instructive here is the First Department's decision in Kwas.nik v City of New

York, 262 AD2d 171 (1'1 Dep't 1999). There the Appellate Division affirmed the trial

court's direction to the City University of New York to disclose the public employment

history of certain employees who purportedly did not meet the licensing requirement for

employment when hired. The court stated: This result is supported by opinions of the _

Committee on Open Government, to which the courts should defer ... , favoring \

disclosure of public employees' resumes·if only because public employment is, by dint

of FOIL itself, a matter of public record .... "262 AD2d at 172 (citations omitted). In

applying the balancing test to the circumstances of the case, the court concluded that

"the agency's need for infonnation would be great and the personal hardship of

disclosure small (see, Public Officers Law §[2][b][ivJ)." /d.

Such is the case here. As Ms. Black did not meet the credentialing requirements

for the all-important position of School Chancellor, the public has the right to know what

information about her employment history and qualifications was disclosed in the a

mails. Any information of an intensely personal nature could easily be redacted, with

the balance of the information disclosed. Indeed, despite its earlier blanket denial of the

FOIL request on privacy grounds, the City's position in this litigation appears to be that

while telephone numbers, ~II phone numbers, and personal e-mail addresses should

be redacted, the remaining text of the e-m ails is not exempt from disclosure on privacy

grounds. As petitioner does not dispute that such redactions are appropriate, they will

be allowed by this Court.

'6

Supreme Court Records Online Library - page 8 of 12

The City's second claimed exemption relating to inter-agency or intra-agency

records is particularly specious, as it by definition involves communications between or

within governmental agencies. POL §86(3). It is undisputed that Ms. Black and the

Hearst employees were private citizens at the time the subject e-mails were written.

Simply put, the statute offers no exemption for agency communications with private

citizens such as Ms. Black. Records that consist of communications with people

outside the agency must be disclosed. See, Miller v NY State Dept. of Trans., 58 AD3d

981, 984-85 (3rd Dept 2009)(DOT's press releases and communications with people

outside the agency were not exempt as intra-agency documents).

Wholly devoid of merit is the City's claim that Cathleen Black and her staff were

agents of the City during the relevant time. The City argues that because the City had

an interest in addressing concerns by Commissioner Steiner about Ms. Black's

qualifications for the position of Chancellor, and because Ms. Black was providing

information to assist the Mayor in addressing those concerns, Ms. Black and her staff

were acting as de facto "agents" or as "consultants" for the City.

Neither the facts nor the law on agency support this argument. As petitioner

correctly notes, as a mayoral nominee Ms. Black was not bound to act on the Mayor's

behalf, and the Mayor had no basis to exert control over Ms. Black before her

appointment was confirmed. While Ms. Black may well have followed the Mayor's

guidance in order to assist her in receiving the appointment they both desired, and

while the interests of both parties may well have been served by obtaining the

information needed to address Commissioner Steiner's concerns, those facts do not

constitute a principal-agent or consultant relationship.

7


e What is more, applying the exemption in a case such as this would not serve the

policy behind the exemption. The obvious purpose of the exemption is to encourage

"people within an agency to exchange opinions, advice and criticism freely and frankly,

without the chilling prospect of public disclosure." Matter of New York Times Co. v City

of NY Fire Dept. 4 NY2d 267, 176 (1996) However, communications with people

outside the agency are not considered part of the government's deliberative process,

and their disclosure will not inhibit decision-making within the government. See Miller,

supra.

Here, the e-mails presumably do not relate to the State Education Department's

actual deliberative process in deciding whether to grant Ms. Black the requested waiver.

Instead, they involve efforts by the City to obtain information to prepare the waiver

request, complete the mayoral appointment process, and address community concerns

about Ms. Black's qualifications for the position. Ms.· Black was the appointee, and not a

consultant, in that process. Thus, no basis for the exemption exists.

Regarding petitioner's request for attorney's fees, based on the papers submitted

to date and oral argument, the Court finds that the interests of all parties would be

served by a conference to further address the issues raised.

Accordingly, it is hereby

ADJUDGED that the petition is granted and respondent is directed to release the

subject records consistent with the terms of this decision within fifteen days of the date

of this decision; and it is further

8

Supreme Court Records OnLine Library - page 1 0 of 12

• • I f . '

" ORDERED that counsel for both parties shall appear before this Court in Room

222 on Wednesday, January 4, 2012 at 9;30 a.m. to further address the issue of

counsel fees.

Dated: NOv 2 8 zau

...

9


..

'It

Index 106213/2011

SUPREME COURT OF TilE STATE OF NEW YORK COUNTY OF NEW YORK

In the Matter of the Application of

SERGIO HERNANDEZ.

Petitioner,

For a Judgment Under Article 78 of the Civil Practice Law and Rules,

-against-

OFFICE OF THE MAYOR OF TilE CllY OF NEW YORK,

Respondent.

ORDER AND JUDGMENT

MICHAEL A. CARDOZO Corporation Counsel of the City of New YOI'k

Attorney for &spondent I 00 Church Street

New York, N. Y. 10007 OfCmmul JeffDantuwilZ

(212) 788-0939

Due and timely service is hereby admitted

New YOI'k, N.Y. ........................................................................ • 2011

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EXHIBITB

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK

---------------------------------------------~-------------------------}{ SERGIO HERNANDEZ,

For a Judgment Under Article 78 ofthe Civil Practice Law and Rules,

-against-

Petitioner, NOTICE OF APPEAL

lndeJC No. 106213/11

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

Respond~nt.

-----------------------------------------------------------------------}( PLEASE TAKE NOTICE that respondent hereby appe~s to the Appellate

Division of the Supreme Court, First Department, from the order and judgment (one paper) of

the Honorable Alice Schlesinger herein dated ~ovember 23, 2011 and e11tered in the office of the

Clerk of New York County on or about December 6, 2011. This appeal is taken from each and

every part of said order and judgment (one paper) as well as from ·the whole thereof.

Dated: New York, New York December 7, 201 1

TO: SCHLAM STONE & DOLAN LLP Attorneys for Petitioner 26 Broadway, 19th ~loor, New York, New York 10004. (212) 344-5400

CLERK Cotmty of New York

MICHAEL A. CARDOZO COiporation Counsel of the City ofNew York Attorney for Respondent 100 Church Street New York, New York 10007 (212) 788-1010

By:~ LEONARD KOERNER Chief, Appeals Division

APPELLATE DIVISION OF THE SUPREME COURT FIRST ruDICIAL DEPARTMENT

----------------------------------------------------------------------x

SERGIO HERNANDEZ, Index No.: 106213/11


-against-

THE OFFICE OF TIIE MAYOR OF THE CITY OF NEW PRE-ARGUMENT YORK, STATEMENT


----------------------------------------------------------------·-----x

PLEASE TAKE NOTICE, that the Respondent-Appellant, for its pre-argument

statement, alleges as follows:

1. The full names of the original parties, and the names, addresses and

telephone numbers of counsel for the parties, are as set forth below:

Petitioner-Respondent:

Attorneys for Petitioner-Respondent:

Respondent-Appellant:

Attorneys for Respondent-Appellant:

SERGIO HERNANDEZ

Schlam Stone & Dolan LLP th

26 Broadway, 19 Floor New York, New York 10004 (212) 344-5400

THE OFFICE OF THE MAYOR OF THE CITY OF NEW YORK

Michael A. Cardozo Corporation Counsel of the City ofNew York 1 00 Church Street New York, New York 10007 (212) 788-1010

2. In this proceeding commenced under Article 78 of the CPLR, Petitioner-

Respondent challenged the determination of the Respondent-Appellant to deny Petitioner-

Appellant access to documents requested pursuant to the New York Freedom of Information

Law, N.Y. Pub. Off. Law§ 84, et seq.

3. Appeal is taken from that portion of the Order and Judgment of Justice

Alice Schlesinger dated November 23, 2011 and entered in the office of the Clerk of New York

County on December 6, 2011, pursuant to which Justice Schlesinger found that the subject

documents were not exempt as inter-agency or intra-agency records under N.Y. Pub. Off. Law§

86(3) and, on that basis, granted the Petition and directed Respondent-Appellant to release the

subject records.

4. The grounds for appeal are that the Court erred in finding that (i) Cathleen

P. Black was not acting as an agent of, or consUltant to, the City of New York or Mayor Michael

Bloomberg after she had been appointed to serve as Chancellor of the City school district but

prior to her a~suming that position; (ii) the nature of the communications contained in the

requested documents was not deliberative; and (iii) on these grounds that subject records were

not exempt as inter-agency or intra-agency records under N.Y. ~ub. Off. Law§ 86(3).

Dated: New York, New York December 7, 201 1

MICHAEL A. CARDOZO Corporation Counsel of the City of New York Attorney for Respondent-Appellant 100 Church Street New York, New York 10007 (212) 788-1010

By: Leonard Koerner Chief, Appeals Division

2

.... "

S'UPRE-ME ·COURT OF· THE ·sTATE OF N·EW YOlttr.' NEWYO~k COUNTY . . .

·. e. .~ . ld~JL r,·. :·-:. , ~ . . i . ,.

.,

PRESENT: ALICE SGH~ESINGER Index Number: 106213/201 1

HERNANDEZ~ SERGIO VS

OFFICE OF THE MAYOR Sequence Number: 001

ARTICLE 78

.~. . . ~' ' ·,

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· .. · _ ~w~~Kr~~.:~·fi·~-~Qf,B.,AT-e.:~;~.~~-~:;;~ .. ~ .-... ~ ... ~ .... ;Mo.r,oN ·1s~: 'Wi§JM~~ . o DENIED

INDEX NQ. --.....--

MOTION DATE·_.·..... ---'

MOTION SEQ: NO._~-

· ....... 4:· ·; .. ... · .. . ... · ... .

• : • ' ~ • • •• t . ~· ·· • • ' •

. ~ - . . ~· ·. .. : \ · .. ~. .. . . ; ~. . ... . . . . · ... : . ~ ·.: .·

· :: ,·;;l.:,:6itp.K :iF;~~~R.O~~IAif: .;· ..... :~.": ...................... : .......... ~: ... . ·d··s'~~E ~RDER , . · ·· · · ::~ .·. · ' · 0:00~Noi:p.GST . ·0 FIE>UOIARY.APPOINTMENt · .CJl~~F.E~.~N~I

. i •' ' . . I.

. .. ·.•. :· ,: t': .. :'-:· · · ··

. CJ -·· ' . '-S~ ... -.,.t, _..:..,.,.. .• ~--~ . ...... ----····- --·-·· - e

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ----- -------------------- -------------X In the Matter of the Application of SERGIO HERNANDEZ,

For a Judgment Under. Article 78

Petitioner,

of the Civil Practice Law and Rules,

-against-


Respondent. ----- ---- ------ - - -- -------------. --X SCHLESINGER, J .:

Index No. 106213/11 Motion Sequence 001

This Article 78 proceeding involves the rights of the press and the public to

receive information regarding decisions made by our Mayor to fill high-level positions in

the New York City government. The case is of particular note in that it involves the

controversial hiring of Ms. Cathleen Black to serve ~s New York City Schools

Ch~fl .. c~lior,_ ~ p_q~i~!o~ ~!1~ C?btair:"~ed only with a waiver of the credentiallng requirements

and a position she held for only a brief period of time. It is also noteworthy in light of the

ongoing investigation by the New York City Public Advocate Bil~ de Blasia into why the

City reportedly "fails so miserably to release even the most routine data requested

under the state's Freedom of Information Law. "1

Background Facts

Petitioner Sergio Hernandez is a freelance journalist who currently reports for

ProPublica in New York City. At the time of the events at isstJe here, Mr. Hernandez

was reporting for The Village Voice and contributing to its blog "Runnin' Scared.''

1 See The New York Times Editorial "They Like Transparency, Until They Oon't,u November 14, 2011 .

NOV 2 8 20ff

lAS MOTION SUPPORT OFFICE

By e-mail dated November 19, 2010 addressed to ''A. Crowell" at City Hall, Mr.

Hernandez made a request for .. documents pursuant to the New York State Freedom of

lnfom1ation Law (FOIL), codified at §84 ef seq. of the New York State Public Officers

Law (POL) (Petition, Exh A). rn the e-mail, Mr. Hernandez ide.ntified himself as a

reporter affiliated with the Village Voice and indicated that he 'was making the request

'"as part of a n~ws-gathering effort and not for commercial use." He then requested

copies of the folfowJng materials:

• E~mail messages sent from or received by any state electronic mail accounts assigned to the Office of the Mayor to or from an Individual named Cathleen Prunty ucathie" Black or e-mail addresses containing .the domafn hearst. com.

Mr. Hernandez emphasized that time was of the essen·ce, and he urged City Hall to

promptly provide whatever reqords were "available immediately," with other~ to follow

as they yvere located. He also reminded the City that it wa~ required to justify any

denials or deletions ••by reference to specific exemptions of the Law."

Despite the stated urgency of the November 19 request, the apparent

newsworthiness of the subject, ar:acf at least two. follow-up requests from Mr. Hernandez,

the Mayor's Office did not respond for approximately 60 days. Thill reaponse was lri the

fonn of a letter dated January 13, 2011 from Anthony W. Crowell, Counselor to the

Mayor, mailed to Mr. Hernandez (Exh B). In the letter, Mr. Crowell denied the FOIL

~quest in its entirety, stating that:

Please be advised that we are withholding responsive documents pursuant to Public Officers Law Section 87(2)(b), which allows agencies to withhold Information that "if disclosed would constitute an unwarranted Invasion of personal privacy;" and Public Officers Law Section 87(2)(g), which allows agencies to withhold uinter-agency and intraagency materials." .

2

In accordance with the instructions included at the end of Mr. Crowell's letter, Mr.

Hernandez immediately filed an appeal by e-mail dated January 19, 2011 addressed to ' .

Deputy Mayor Carol Robles·Roman, with a copy to Mr. Crowell (Exh C). After

recounting the details of his request and the procedural history, Mr. Hernandez argued

why the City's denial was "in error'' and contrary to the legislative policy favoring open

government. First arguing generally why disclosure was justified, Mr. Hernandez stated

as follows:

It should be emphasized that prior tp January 3, ZO 11, Ms. Black was a private citizen employed by Hearst Corporation, a privately-held media conglomerate based in New York City. Since at least June 22; 2009, Hearst Corporation has owned and controlled the Internet domain name •hearst. com" and e-mail accounts associated with that domain. Because the initial reque$t was filed before Ms. ·BI{;lck came under the city's employ, and because FOIL applies only to records that exist when the request Is made, Ms. Black was still a private citizen within the scope and purpose of this request.

Mr. Hernand~z then went on to argue witt) specificity why the two claimed

exemptions were Inapplicable. With regard to the first claimed exemption based on

purported •unwarranted Invasion of privacy/' he asserted (with a relevant cit~tion to

Gould v New York City Police Department~ 89 NY2d 267, 275) that "blanket exemptions

for particular types of documents" were barred and that the law required the City to

disclose the documents with appropriate redactions. With regard to the second claimed ·

exemption based on documents exchanged between agencies or within an agency, he

asserted (with a relevant citation to POL §86, subd. 3) that communications between

the City and a privata citizen such as Ms. Black or the Hearst Corporation did not

qualify as either inter-agency or intra-agency materials.

3

Ms. Robles-Roman, Deputy Mayor for Legal Affairs, denied the appeal by letter

dated Janoary 26, 2011 (Exh D). Without addressing any of the arguments made by Mr.

Hernandez, Ms. Robles-Roman simply stated that she had "determined that Mr. Crowell

properly withheld these documents" pursuant to the exemptions stated In his letter. She

concluded by advising Mr. Hernandez of his right to challenge the determination via an

Articfe 78 proceeding. That is the proceeding b~fore this Court now.

Discussion

The purpose of the Freedom of Information Law is to "promote open government

and public accountability" with the. law imposing "a· broad duty on government to make

its records available to the public." Tuck-It-Away Asspciates, L.P. v Empira State

Development Corp., 54 AD3d 154, 162·(1 1t Dep't 2008). affd 13 NY23d 882, quoting

MstterofGould v New York City Pollee. Df1pt., 69 NY2d 267, 274 (1996). Not only Is this . .

principle firmly entrenched iri our judicial opinions, but the Legislature articulated it

clearfy and unequivocally when promulgating the statute, finnly declaring at Public

Officers Law §84 as follows:

· The legrslature hereby finds that a free society is · maintalne.d when government is responsive and responsible

to the public, and when the public is aware of governmental actions. The more open a government Is with its citizenry, the greater the understanding and participation of the public In government. .•.

The people's right to know the process of governmental declsion.making and to review the documents and statistics leading to determinations is basic to our society. A-ccess to such Jnformation should not be thwarted by shrouding it with the cloak of seorecy or confidentiafity.

The le-gislature therefore declares that government is the publiC1

S busJness and that the pub1ic, individually and collectively and represented by a free press1 should have access to the records of government in accordance with the provisions of this article.

4

·---~:----'--------------· ·-·--

Consistent with this policy, the courts have routinely construed FOIL to mean

that all documents are "presumptively available tor revieW: unless they fall under one of

the limited exemptions set forth in POL §87(2). See1 Tuck-It-Away, supra/ citing Matt~r

of M. Farbman & Sons v New York City_Health & Hosps. Corp., 62 NY2d 75 (1984).

Further, the burden is on the government to establish that

the requested material"falls squarely within a FO~L

exemption by articulating a particularized and SP.eclfio

justification for denying access." Capital Newspap9rs Div of

Hoarst Corp. v Bums, 67 NY2d 562, 566 (1986).

The City in this case has wholly failed to apply either the policy declared by our

Legislature or the dictates of our Court of Appeals detailed ·above. The conclusory,

blanket denials do not satisfy the standard set by the law. What Is mare, a review of the

two claimed exemptions reveals that neither one applies.

A claimed "unwarranted invasion of personal privacy" does not pennit the

wholesale withholding of a document. Rather, POL §89{2), specifies a list of Identifying

details that the agency rnay redact when it makes records available. While the City may

redact uemployment hfstort' the e-malls presumably do not centain any ~nfldences

regarding that fssue. Quite the contrary, Ms. alack's employment history was a matter

of public record at the time of her appointment due to the need for a waiver of certain of

the credentialing requirements. The privacy exemption Is intended to apply to

information of a genuinely private nature only, [S.ee, New York Committee for

Occupational Ssfaty and v Bloomborg, 72 AD 3d 153, 160 (1'1 Dep't 201 0)), and the

City has g'!Ven no Indication that the requested e·mails contain any such information.

5

----------------------------------~------------------------------

What is more, a balancing of the potential privacy interests at stake against the

public interest in disclosure favors disclosure in this case with appropriate redactions.

Particularly instructive here is the First Department's decision in Kwas_nik v City of Naw

York, 262 AD2d 171 (1•1 Dep't 1999). There the APpellate Division affirmed the trial

court's direction to the City University of New York to disclose the public employment

history of certain employees who· purportedly did no~ meet the licensing requirement for

employment w~en hired. The court stated: This result is supported by opinions of the

Committee on Open Government, to which the courts should defer ••• , favoring

disclosure of public employees' resumes if only because pub II~ employment Is, by dint

of FOIL itself, a matter of public record .... " 262 AD2d at 172 (citations omitted). In

applying the balancing test to the circumstan~es of the case, the court concluded that

uthe agency's need for Information would be great and the personal hardship of

disclosure small (see, Public Officers Law §[2J[b][iv]}.· /d.

Such is the case he~; As Ms. Black did not meet the credentlallng requirements

for the all-important posftfon of School Chancellor, the public has th~ right to know what .

Information about her employment history and qualifications was disclosed In thee-

malls. Any Information of an Intensely personal natura could easily be red~cted, w~th

the balance of the Information disclosed. Indeed, despite Its earlier blanket denial of the

FOIL request on privacy grounds, the City's position in this litigation appears to be that . whll~ telephone numberS, cell phone numbers, and personal e-mail addresses should

be redacted, the remaining text of the a-mails is not exempt from disclosure on privacy

grounds. As petitioner does not dispute that such redactions are appropriate, they will

be allowed by this Court.

6

The City's second claimed exemption relating to inter-agency or intra-agency

records is particularly specious, as it by definition involves communications between or

within governmental agencies. POL §86(3). It is undisputed that Ms. Black and the

Hearst employees were private citizens at the time the subject e-mails were written.

Simply put, the statute offers no exemption for agency communications with private

citizens such as Ms. Black. Records that consist of communications wJth people

outside the agency must be disclosed. See, Miffer v NY State Dept. of Trans., 58 AD3d

981, 984~85 (3111 Dept 2009)(DOT's press releases and communications with people . outside the agency were not exempt as intra-agency documents).

Wholly devoid of merit is the City's claim that Cathleen Black and her staff were

agents of the City during the relevant time. The City argues that because the City had

an interest In addressing concerns by Commissioner Steiner about Ms. Black's

qualifications for the positiory of Chancellor, and because ~s. Black was providing

information to assist the Mayor in addressing those concerns, Ms. Black and her staff

were acting as de facto "agents" or as Nconsultants" tor the City . .

Neither the facts nor the law on agency support this argument As petitioner -

correctly notes, as a mayoral nominee Ms. Black was not bound to act .on the Mayor's

bt;thalf, and the Mayor had no basis to exert control over Ms. Black before her . .

appointment was confirmed. While Ms. Black may well have followed the Mayor's

guidance in order to assist her In receiving the appointment they both desired, and

while the lnter~st~ of both parties may well have been served by obtaining the

infonnation needed to address Commissioner Steiner's concerns, those facts do not

constitute a principal-agent or ~onsultant relationship.

7

What is more, applying the exemption in a case such as this would not salVe the

policy be.hind the exemption. The obvious purpose of the exemption is to encourage

"people within an agency to exchange opinions, advice and criticism freely and frankly,

without the chilling prospect of public disclosure.'' Matter of N~w York Times Co. v City

of NY Fire Dept. 4 NY2d 267, 176 (1996) However, communications with people

outside the agency are not considered part of the government's deliberative process,

and their disclosure will not inhibit decision-making within the government See Miller,

supra.

Here, the e-mafls presumably do not relate to the State Educa~ion Department's

actual deliberative process in deciding whether to grant Ms. Black the requested waiver.

Instead, they Involve efforts by the City to obtain information to prepare the waiver

request, complete the mayoral appointment process, and address community oonooms '

about Ms. BlacJ<s qualifications for the position. Ms. Black was the appointee, and not a

consul~nt, In that process.· Thus, no basis for the exemption exist~ •.

Regarding petitioner's requ.est for attorney's fees, based on the papers eubmltted

to date and oral argument, the Court finds that the Interests of an parties would be

served by a conference to further address the issues raised.

Accordingly, it Is hereby

ADJUDGED that the petition is granted and ,respondent is directed to release the

subject records consistent with the terms of this decision within fifteen days of the date

of this decision: and It is further

8

: .. _--);

ORDERED that counsel for both parties shall appear before this Court in Room

222 on Wednesday, January 4, 2012 at 9;30 a.m. to further address the issue of

counsel fees.

Dated: NOV 2 3 2011 J.S.C.

ALICE SCHLESI . ... ...

9

l

'

• ~

Index 10621312011

SUPREME COURT OF 1BE STATE OF NEW YORK COUNTY OF NEW YORK

In the Matter of the Application of

SERGIO HERNANDEZ,

Petitioner.

For a Judgment'Under Article 78 of the Civil Practiee Law and Rules,

-against-

OFFICE OF 11IE MAYOR OF TilE CITY OF NEW YORK,

Respondent

ORDER AND JUDGMENT

MICHAEL A. CARDOZO Corporation Counsel oftm City of New Y.ork

Attorney for !Wpontknt 100 Chwch Street

Ncw York, N.Y. 10007 Of Counsel Jeff Dantowitz

(212) 788-()939

Due and limely $ervice is mre/}y admitted

New Yol'k, N.Y ....................... - ................................................ , 2011

....................................................................................................... Elq.

Attorney for ........................................................................................ ...

:;!W ()

O...u_ ~ lL

w ...-~0 u 11 ~ E ~· Cf'"J ~~ ('.1 c::-J ~

...o_.....J m , o ~

u . ==- w 0 0 (.) u. :'

·~

1->: -<Z

AFFIDAVIT OF SERVICE ON ATTORNEY BY MAIL

STATE OF NEW YORK, COUNTY OF NEW YORK, SS:

Stephanie Wright, be4lg duly sworn, deposes and says:

That on the ih day of December, 2011, she served the annexed Notice of Appeal

Upon: SCHLAM STONE & DOLAN LLP Attorneys for Petitioner 26 Broadway, 19th Floor, New York, New York 10004. (212) 344-5400

being the address within the State theretofore designated by him/her for that purpose, by

depositing a copy of the same, enclosed in a prepaid wrapper in a post office box situated at 100

Church Street in the Borough of Manhattan, City of New York, regularly maintained by the

Government of the United States in said City.

Swo~ to before me this 1- day of D~cember, 201 1

SHARYN ROOTENBEftQ Hofaly Publi<:z...~~e of N&w Yotk

No. 02HV:>U50475 Otulllffedi'1. New York county 1 u

Commls61on expire& Apr. 10, 20~t

Index No. 106213/11

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YOIU(

SERGIO HERNANDEZ,

For a Judgment Under Article 78 ofthe Civil Practice Law and Rules,

-against-

Petitioner,

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

Respondent.

NOTICE OF APPEAL

N.UCHAELA.CARDOZO Corporation Counsel of the City of New York Attorney for Respondent 100 Church Street New York, N.Y. 10007

Of Counsel: Leonard Koerner Tel: (212) 788-1010 Law Manager No. 201 J-016396

Due and timr!ly service is hereby admitted.

New York, N.Y. ....... , ..................................................... , 201 J

.................................................................................................. Esq.

Attorney for .................................................................................... ..

EXHIBITC

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK

-------------------~-------------------------------------------------x

Application for a Judgment under Article 78 of the CPLR and other relief,

SERGIO HERNANDEZ

Petitioner,

-against-


Respondent.

----------------------------------------------------------------------x

Index No. 106216/11 lAS Part 16 (Schlesinger, J.)

VERIFIED ANSWER

Respondent, by and through its attorney, Michael A. Cardozo, Corporation

Counsel for the City of New York, as and for its Answer to the Verified Petition herein, alleges

as follows:

1. Denies the allegations contained in paragraph 1 of the Petition, except

admits that Petitioner purports to proceed as set forth therein.


admits that Petitioner purports to proceed as set forth therein.

3. Denies knowledge or information sufficient to form a belief as to the truth

of the allegations contained in paragraph 3 of the Petition.

4. Admits the allegations contained hi paragraph 4 of the Petition.


admits that Petitioner purportedly sent an e-mai1 on November 19, 2010 to Anthony Crowell

requesting certain records, and respectfully refers the Court to the email annexed to the Petition

as Exhibit A, for a complete and accurate statement of its contents.

6. Admits the allegations contained in paragraph 6 of the Petition.


admits that Petitioner purportedly sent an e-mail on January 19, 2011 to Deputy Mayor Carol

Robles-Roman purportedly appealing the denial of is FOIL request, and that Deputy Mayor

Robles-Roman denied the appeal by letter dated January 26, 2011, and respectfully refers the

Court to the email dated January 19, 2011 and letter dated letter January 26,2011, annexed to the

Petition as Exhibits C and D, respectively, for a complete and accurate statement of their

contents.

8. Denies the allegations contained in paragraph 8 of the Petition.

9. Makes no response to the allegations contained in paragraph 9 of the

Petition, insofar they assert legal conclusions. To the extent a response is required, Respondent

denies the allegations contained therein, and respectfully refers the Court to the statutes cited

therein for a complete and accurate statement of their provisions.

l 0. Make no response to the allegations contained in paragraph 10 of the

Petition, insofar they assert legal conclusions. To the extent a response is required, Respondent

denies the allegations contained therein, except admits that Respondent is located within New

York County, and that New York County is within the county in which the Respondent made the

determination complained of, and respectfully refers the Court to the statutes cited therein for a

complete and accurate statement of their provisions.


admits that Petitioner purportedly sent an e-mail on November 19, 2010 to Anthony Crowell

-2 -

requesting certain records, and respectfully refers the Court to the email annexed to the Petition

as Exhibit A, for a complete and accurate statement of its contents.


admits that Anthony Crowell sent a letter to Petitioner dated January 13, 2011, and respectfully

refers the Court to the letter annexed to the Petition as Exhibit B, for a complete and accurate

statement of its contents.


admits that Petitioner purportedly sent an e-mail on January 19, 2011 to Deputy Mayor Carol

Robles-Roman, and respectfully refers the Court to that letter, annexed to the Petition as Exhibit

C, for a complete and accurate statement of its contents.


admits that Deputy Mayor Robles-Roman sent Petitioner a letter dated January 26, 2011, and

respectfully refers the Court to that letter, annexed to the Petition as Exhibit D, for a complete

and accurate statement of its contents.

15. Repeats and realleges each and every response set forth in paragraphs 1

through 14 above as if set forth fulJy hereat.

16. Makes no response to the allegations contained in paragraph 16 of the

Petition, insofar they assert fegal conclusions. To the extent a response is required, Respondent

denies the alJegations contained therein, and respectfully refers the Court to New York's

Freedom of Information Law, N.Y. Public Officers Law § 84, et seq. and the interpretive case

law thereunder, for a complete and accurate statement of their requirements.





21. Denies the allegations contained in paragraph 21 ofthe Petition.

22. Denies knowledge or information sufficient to form a belief as to the truth

of the allegations contained in paragr~ph 22 of the Petition

23. Repeats and reaJleges each and every response set forth in paragraphs I

through 22 above as if set forth fully hereat.





AS AND FOR A STATEMENT OF MATERIAL AND PERTINENT FACTS·

28. In early November 2010, Mayor Michael Bloomberg selected Cathleen P.

Black to be the Chancellor of the City school district, upon the pending resignation of the then

serving Chancellor, Joel Klein.

29. On November 9, 2010, Mayor Bloomberg publicly announced that he had

selected Ms. Black to be the next Chancellor.

30. Ms. Black did not meet the eligibility requirements of Education Law §

3003(1) for a superintendent certificate in that, although she possessed the requisite Bachelor of

Arts degree, she did not possess the graduate coursework or experience requirements.

31. Because Ms. Black did not meet the eligibility requirements and because

Ms. Black did not have any previous experience in the field of education, it was understood that

her selection, as with the selection of any individual to a high-level government position, would

- 4 -

be subject to scrutiny and debate. Additionally, in order for Ms. Black to serve as Chancellor,

she was required to obtain a School District Leader certificate from the New York State

Education Department pursuant to Education Law§ 3003(3).

32. By letter dated November I 7, 2010, Mayor Bloomberg wrote to the

Commissioner of Education of the New York State Education Department, requesting that he

provide Ms. Black a School District Leader certificate pursuant to Education Law§ 3003(3) and

8 N.Y.C.R.R. Part 80-3.10(b)(3)(iii).

33. After her selection in early November 2010, Ms. Black, City staff and

Hearst Corporation staff assigned to assist Ms. Black in her transition to City government were

required to communicate with one another in order to appropriately prepare the request to

Commissioner Steiner, respond to routine queries that are customary for high-level mayoral

appointees, and engage in outreach planning to the community to address concerns that had been

publicly raised regarding Ms. Black. Ms. Black was both directly communicating with as well as

copied on e-mails between these parties.

34. These emails included discussions concerning clarification of Ms. Black's

background, discussions related to proposed and actual contacts with various government

officials and other stakeholders regarding Ms. Black's selection, and drafts of the letter to be sent

to Commissioner Steiner requesting a School District Leader certificate for Ms. Black.

35. Upon information and belief, it was well-understood that the

communication and outreach efforts described above were to be coordinated through the Office

of the Mayor, and that Ms. Black and the staff assigned to assist her in her transition to City

government would be expected to participate in and support these efforts, as would any other

high-level mayoral appointee.

36. Indeed, the emails between the Office of the Mayor and Ms. Black

(whether directly or as a "cc") show that while Ms. Black and her staff was working in tandem

with the Office of the Mayor in pursuit of a common goal, she did not act independently, but

only on the advice and guidance from the Office of the Mayor.

37. On November 29, 2010, the New York State Education Department

granted Ms. Black the requested certificate allowing her to serve as Chancellor.

38. Ms. Black began serving as Chancellor on January 1, 2011.

39. By email dated November 19, 2011 sent to Anthony Crowell,

Respondent's Records Access Officer, but addressed to the Records Access Officer of the New

York State Education Department, Petitioner requested copies of "E-mail messages sent from or

received by any state electronic email accounts assigned to the Office of the Mayor to or from an

individual named Cathleen Prunty 'Cathie' Black or email addresses containing the domain

hearst.com" pursuant to the New York State Freedom ofinformation Law, Article 6 § 84, et seg.

By subsequent emails dated November 19, 2010, Petitioner clarified that his request was

intended for the Office of the Mayor, not the State Education Department. A copy of Petitioner's

emails of November 19, 2011 (the "FOIL Request") is annexed to the Petition as Exhibit A.

40. A number of responsive documents were located following a reasonably

diligent search of Respondent's records. Each of these were documents that Ms. Black either

sent to someone at City Hall, or on which she was a recipient, either directly or as a "cc." There

were no responsive documents located to senders or recipients at a "hearst.com" domain other

than those sent to or received from Ms. Black, as described herein.

- 6 -

41. Although Petitioner purportedly sent his FOIL request in order to gain

insight and information into the process by which Ms. Black was selected to be Chancellor, none

of the responsive documents deal with the selection process.

42. The responsive documents concern the efforts of Respondent and Ms.

Black to clarify and expound on Ms. Black's background to serve as Chancellor, to address

questions about her qualifications and to discuss steps to ensure the success of her candidacy.

43. These documents also contain the private cell phone numbers and email

addresses of certain government officials and other stakeholders, who were to be contacted in

furtherance of these objectives.

44. None of these documents contains (i) statistical or factual tabulations or

data; (ii) instructions to staff that affect the public; (iii) a final agency policy or determination or

(iv) external audits.

45. By letter to Petitioner dat~d January 13, 2011 from Anthony Crowell,

Respondent denied Petitioner's FOIL request pursuant to N.Y. Public Officers Law§ 87(2)(b) on

the ground disclosure would constitute an unwarranted invasion of personal privacy, and

pursuant to N.Y. Public Officers Law § 87(2)(g) on the ground that the requested records were

inter-agency or intra-agency materials. A copy of Mr. Crowell's letter of January 13, 2011 to

Petitioner is annexed to the Petition as Exhibit B.

46. By emails dated January 19, 2011 sent to Deputy Mayor Carol Robles-

Roman, Respondenfs Records Access Appeals Officer, Petitioner appealed the determination of

January 13, 2011 denying is FOIL request. A copy of Petitioner's emails dated January 19,

2011, without attachments, is annexed to the Petition as Exhibit C.

-7-

47. By letter to Petitioner dated January 26, 2011, Deputy Mayor Carol

Robles-Roman upheld the determination to deny Petitioner's FOIL request, finding that it was

proper to withhold the requested records pursuant to N.Y. Public Officers Law§ 87(2)(b) on the

ground disclosure would constitute an unwarranted invasion of personal privacy, and purs\.tant to

N.Y. Public Officers Law § 87(2)(g) on the ground that the requested records were inter-agency

or intra-agency materials .. A copy of Deputy Mayor Robles-Roman's letter of January 26, 201 1

is annexed to the Petition as Exhibit D.

48. Petitioner commenced this proceeding on or about May 26, 201 1.

AS AND FOR A FIRST AFFIRMATIVE DEFENSE

49. The Petition fails to state a claim on which relief may be granted.

AS AND FOR A SECOND AFFIRMATIVE DEFENSE

50. Respondent fully complied with its statutory obligations.

AS AND FOR 'A THIRD AFFIRMATIVE DEFENSE

51. There is no basis for an award of costs and attorneys' fees.

- 8-

WHEREFORE, Respondent respectfully requests that the Petition be denied in

its entirety, and that it be awarded such other and further relief as this Court deems just and

proper.

Dated: New York, New York July 21, 2011

TO: SCHLAM STONE & DOLAN LLP Attorneys for Petitioner 26 Broadway, 191

h Floor New York, New York 10004 (212) 344-5400

MICHAEL A. CARDOZO Corporation Counsel for the City ofNew York Attorney for Respondent 100 Church Street, Room 2-121 New York, NY 10007 (212) 788-0f39

i

- 9 -

VERIFICATION

STATE OF NEW YORK ) . SS.: COUNTY OF NEW YORK )

ANTHONY CROWELL, being duly sworn, deposes and says that he is Counsel

to the Mayor; that he has read the foregoing Answer and knows the contents thereof, and that it

is true to his knowledge except as to the matters therein stated to be alleged upon infonnation

and belief, and as to those matters he believes them to be true; that the source of this infonnation

and the basis for his belief are the books and records of the Office of the Mayor and from

Sworn to before me this 21st day of July, 2011

If:~ Notary Public

~S'""r ~~~~~~w vor~ • NOtary Publ c.GE6l33390

No. 02 c ntv auallned ln !<lng~eptou w 201.}

commission e.xplres • •

~ 10 -

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION: FIRST DEPARTMENT

SERGIO HERNANDEZ,


-against-




NOTICE OF MOTION TO DISMISS APPEAL

SCHLAM STONE & DOLAN LLP Michael C. Marcus Elizabeth Wolstein

26 Broadway- 19th Floor New York, New York 10004

Telephone: (212) 344-5400 Facsimile: (212) 344-7677 [email protected]

Attorneys for Petitioner-Respondent Sergio Hernandez

notice of motion to dismiss appeal (hernandez)

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