NYCOURTS- NEW YORK COURT CORRUPTION

A Disturbing Court Decision for Real Estate Owners

2012-02-14T16:15:00.000-08:00

WV Supreme Court Rules on Confidentiality of Appraisal Reports

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Posted: Feb 13, 2012 1:31 PM ESTUpdated: Feb 13, 2012 2:23 PM EST

By Andrea Lannom - email

Appraisal reports of nonparty condemned properties are not discoverable in condemnation proceedings, West Virginia Supreme Court justices decided in a Feb. 10 ruling.

The appeal stems from two cases filed in Wood County Circuit Court by the state's Department of Transportation and the Division of Highways.

The state agencies sought the court to prohibit an order requiring them to turn over appraisal reports involving condemned properties in the South Mineral Wells project. The state agencies claimed the circuit court order violated federal confidentiality requirements.

The DOH condemned numerous properties in Wood County for the project including a Taco Bell, gas station, convenience store, parking area and a video lottery operation.

During the condemnation proceedings, property owners engaged in discovery seeking state agencies to turn over appraisal information.

Guided by State of West Virginia Department of Transportation v. Cookman, Wood County Circuit Judge Jeffrey B. Reed granted property owners' requests in a September 19 order.

"The result in Cookman was reached because the majority opinion declined to analyze the discovery of appraisal reports under federal law as requested by DOH," the Feb. 10 opinion stated. "If Cookman had applied federal law, the outcome in that case would have been different."

Justices overturned the Cookman case, saying it failed to consider federal law.

"The decision in Cookman failed to resolve the issue of the discoverability of federally-funded condemnation appraisal reports under the applicable federal law," the opinion stated. "The omission unquestionably provides this court with the special justification necessary for the departure from the doctrine of stare decisis."

In her dissent, Justice Margaret Workman explained property owners wanted the reports to see if they were receiving a "fair deal." Justice Brent Benjamin joined Workman in her dissent.

"It is important to note that the DOH used one appraiser to perform all of the appraisals on all of the properties in question," Workman's dissenting opinion stated.

Workman said the circuit judge made the right decision because he allowed property owners further protection.

"While I agree that the DOH is bound by federal law and must comply with all relevant regulations, the majority opinion's acceptance of the DOH's agreement amounts to nothing more than tortured logic," Workman wrote.

Workman said there is no provision to prevent a circuit judge from ordering the state agencies from producing the appraisal reports.

"The majority opinion's decision allows the DOH to do whatever it chooses to do in appraising land in future condemnation proceedings with neither any type of check on its actions nor any means for landowners whose property is being condemned to have any examination of the fairness and consistency or lack thereof by the government's appraisers," Workman wrote. "It further allows the DOH to do so under the guise of confidentiality even when there are relevant and material reasons for disclosing the appraisals to the respondents.

Attorney John M. Aversa is Disbarred After Acting As A Guardian And Submitting Unverified Petition For Probate

2012-02-07T19:25:00.000-08:00

LEGAL ETHICS

Lawyer Acting as Guardian Disbarred for Helping Ward Will $5M Estate to His Wife

Posted Aug 30, 2011 11:51 AM CST
By Martha Neil

Despite a hitherto unblemished disciplinary record over a 30-year legal career, a New York attorney appointed as a guardian to an incapacitated person has been disbarred for helping her prepare a will in favor of his wife.

John M. Aversa was appointed in July 2009, and the next month his ward got a settlement of over $5 million in a personal injury suit, recounts the Fourth Judicial Department of the New York Supreme Court Appellate Division in an opinion (PDF) earlier this month.

A court told Aversa to retain independent counsel to help the woman prepare a will. Instead he prepared the will himself without bringing in independent counsel or evaluating the woman's testimentary capacity. It named Aversa as the executor and his wife, under her maiden name, as the beneficiary. Two members of his immediate family were witnesses.

Besides committing what the court described as serious misconduct for personal gain, Aversa also "demonstrated a shocking lack of candor in this proceeding," the court wrote, "by belatedly presenting to the Grievance Committee a document designed to conceal his misconduct and by providing explanations for his conduct that lack credibility."

Aversa had claimed that the will was drafted in an effort to distribute his ward's assets to charity, as she wished, via his wife. He presented an unsigned, undated will addendum giving instructions to that effect after he was asked to resign as guardian, the opinion says.

Hat tip: Legal Profession Blog.

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
MATTER OF JOHN M. AVERSA, AN ATTORNEY, RESPONDENT. GRIEVANCECOMMITTEE OF THE SEVENTH JUDICIAL DISTRICT, PETITIONER. -- Order
of disbarment entered.

Per Curiam Opinion:

Respondent was admitted to the practice of law by this Court on February 18,
1981, and maintains an office in Niagara Falls. The Grievance Committee filed

a petition charging respondent with acts of
misconduct arising from his appointment as guardian of an
incapacitated person (hereafter, IP). Respondent filed an answer
admitting the material allegations of the petition and he
appeared before this Court and submitted matters in mitigation.
Respondent admits that, in July 2009, he was appointed as
guardian for the IP, who was a plaintiff in a pending personal
injury action. Respondent further admits that, in August 2009,
the IP received settlement funds in an amount in excess of $5
million and, on numerous occasions thereafter, Supreme Court
instructed respondent to retain independent counsel to draft a
will on behalf of the IP.

Respondent admits that, in contravention of those
instructions, he prepared a will for the IP, which was executed
in March 2010, appointing himself as sole executor of the estate
and designating respondent’s wife, in her maiden name, as sole
beneficiary of the will. Respondent further admits that, prior
to the execution of the will, the IP did not receive advice from
independent counsel and was not evaluated to determine if she
possessed testamentary capacity. In addition, respondent admits
that two members of his immediate family served as subscribing
witnesses to the will.

In June 2010, the court advised respondent in a letter that
his conduct in preparing the will, designating his wife as sole
beneficiary, and retaining counsel to probate the will was
improper, and the court requested that respondent resign as
guardian. Respondent admits that he thereafter resigned as
guardian without responding to the letter and did not attempt to
offer the will for probate. Additionally, respondent admits
that, during the investigation conducted by the Grievance
Committee into this matter, he produced a petition for probate,
which he had prepared and verified, that had not been filed and
that contained an undated, unsigned addendum purporting to
instruct respondent’s wife to distribute the IP’s assets to
charity. The petition for probate was verified by respondent two
days after the date of the letter from the court requesting his
resignation as guardian.

When respondent appeared before this Court in relation to
this matter, he submitted that he did not understand that his
conduct was improper and did not construe the instructions by the

court as a directive to retain independent counsel for the IP.
He further stated that he drafted the will in an attempt to
fulfill the IP’s testamentary wish to distribute her assets to
charity. We reject respondent’s explanation for his misconduct
as incredible.

We conclude that respondent has violated the following Rules
of Professional Conduct:
rule 1.8 (c) (1) (22 NYCRR 1200.0) - soliciting a gift from
a client, including a testamentary gift, for the benefit of the
lawyer or a person related to the lawyer;
rule 1.8 (c) (2) (22 NYCRR 1200.0) - preparing on behalf of
a client an instrument giving the lawyer or a person related to
the lawyer any gift where the lawyer or other recipient is not
related to the client and a reasonable lawyer would not conclude
that the transaction is fair and reasonable; and,
rule 8.4 (h) (22 NYCRR 1200.0) - engaging in conduct that
adversely reflects on his fitness as a lawyer.
In determining an appropriate sanction, we have considered
respondent’s previously unblemished record after 30 years in the
practice of law. Respondent, however, has committed serious
misconduct for personal gain. Additionally, respondent has
demonstrated a shocking lack of candor in this proceeding by
belatedly presenting to the Grievance Committee a document
designed to conceal his misconduct and by providing explanations
for his conduct that lack credibility.

Accordingly, after consideration of all of the factors in this matter, we conclude
that respondent should be disbarred.

PRESENT: CENTRA, J. P.,
PERADOTTO, LINDLEY, GREEN, AND MARTOCHE, JJ. (Filed Aug. 2,
2011.)

Office of Court Administration Finds Blacks and Latinos Are Underrepresented In Jury Pools

2012-02-07T11:37:00.000-08:00

Study find Blacks and Latinos are underrepresented in jury pools

By CRAIG D. FRAZIER Special to the AmNews | Posted: Thursday, February 2, 2012 12:00 am

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New York State's Office of Court Administration (OCA) released a yearlong data collection effort on the state's jury pools. The report points to an underrepresentation of African-Americans and Hispanics in jury pools in some New York jurisdictions.

The report and study are the result of state legislation. The Jury Pool Fair Representation Act (A.2374/S.2613), introduced by Assembly Members Rory Lancman and Hakeem Jeffries and State Sen. Jeff Klein, was passed into law in 2010. It requires that jury pool demographic data be recorded in order to determine whether jurors in New York State represent a fair cross section of the community.

New York is a recognized leader in implementing procedures designed to increase jury participation. New York meets every standard that has been recommended for maximizing jury representation by the American Bar Association and the National Center for State Courts.

As of Oct. 10, 2011, the statewide-automated Jury Management System reported that 491,382 jurors had served between Sept. 13, 2010, and Sept. 9, 2011. Seventeen percent of those jurors were Black.

"OCA's unprecedented demographic survey shows that some New Yorkers are less likely than others to be tried by a jury of their peers," said Lancman. "I look forward to working with my colleagues in the Legislature, bar leaders, community representatives and OCA to develop and implement strategies for making our juries fairly representative of the communities they hail from."

Report findings on juror demographic data in specific counties in New York State indicate a discrepancy between jury pool members identified as African-American or Hispanic and their respective representation in the general population.

In Queens, the representation of Hispanics in jury pools was 35 percent lower than their representation in the general population. Those surveyed in Queens who self-identified as "Other" were underrepresented by 41 percent. In addition to Queens, Hispanics were underrepresented by 39 percent in Nassau, 22 percent in New York, 47 percent in Suffolk and 45 percent in Westchester counties.

"Everyone deserves the same shot at justice," Klein said. "We must examine the findings of this report and make the necessary changes to ensure that our court system upholds our values in every community across New York State."

Scranton PA Parents Question The Use Of Danielle Ross as a Guardian As Litem

2012-02-06T20:20:00.000-08:00

November 20, 2011

Parents target family court

By Christopher J. Hughes chughes@golackawanna.com
Go Lackawanna Editor

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SCRANTON - A group of parents demonstrating on Courthouse Square Friday morning across from the Lackawanna County Administration Building at 200 Adams Ave., Scranton, said they feel the county’s family court and guardian ad litem are the focus of an investigation by the Federal Bureau of Investigation.

The Administrative Office of Pennsylvania Courts defines a guardian ad litem as a “person appointed by a court to look after interests of a minor or incapacitated person involved in legal proceedings.”

But parents holding signs suggesting county officials “Toss Ross” and handing out literature about the county’s guardian ad litem system said that was not the case.

Olyphant resident Cherie Matassa said guardian ad litem Danielle Ross, who is supposed to represent her two children in a custody battle that began in March 2010, has not listened to their own wishes.

Matassa claimed that Ross forced her to provide visitation rights to her ex-husband, who she did not name but claimed is employed in Lackawanna County government, despite the children’s expressed wishes.

“I paid her to be their voice... She didn’t care what they said,” she said.

Matassa fears that she could eventually lose custody of her children because of the actions in family court, but a visit by the FBI to the Lackawanna County court administrator’s office on Monday gives her hope that such issues could begin to be resolved.

Efforts to reach Ross for comment at her office in the county administration building and by phone Friday afternoon were not successful.

When contacted earlier this week regarding the FBI’s search at the Lackawanna County Courthouse, Court Administrator Ron Mackay, FBI Special Agent J.J. Klaver, and spokesperson for the U.S. Attorney’s Officer Heidi Havens each declined comment on the nature of the ongoing investigation.

Dawn Lewis of Scranton claimed that her father-in-law’s working relationship with a current county judge prevented her from keeping full custody of her now-7-year-old son after his father died from cancer in 2010.

Lewis said the Ross is also her child’s appointed guardian ad litem.

“My son was seen twice for a total of 22 minutes,” Lewis said. “During this 22 minutes, Ms. Ross came to her own conclusions and figured out what was best for my (then-) 5-year-old son who was grieving the loss of his father. She decided he needed to spend three out of five days with his grandparents. Custody? Visitation? No. That’s co-parenting, and that is not right.”

Lewis said she’s working to get a new court date after more than 18 months of legal battles. She believes that the FBI is looking into the finances of family court and that it “is only the tip of the iceberg.”

Another woman from Blakely also feels she was treated unfairly by the county’s family court system. She said Ross, her children’s court guardian, gave custody of her children to a man with whom she had a prior relationship.

That man, Maurice Wayne Hunting III, was charged Sept. 28 with rape of a child, involuntary deviate sexual assault of a child, indecent assault of a person under age 13, corruption of minors, and contact with minors involving sexual offenses, according to court records.

Charges were held for county court after an Oct. 5 preliminary hearing, and a formal arraignment was set for Nov. 18.

The woman, who is not being named to protect the identity of the alleged victims, said she hopes that an investigation by the FBI will end troubles in the Lackawanna County court system.

Elderly Woman Loses Brownstone to Brooklyn Courts' Inside Baseball

2012-02-05T00:00:00.000-08:00

Elderly Woman Loses Brownstone to Brooklyn Courts' Inside Baseball

AA ACommentsBy Joe Calderone Tuesday, Apr 30 2002

...continued from page 1

"Why should I have any less rights than anyone else to buy the house just 'cause I work in the courts?" said Randall, who acknowledged the sale might "look funny," but said it was "on the up and up."

Kilfoyle, however, said he couldn't remember if Randall came to him seeking permission. He said he did recall Crowley's complaints, which he said he reported to Judge Michael Pesce, the chief administrative judge in Brooklyn at the time. "My initial reaction was to report it to my superior," Kilfoyle said.

What I did was not wrong," Randall said. "In terms of appearance, on face value, I could understand where you'd have some concern. But it was done on the up and up to help the woman. She wanted to stay in her home. She didn't want to go to a nursing home. This way she was able to stay and she was happy. I felt good about it. She was able to live out her last days the way she wanted to."

Randall denied that he got any special deal, although he said one reason he was attracted to the house was because of the price."

I was single [at the time]. I needed something to help me with taxes. I'm looking for a house and the price wasn't unreasonable and it was a chance to help someone out.

"The place was no bargain. It needed a lot of work," he said.

After the purchase, Randall said he invested between $20,000 and $30,000 in new windows and other repairs.

David Bookstaver, a spokesman for the Office of Court Administration, which oversees the courts, defended the deal, an unusual stance given recent moves by Chief Judge Judith Kayeand her number two, Chief Administrative Judge Jonathan Lippman, to at least give the appearance of breaking up the insider politics pervading business in Brooklyn civil court. It was Kaye and Lippman who, in the wake of Judge Barron's arrest, eased Pesce out of his post as administrative judge in favor of Judge Ann Pfau, an aide to Lippman who is seen by many Court Street lawyers as nothing less than an invading force whose mission is to tighten OCA's grip on the Brooklyn courthouse.

Bookstaver said the unadvertised sale of Perry's home to Scholnick's clerk did not trouble the powers that be within OCA.

"It was brought to the attention of counsel's office, and an opinion was given that there was nothing untoward or unethical about the transaction. It was not done in a vacuum. The final outcome did this woman a tremendous favor," Bookstaver said.

Terrelonge, the guardian who pushed for the sale, went on to serve as president of the Brooklyn Bar Association before dying this year after an illness. The bar association helps screen those seeking election to the bench, and the sometimes cozy relationships between lawyers active in the bar and judges they appear before has been sharply criticized.

Experts question why Terrelonge and Scholnick didn't push for a competitive sale of the home or devise another arrangement, short of a sale, that would have allowed Perry to draw on the equity in her home without having to give up ownership. Laws governing the disposal of property owned by incompetents require that the property be advertised for four successive weeks by a notice of sale "posted conspicuously on the premises" and by the publication of a notice of sale advertisement.

But in court papers signed by Judge Scholnick, Terrelonge argued successfully that those requirements be waived. Perry's brownstone was not advertised out of a fear "that posting and publication would be an open invitation for vandalism to the property and could bring about a danger to the occupants of the premises," Terrelonge stated.

Legal experts who advocate for the elderly said judges have a responsibility to look out for the needs of incompetents and avoid even the appearance of impropriety. "The bottom line is the interests of the incapacitated person have to be protected," said Toby Golick, director of Cardozo Law School's Bet Tzedek Legal Services.

Golick said it would be difficult to justify not advertising Perry's property on the open market. "It might be appropriate not to put up a for sale sign, but that doesn't mean there shouldn't be an effort to get the best price for a property by, for example, using a real estate agent or otherwise advertising."

One Brooklyn lawyer who specializes in elder law said the deal "smells. At the very least he [the judge] should have recused himself. Let another judge sign the order."

The lawyer also questioned why the house had to be sold at all. "Why sell her house? You could get a reverse mortgage."

In an appearance before a different Brooklyn Supreme Court judge, Sebastian Leone, who approved the final terms of the sale, Perry eventually agreed to the sale of her home. But she pleaded with the lawyers to not take advantage of her.

"I consent to it, but just give me someone to treat me good and don't take all the money from me. Let me live happy till I die."

Additional reporting: Ed Barrera

Queens, NY - Judge of Mazoltuv Borukhova Case Steps Down from Other Custody Battle

2012-02-04T13:49:00.000-08:00

Queens, NY - Judge of Mazoltuv Borukhova Case Steps Down from Other Custody Battle

LINK

Queens, NY - A judge has decided to back out of a wrenching custody battle involving a 10-year-old boy whose TV commentator mom accused the judge of putting suicidal thoughts in the boy’s head.

Queens Supreme Court Justice Sidney Strauss announced Friday that he will hand off the case involving Fordham University Law professor Annemarie McAvoy to another judge.

Strauss didn’t address the nasty allegations lobbed by McAvoy, which caused the case to be moved to a Brooklyn judge for an emergency hearing two weeks ago.

“I think Judge Strauss has acted in a very wise way throughout a very difficult process,” said Justice Jeremy Weinstein, the administrative judge for the civil division of Queens Supreme Court. “He wants the case to be done. This matter has dragged on for many months, and that does nobody any good.”

Weinstein will pick a new judge Monday.

McAvoy claims that after Strauss refused to change custody in September, the youngster talked about killing himself or his father.

“I guess I’m the one who created the suicidal ideation, then,” Strauss said. “I didn’t tell him what he wanted to hear.”

The same judge made another controversial custody switch in 2007, placing a toddler with her dad against the recommendations of all involved.

The girl's distraught mother, Mazoltuv Borukhova, then had the father killed. The custody change was presented as her motive at her murder trial.

U.S. Appeals Court: "Pay To Play" Rules Do Not Violate Free Speech Rights

2012-02-02T09:43:00.000-08:00

Challenge to NY campaign finance laws fails: US appeals court

12/21/2011COMMENTS (0)

NEW YORK, Dec 21 (Reuters) - A U.S. appeals court on Wednesday tossed out a challenge to New York City anti-corruption campaign finance laws, finding the so-called "pay to play" rules do not violate free speech rights.

In an opinion affirming a 2009 lower court ruling, the 2nd U.S. Circuit Court of Appeals in New York said city rules prohibiting corporate contributions to political campaigns, and requiring candidates to disclose contributions from people and groups that do business with the city, were appropriate given legitimate concerns about corruption.

"Contributions to candidates for city office from persons with a particularly direct financial interest in these officials' policy decisions pose a heightened risk of actual and apparent corruption, and merit heightened government regulations," the opinion by judges Debra Livingston, Guido Calabresi and Paul Crotty said.

The lawsuit, brought by Republican politician Tom Ognibene and others, sought to use the landmark 2010 U.S. Supreme Court decision Citizens United v. Federal Election Commission to attack the New York City laws.

In Citizens United, the Supreme Court found that the government cannot ban political spending by corporations in elections. The 2nd Circuit judges said that ruling only applies to independent corporate expenditures, and not to contributions limits such as those enacted in New York.

"There is no doubt that the threat of corruption or its appearance is heightened when contributors have business dealings with the city," the court said. "Accordingly, it is reasonable and appropriate to further limit their contributions."

A lawyer for Ognibene did not immediately return a call seeking comment.

In a separate concurring opinion, Judge Calabresi said he agreed with the majority view, but criticized the Supreme Court "Citizens United" decision. By preventing governments from regulating contributions in an effort to protect the free speech of donors, the decision had the effect of prohibiting them from "leveling the playing field," Calabresi said.

"In much the same way that anti-noise ordinances help to prevent megaphone users from downing out all others in the public square, contribution limits can serve to prevent their wealthiest donors from rendering all other donors irrelevant --from, in effect, silencing them."

(Reporting by Basil Katz)

New York City Accuses US District Court Judge Nicholas Garaufis of Bias

2012-01-21T23:43:00.000-08:00

New York City accuses Brooklyn judge of bias

1/20/2012COMMENTS (0)

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New York City is squaring off against the federal judge who oversaw its years-long litigation with minorityfirefighters, accusing him of bias and a "preoccupation with press coverage."

Throughout the litigation over hiring discrimination, U.S. District Judge Nicholas Garaufis in Brooklyn "displayed a pervasive propensity to excuse shortcomings" in the firefighters' evidence and "discount, or simply ignore," the city's proof, according to the 137-page brief filed by the city Wednesday with the U.S. Court of Appeals for the Second Circuit.

The city is asking the Second Circuit to throw out a sweeping injunction issued by Garaufis last year and order a new trial overseen by a "neutral arbiter."

The lawsuit was filed in 2007 by the U.S. Department of Justice and later joined by a fraternal organization of black firefighters known as the Vulcan Society, and accused the city of systemic discrimination against minorities looking for a job with the New York City Fire Department, or FDNY.

In a series of rulings, Garaufis sided with the plaintiffs and held that, between 1999 and 2007, the department's written examination had "discriminatory effects" on minority applicants.

Following a three-week bench trial in August, he ordered a court-appointed monitor to oversee a "long-term top-to-bottom reassessment" of the city's recruitment process of minority firefighters.

The city has appealed the ruling in an attempt to vacate the injunctive relief.

Now, it is making the judge a focal point of its problems with the court's remedy.

"The picture that emerges is that of a court bound and determined to justify closely supervised 'top-to-bottom' injunctive relief," the city wrote in Wednesday's brief.

'PREOCCUPATION WITH PRESS COVERAGE'

The city accused Garaufis of inserting himself into the case by calling his own witnesses and injecting his own experiences into the proceedings. He also allegedly goaded the city by appointing former Manhattan District Attorney Robert Morgenthau -- who has "a long, acrimonious and well-known history of conflict with many city officials directly involved in this case, as well as the city itself" -- as a special master to oversee the city's development of a new firefighter test, according to the brief.

Morgenthau later voluntarily stepped down and was replaced by Debevoise & Plimpton partner and former U.S. Attorney for the Southern District of New York Mary Jo White.

But the Morgenthau episode "speaks volumes about the court's lack of detachment," the city wrote. It also pointed out several instances it said were indications that Garaufis was "influenced" by critical statements made by city officials in the press about the case.

"The nature and extent of the foregoing errors, especially the one-sided manner in which the evidence was analyzed, called the district court's impartiality into serious question, as does its preoccupation with press coverage surrounding the case," the city wrote.

Garaufis, through a law clerk, declined to comment on the city's allegations. He was appointed to the federal bench in 2000 by President Bill Clinton.

Darius Charney, a senior staff attorney with the Center for Constitutional Rights representing the Vulcan Society, said he disagreed with the city's portrayal of Garaufis' conduct.

"We think the judge got it right on the law, and his decision was supported by the facts that were in evidence during the three-week trial in August," Charney said.

The firefighter and government plaintiffs' reply brief is due March 2. A spokesman for the U.S. Attorney's Office for the Eastern District of New York declined to comment.

The case is U.S. v. City of New York, in the U.S. District Court for the Eastern District of New York, No. 07-2067.

For the U.S.: Assistant U.S. attorneys Elliot Schachner, Michael Goldberger and David Eskew for the U.S. Attorney's Office, Eastern District of New York; and Eric Bachman, Sharon Seeley, Allan Townsend, Barbara Schwabauer, Jennifer Swedish, Meredith Burrell and Varda Hussain of the U.S. Department of Justice.

For the Vulcan Society: Richard Levy, Dana Lossia and Robert Stroup of Levy Ratner; Anjana Samant and Darius Charney for the Center for Constitutional Rights; and Judith Scolnick of Scott and Scott.

For New York City: Assistant Corporation Counsels Georgia Pestana, William Fraenkel, Edward Sample, James Lemonedes, Kami Barker, Kathleen Comfrey, Patricia Miller and Vivien Ranada.

(Reporting By Jessica Dye)

Gizella Loses Her Appeal Against Disbarred Attorney Edward Fagan

2012-01-21T23:41:00.000-08:00

WEISSHAUS v. FAGAN

GIZELLA WEISSHAUS, Plaintiff-Counterclaim-Defendant-Appellant,
v.
EDWARD D. FAGAN, Defendant-Counter-Claimant-Appellee,
STATE OF NEW YORK, OFFICE OF COURT ADMINISTRATION OF THE UNIFIED COURT SYSTEM, JUDITH N. STEIN, in her official and individual capacity, THOMAS J. CAHILL, in his official and individual capacity, HAL R. LIEBERMAN, in his official and individual capacity, JOHN DOES, 1-20, JANE DOES, 1-20, ALAN W. FRIEDBERG, in his official and individual capacity, MEL URBACH, SAUL E. FEDER, Defendants-Appellees.

No. 10-3199-cv.

United States Court of Appeals, Second Circuit.

January 19, 2012.

Gizella Weisshaus, pro se, Brooklyn, NY., for Appellant.

Barbara D. Underwood, Solicitor General; Michael S. Belohavek, Senior Counsel to the Solicitor General; and Laura R. Johnson, Assistant Solicitor General, on behalf of Eric T. Schneiderman, Attorney General of the State of New York, for the State of New York, the New York State Office of Court Administration of the Unified Court System, Judith N. Stein, Thomas J. Cahill, Hal R. Lieberman, and Alan W. Friedberg, for Appellees.

Thomas A. Leghorn, Wilson, Elser, Moskowitz, Edelman & Dicker LLP, New York, NY, for Saul E. Feder.

Jonathan R. Harwood, Traub Lieberman Straus & Shrewsberry LLP, Hawthorne, NY, for Mel Urbach.

Edward D. Fagan, pro se, Springfield, NJ.

Present: ROBERT A. KATZMANN, GERARD E. LYNCH, Circuit Judges, LEWIS A. KAPLAN, District Judge.^*

SUMMARY ORDER

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.

Appellant Gizella Weisshaus, proceeding pro se, appeals from the district court's judgment dismissing her action against her former (and now disbarred) attorney, Edward D. Fagan, as well as several other defendants, in which she principally accused Fagan of various wrongdoing during the course of their attorney-client relationship, and asserted civil rights claims against all defendants relating to the alleged "whitewashing" of ethics complaints she had filed against Fagan with a state disciplinary authority. We assume the parties' familiarity with the underlying facts, procedural history of the case, and issues on appeal.

I. Recusal Decision

Weisshaus first challenges the district court's denial of her recusal motion. "Recusal motions are committed to the sound discretion of the district court, and [we] will reverse a decision denying such a motion only for abuse of discretion." LoCascio v. United States, 473 F.3d 493, 495 (2d Cir. 2007) (per curiam). The timeliness of a recusal motion is a "serious threshold question," and it is "well-settled that a party must raise its claim of a district court's disqualification at the earliest possible moment after obtaining knowledge of facts demonstrating the basis for such a claim." Apple v. Jewish Hosp. & Med. Ctr., 829 F.2d 326, 333 (2d Cir. 1987). In considering the question of timeliness, "[a] number of factors must be examined, including whether: (1) the movant has participated in a substantial manner in trial or pre-trial proceedings; (2) granting the motion would represent a waste of judicial resources; (3) the motion was made after the entry of judgment; and (4) the movant can demonstrate good cause for delay." Id. at 334 (internal citations omitted).

In this case, Weisshaus's recusal motion was untimely for the reasons articulated by the district court in its thorough and well-reasoned decision. See Weisshaus v. New York, No. 08 Civ. 4053(DLC), 2009 WL 4823932 (S.D.N.Y. Dec. 15, 2009). Briefly stated, Weisshaus waited almost nineteen months after filing her complaint to file the recusal motion, at which point the district court had already expended substantial judicial resources overseeing and adjudicating Weisshaus's claims. Moreover, Weisshaus's contention that she had good cause to delay until the other defendants were dismissed from the action is entirely unfounded, as Weisshaus herself concedes that Fagan is "the primary defendant" in this matter and that all facts concerning the district judge's involvement in prior actions involving Fagan and Weisshaus were already known. Although there was no dispositive ruling as to Fagan at the time Weisshaus brought her recusal motion, the district court aptly noted that the motion came on the heels of its direction that Weisshaus submit to a deposition, thus strongly suggesting that the motion was a mere fall-back position in response to an adverse ruling. See In re Int'l Bus. Machs. Corp., 45 F.3d 641, 643 (2d Cir. 1995) ("[A] prompt application avoids the risk that a party is holding back a recusal application as a fall-back position in the event of adverse rulings on pending matters."). The district court, therefore, acted well within its discretion in finding Weisshaus's recusal motion untimely.

Even if the motion had been timely, however, it was wholly without merit for the reasons explained by the district court. Indeed, Weisshaus appears to have abandoned almost all of the arguments she asserted below, contending on appeal only that the district court could not impartially consider Weisshaus's claim that Fagan breached his fiduciary duty by failing to appeal a ruling issued by the district court in an earlier case. This argument is entirely unavailing. Whether Fagan breached his fiduciary by allegedly ignoring his client's request to file an appeal, see Pl.'s Br. 11, is an issue divorced from the merits of the underlying case. Moreover, recusal pursuant to 28 U.S.C. § 455(a) is generally limited to those circumstances in which the alleged partiality "stems from an extrajudicial source." United States v. Carlton, 534 F.3d 97, 100 (2d Cir. 2008) (internal quotation marks and brackets omitted). Accordingly, "judicial rulings alone almost never constitute a valid basis for a bias or partiality motion," and "opinions formed by the judge on the basis of facts introduced or events occurring in the course of the current proceedings, or of prior proceedings, do not constitute a basis for a bias or partiality motion unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible."Liteky v. United States, 510 U.S. 540, 555 (1994). Because Weisshaus does not and cannot argue that the district court's opinion displayed even a hint of partiality, let alone a "deep-seated favoritism or antagonism," her challenge to the district court's denial of her recusal motion must be dismissed.

FRANK LOCASCIO, Petitioner-Appellant, v. UNITED STATES OF AMERICA, Respondent-Appellee.
Docket No. 05-6761-pr
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
473 F.3d 493; 2007 U.S. App. LEXIS 387
December 5, 2006, Argued
January 9, 2007, Decided
SUBSEQUENT HISTORY: As Amended February 13, 2007; As Amended March 1, 2007.
US Supreme Court certiorari denied by LoCascio v. United States, 552 U.S. 1010, 128 S. Ct. 554, 169 L. Ed. 2d 374, 2007 U.S. LEXIS 12093 (2007)
Post-conviction proceeding at, Motion denied by United States v. LoCascio, 2011 U.S. Dist. LEXIS 94618 (E.D.N.Y., Aug. 24, 2011)

PRIOR HISTORY: [**1] Appeal from a judgment of the United States District Court for the Southern District of New York (I. Leo Glasser, Judge), denying petitioner's amended motion to vacate, set aside or correct his sentence under 28 U.S.C. § 2255. Because the District Court acted within its permissible discretion in denying petitioner's recusal motion, and because it properly determined that the alleged death threat to petitioner's counsel was not the cause of any lapse in representation, we affirm the denial of post-conviction relief.
LoCascio v. United States, 462 F. Supp. 2d 333, 2005 U.S. Dist. LEXIS 29562 (E.D.N.Y., 2005)

DISPOSITION: AFFIRMED.

CASE SUMMARY

PROCEDURAL POSTURE: Petitioner prisoner appealed from a judgment of the United States District Court for the Southern District of New York denying petitioner's amended motion to vacate, set aside or correct his sentence under 28 U.S.C.S. § 2255.

OVERVIEW: Petitioner's amended motion raised an ineffective assistance of counsel claim, based on allegations that petitioner's attorney at his criminal trial altered his defense strategy after receiving a death threat from defendant's co-defendant. The court previously remanded the case for an evidentiary hearing so that the district court could ascertain the existence of the alleged conflict created by the death threat and any resultant lapse in representation. On remand, petitioner's motion to recuse the district court judge under 28 U.S.C.S. § 455 was denied. The court held that the district court acted within its discretion in denying petitioner's motion, as the judge's rulings did not raise a deep-seated and unequivocal antagonism toward petitioner that would render fair judgment impossible. Additionally, the district court judge did not improperly decide the recusal motion himself, and there was a protracted and unexplained delay in contesting a remark made by the judge until after the judge had denied petitioner 28 U.S.C.S. § 2255 petition. The district court also properly determined that the alleged death threat to petitioner's counsel did not cause a lapse in representation.

OUTCOME: The court affirmed the denial of post-conviction relief.

CORE TERMS: recusal, criminal trial, partiality, amend, bias, death threat, evidentiary hearing, disqualification, interviewer, antagonism, aff'g, cross-examination, new trial, ineffective assistance of counsel, counsel's performance, defense strategy, conflict of interest, reasonable person, quotation marks omitted, disassociate, intimidated, deep-seated, disqualify, favoritism, dismissive, pre-trial, contempt, feelings, recuse, murder

LexisNexis® Headnotes Hide Headnotes

Criminal Law & Procedure > Pretrial Motions & Procedures > Disqualification & Recusal
Criminal Law & Procedure > Trials > Judicial Discretion
Criminal Law & Procedure > Appeals > Standards of Review > Abuse of Discretion > General Overview

^HN1

Recusal motions are committed to the sound discretion of a district court, and a circuit court of appeals will reverse a decision denying such a motion only for abuse of discretion. Judicial rulings alone almost never constitute a valid basis for a bias or partiality motion. Furthermore, opinions formed by the judge on the basis of facts introduced or events occurring in the course of the current proceedings, or of prior proceedings, do not constitute a basis for a bias or partiality motion unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible.

Criminal Law & Procedure > Pretrial Motions & Procedures > Disqualification & Recusal

^HN2

Under the objective partiality standard of 28 U.S.C.S. § 455(a), a court must determine the existence of the appearance of impropriety not by considering what a straw poll of the only partly informed man-in-the-street would show, but by examining the record facts and the law, and then deciding whether a reasonable person knowing and understanding all the relevant facts would recuse the judge.

Criminal Law & Procedure > Pretrial Motions & Procedures > Disqualification & Recusal

^HN3

Recusal motions are to be made at the earliest possible moment after obtaining knowledge of facts demonstrating the basis for such a claim.

Criminal Law & Procedure > Pretrial Motions & Procedures > Disqualification & Recusal

^HN4

In determining the untimeliness of a recusal motion, some relevant factors include whether: (1) the movant has participated in a substantial manner in trial or pre-trial proceedings; (2) granting the motion would represent a waste of judicial resources; (3) the motion was made after the entry of judgment; and (4) the movant can demonstrate good cause for delay.

Criminal Law & Procedure > Pretrial Motions & Procedures > Disqualification & Recusal

^HN5

A judge has an affirmative duty to inquire into the legal sufficiency of such an affidavit and not to disqualify himself unnecessarily, particularly where the request for disqualification was not made at the threshold of the litigation and the judge has acquired a valuable background of experience. To be legally sufficient, an affidavit "must give fair support to the charge of a bent of mind that may prevent or impede impartiality of judgment.

COUNSEL: HERALD PRICE FAHRINGER, Fahringer & Dubno-Herald Price Fahringer PLLC (Erica T. Dubno, on the brief), New York, NY, for Petitioner.

BARBARA UNDERWOOD, Assistant United States Attorney (Thomas Firestone, Assistant United States Attorney, of counsel; Roslynn R. Mauskopf, United States Attorney for the Eastern District of New York, on the brief), New York, NY, for Respondent.

JUDGES: Before: CARDAMONE and STRAUB, Circuit Judges, and KOELTL, District Judge. ^*

* The Honorable John G. Koeltl, United States District Judge for the Southern District of New York, sitting by designation.

OPINION

[*494] Per Curiam:

Petitioner-Appellant [**2] Frank LoCascio appeals from the judgment of the United States District Court for the Southern District of New York (I. Leo Glasser, Judge), denying his amended motion to vacate, set aside or correct his life sentence pursuant to 28 U.S.C. § 2255. The amended motion raised an ineffective assistance of counsel claim, based on allegations that LoCascio's attorney at the criminal trial, Anthony Cardinale, altered his defense strategy after receiving a death threat from LoCascio's co-defendant, John Gotti. We previously remanded the case for an evidentiary hearing so that the District Court could ascertain "the existence of both the alleged conflict created by the death threat and any resultant lapse in representation reflected by the alleged change in Cardinale's conduct of LoCascio's defense." LoCascio v. United States, 395 F.3d 51, 57 (2d Cir. 2005).

In accordance with our instructions, the District Court conducted an evidentiary hearing, at which Cardinale was the sole witness. Based on Cardinale's testimony, and applying the legal standards set forth in our remand order, the District Court [*495] denied LoCascio's § 2255motion. After careful [**3] review of the record and due consideration of Petitioner's arguments, we affirm on the basis of the District Court's finding that any failure to individuate LoCascio was the result of the joint defense strategy between LoCascio and Gotti, not Gotti's alleged death threat against Cardinale. LoCascio v. United States, No. 00 CV 6015(ILG), 462 F. Supp. 2d 333, 338-339 (E.D.N.Y. 2005); see LoCascio, 395 F.3d at 58. Because the District Court's finding of no causation is sufficient to sustain the judgment, we find it unnecessary to determine whether the questions Cardinale testified he might have asked Sammy Gravano, a goverment witness, constituted a "'plausible alternative defense not taken up by counsel.'" LoCascio, 395 F.3d at 56 (quoting United States v. Moree, 220 F.3d 65, 69 (2d Cir. 2000)). ¹

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1 After concluding that LoCascio had failed to demonstrate a basis for relief based on the alleged actual conflict of interest, in accordance with the remand from this Court, the District Court stated that "[o]bedience to the teachings of Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), drives me as well to the conclusion that this motion must be denied." LoCascio, 462 F. Supp. 2d at 341 (emphasis added). The Strickland test for ineffectiveness of counsel requires a showing that counsel's performance was objectively unreasonable and prejudiced the client, that is, that there is a reasonable probability that but for counsel's professional errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 694. However, prejudice is presumed where a defendant shows an actual conflict that adversely affected his counsel's performance. Id. at 692; LoCascio, 396 F.3d at 56. The Strickland standard of prejudice therefore did not apply in this case, but it was referred to only after Judge Glasser had already determined that no relief was warranted under the proper standard applicable to an alleged actual conflict of interest. Therefore, the reference to the alternative holding under Strickland does not require a remand.

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[**4] Following remand, just three days before the evidentiary hearing was scheduled to begin, LoCascio filed a motion to recuse or disqualify Judge Glasser pursuant to 28 U.S.C. §§ 144 and 455. The supporting affidavits, filed by LoCascio and his habeas counsel, pointed to the following as evidence of Judge Glasser's alleged personal bias and prejudice: (1) the fact that Judge Glasser held Cardinale in summary contempt during the criminal trial; (2) Judge Glasser's repeated denial of LoCascio's pre-trial, trial, and post-conviction motions, and in particular, his denial of LoCascio's motion to amend the § 2255 petition on the ground that the ineffective assistance of counsel claim was "meritless"; and (3) Judge Glasser's comment to an interviewer that he was not intimidated during the criminal trial. Judge Glasser denied the motion, which LoCascio now challenges on appeal.

^HN1Recusal motions are committed to the sound discretion of the district court, and this Court will reverse a decision denying such a motion only for abuse of discretion. United States v. Arena, 180 F.3d 380, 398 (2d Cir. 1999), cert. denied, 531 U.S. 811, 121 S. Ct. 33, 148 L. Ed. 2d 13 (2000). [**5] We have reviewed the record in light of LoCascio's allegations, and we find his arguments to be wholly without merit. As Judge Glasser explained in his thorough opinion, "judicial rulings alone almost never constitute a valid basis for a bias or partiality motion."LoCascio v. United States, 372 F. Supp. 2d 304, 315 (E.D.N.Y. 2005); see also Liteky v. United States, 510 U.S. 540, 555, 114 S. Ct. 1147, 127 L. Ed. 2d 474 (1994). Furthermore, "opinions formed by the judge on the basis of facts introduced or events occurring in the course of the current proceedings, or of prior proceedings, do not constitute a basis for a bias or partiality motion unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible." [*496] Liteky, 510 U.S. at 555. Judge Glasser's decision to hold Cardinale in contempt in 1992 (which Judge Glasser subsequently vacated), and his rulings on LoCascio's numerous motions over the past fourteen years, see LoCascio, 372 F. Supp. 2d at 306 n.2, do not raise even a suspicion of a "deep-seated and unequivocal antagonism that would render fair judgment impossible," Liteky, 510 U.S. at 556. [**6] ²

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2 See, e.g., United States v. LoCascio, 6 F.3d 924 (2d Cir. 1993) (affirming judgment of conviction against challenges to the District Court's impanelment of an anonymous sequestered jury, disqualification of defense attorneys, admission of expert testimony on crime families, giving of certain jury instructions on murder and murder conspiracy, refusal to sever LoCascio's trial, and denial of motion for new trial); United States v. Gotti, 166 F.3d 1202 (Table), 1998 WL 870230, at *1 (2d Cir. Dec. 8, 1998) (unpublished disposition) (affirming the District Court's denial of a subsequent motion for new trial and stating, "Judge Glasser carefully considered, and ultimately rejected, each of these contentions . . . . Although LoCascio attempts to recast some of these arguments before this court, we are not persuaded that we should disturb any of Judge Glasser's carefully reasoned holdings on this appeal"), aff'g 171 F.R.D. 19 (E.D.N.Y. 1997).

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LoCascio contends [**7] that Judge Glasser's comment to an interviewer following the criminal trial manifests his "dismissive attitude about the threat of bombs planted in his chambers[, which] would certainly lead any objective observer to question his ability to disassociate his own personal feelings from those that frightened Anthony Cardinale." LoCascio's argument is based on the following exchange:

[Interviewer:] Did . . . you feel intimidated during the trial?

Judge Glasser: No.

We see nothing in Judge Glasser's one-word response that might indicate a "dismissive attitude" about bomb threats, or raise any doubt in the mind of a reasonable person as to his ability to decide the present case fairly. See United States v. Bayless, 201 F.3d 116, 126-27 (2d Cir. 2000) (stating that ^HN2under the objective partiality standard of 28 U.S.C. § 455(a), the Court must determine "the existence of the appearance of impropriety . . . not by considering what a straw poll of the only partly informed man-in-the-street would show[,] but by examining the record facts and the law, and then deciding whether a reasonable person knowing and understanding [**8] all the relevant facts would recuse the judge" (second alteration in original; internal quotation marks omitted)), cert. denied, 529 U.S. 1061, 120 S. Ct. 1571, 146 L. Ed. 2d 474 (2000). If anything, Judge Glasser's remark confirms his capacity to disassociate his own personal feelings and focus solely on the merits of the case before him.

In his brief to this Court, LoCascio cites another remark as constituting grounds for recusal, specifically, Judge Glasser's comment during a January 2003 scheduling hearing that he may institute disbarment proceedings against Cardinale. LoCascio did not raise this argument in his recusal motion to the District Court. Although we are not required to consider issues raised for the first time on appeal, we do so here to dispel any insinuation of bias or partiality on the part of Judge Glasser. See Greene v. United States, 13 F.3d 577, 586 (2d Cir. 1994) (stating that a panel may, in its discretion, consider an issue raised for the first time on appeal "if the elements of the claim were fully set forth and there is no need for additional fact finding"). First, we find that the comment, read in context, ³ cannot reasonably [*497] be [**9] construed as exhibiting personal animosity towards Cardinale or LoCascio (neither of whom was present), or displaying hostility towards LoCascio's claim. Rather, Judge Glasser was simply noting some issues that might require further consideration, for purposes of setting a briefing schedule on LoCascio's motion. In any event, because the comment revealed neither "an opinion that derives from an extrajudicial source" nor "such a high degree of favoritism or antagonism as to make fair judgment impossible," it did not warrant disqualification. Liteky, 510 U.S. at 555; see id.at 556.

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3 We excerpt the relevant portion of the transcript below:

THE COURT: . . . It's a very discrete issue raised by this motion, the issue, permission or what you want to call it to amend the pleading and to conduct some hearing in open court. That's what it's about. I don't know why it should take 90 days to respond to a motion to amend the complaint whether I grant it. I granted [the government's] request for 90 days but when I got [the] letter [from Mr. White, petitioner's counsel], I was compelled to ask myself does the government need 90 days? You don't have to review the entire transcript of this trial to respond to this motion.
MR. BOURTIN [Assistant U.S. Attorney]: Not the entire transcript, but certainly some significant portions of it.
THE COURT: That would be something that you may want to do should a hearing be held, should Mr. White's motion for a hearing be granted. You may want an opportunity to examine the transcript about the cross-examination by Mr. Cardinale for purposes of ascertaining whether there's any merit to the motion and for the purpose of preparing cross-examination. Reading the testimony doesn't take three months to review. There's also a rather interesting issue, I think, Mr. LoCascio is represented by two lawyers at trial, the second one being a very experienced and able lawyer, John Mitchell which may have some bearing upon Mr. LoCascio's - Mr. Cardinale - well, I suppose he's well aware of the fact should he testify to what it is he says he's testifying, there may be some proceeding which would be instituted by me to have him disbarred at the very least but I don't think we need three months to do that.
MR. BOURTIN: We'll respond by whatever date your Honor deems appropriate.
THE COURT: You have the transcripts. You have the record of that trial. It would seem to me 45 days is more than enough, give you an opportunity to read that cross-examination. . . .

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[**10] Second, although LoCascio now contends that Judge Glasser's "threat" against Cardinale is indisputable proof of the lingering "friction between these two formidable forces," the record shows that LoCascio did not seek Judge Glasser's recusal at any reasonable time following the January 2003 hearing. As we have made clear, ^HN3"recusal motions are to be made 'at the earliest possible moment after obtaining knowledge of facts demonstrating the basis for such a claim.'" Gil Enters., Inc. v. Delvy, 79 F.3d 241, 247 (2d Cir. 1996) (quoting Apple v. Jewish Hosp. & Med. Ctr., 829 F.2d 326, 333 (2d Cir. 1987)). There are at least two reasons for this rule: "First, a prompt application affords the district judge an opportunity to assess the merits of the application before taking any further steps that may be inappropriate for the judge to take. Second, a prompt application avoids the risk that a party is holding back a recusal application as a fall-back position in the event of adverse rulings on pending matters." Id. (quoting In re IBM Corp., 45 F.3d 641, 643 (2d Cir. 1995)). Here, LoCascio made no mention of the above [**11] remark until after the District Court had denied his motion to amend and after it had denied his § 2255 petition. This protracted and unexplained delay provides yet another reason for rejecting this new ground for relief. See id.; United States v. Daley, 564 F.2d 645, 651 (2d Cir. 1977), cert. denied, 435 U.S. 933, 98 S. Ct. 1508, 55 L. Ed. 2d 530 (1978); see also Apple, 829 F.2d at 334 (holding that ^HN4in determining [*498] the untimeliness of a recusal motion, some relevant factors include "whether: (1) the movant has participated in a substantial manner in trial or pre-trial proceedings; (2) granting the motion would represent a waste of judicial resources; (3) the motion was made after the entry of judgment; and (4) the movant can demonstrate good cause for delay" (citations omitted)).

In his final argument, LoCascio asserts that Judge Glasser should have referred the recusal motion to a different judge instead of deciding it himself. However, as LoCascio acknowledges in his brief, the mere filing of an affidavit of prejudice does not require referral. See Apple, 829 F.3d at 333. "On the contrary, we have held that ^HN5a judge [**12] has an affirmative duty to inquire into the legal sufficiency of such an affidavit and not to disqualify himself unnecessarily, particularly 'where the request for disqualification was not made at the threshold of the litigation and the judge has acquired a valuable background of experience.'" Nat'l Auto Brokers Corp. v. Gen. Motors Corp., 572 F.2d 953, 958 (2d Cir. 1978) (quoting Rosen v. Sugarman, 357 F.2d 794, 797-98 (2d Cir. 1966)), cert. denied, 439 U.S. 1072, 99 S. Ct. 844, 59 L. Ed. 2d 38 (1979). To be legally sufficient, an affidavit "must give fair support to the charge of a bent of mind that may prevent or impede impartiality of judgment." Wolfson v. Palmieri, 396 F.2d 121, 124 (2d Cir. 1968) (internal quotation marks omitted). For the reasons discussed above, we find that nothing in LoCascio's affidavit even approached this standard. Accordingly, we conclude that Judge Glasser properly discharged his duty in declining to refer the recusal motion to another judge.

For the foregoing reasons, the judgment of the District Court is AFFIRMED.

Court funding to be focus of state Bar meeting Monday, Jan 23, 2012

2012-01-21T12:23:00.000-08:00

Court funding cuts and the effect those cuts have had on New York’s justice system will be among the key topics for discussion at the New York State Bar Association’s 135th Annual Meeting in Manhattan, which starts on Monday.

The week-long conference will include forums on immigration, court funding, representation of veterans, diversity in the legal community and the impact of the Bernie Madoff fraud case on international litigation. More than 5,000 lawyers are expected.

Among those scheduled to address the conference are William Robinson III, president of the American Bar Association; Jack Rives, executive director of the American Bar Association; state Chief Judge Jonathan Lipmann; state Chief Administrative Judge A. Gail Prudenti; former state Chief Judge Judith S. Kaye and former Governor David Paterson. U.S. Attorney General Eric Holder will be presented with the Gold Medal, the Bar Association’s highest award, for lifelong excellence in the legal profession and his civic contributions.

On Wednesday, the conference will feature a panel on the crisis in state court funding across the United States. The Bar Association this week released a report that identified problems with the court system in the wake of state budget cuts, including long delays and postponements in civil and criminal cases, overcrowded court calendars, problems with jury selection and jury service, limited citizen access to legal services and overworked court employees, among other issues. Former state Chief Judge Judith S. Kaye (now of counsel with Skadden, Arps, Slate, Meagher, & Flom), will moderate a panel of state and national experts on the topic. American Bar Association President William T. Robinson’s keynote address also will focus on court funding.

For a complete listing of speakers, program and events, go to www.nysba.org/am2012. Founded in 1876, the 77,000-member New York State Bar Association is the largest state bar association in the country.

Letter to Senator John Sampson from Elena Sassower, Center For Judicial Accountability

Center For Judicial Accountability on Judicial Compensation issue

Who Judges the Judges?

by David King, Gotham Gazette, Nov 14, 2011

LINK

On June 8, 2009 -- the same day as the notorious State Senate coup -- a group of state senators began hearings on the Commission on Judicial Conduct and New York's system for disciplining attorneys. During the hearings, witnesses testified as to how the state's judicial watchdog group had ignored their complaints about judges and rebuffed their attempts to ascertain what happened to their complaints. Overall, many said, they were left feeling helpless before the justice system.

On Sept. 24, 2009 another hearing was held in Manhattan. The parade of witnesses with complaints about judges who allegedly flout the law, hold grudges against lawyers and levy absurdly large fines for perceived slights continued. In fact so many people wanted to testify on the matter that a third meeting was scheduled for Dec. 16, 2009.

That hearing never took place. A notice was issued that the hearing had been cancelled and would be rescheduled. It never was.

No findings were issued, no committee report was put together and no task force was called to investigate as some senators had suggested while reacting to testimony.

What happened? According to Senate Minority Leader John Sampson who headed the proceedings, he got too busy. “We started these hearings right when the coup happened. I believe that it was just the demands I had as leader. I couldn’t do everything,” he said. Sampson was anointed leader of the Democratic conference after the coup and continued to lead it after the Democrats returned to power. Many other Senate hearings continued during and after the coup.

In the two years since, no one has held any additional hearings on judicial accountability, but critics say the issue has not gone away. Observers and many people who have had bad experiences say the state's judicial watchdog ignores major complaints to focus on infractions of low-level judges, dismisses many worthy complaints and does all this in secrecy.

When Judges Misbehave

The Commission on Judicial Conduct is tasked with accepting complaints against judges and investigating complaints deemed meritorious. But a number of critics say the commission investigates lower level town judges for small infractions while ignoring repeated complaints against higher ranking judges such as those on the state Supreme Court. The Commission on Judicial Conduct has 11 members, each of whom serves a renewable four-year term. The governor appoints four members, the chief judge three and the speaker of the Assembly, the minority leader of the Assembly, the temporary president of the Senate (the majority leader) and the minority leader of the Senate each appoint one.

Of the governor's appointees, one must be a judge, and one must be a member of the state bar. The chief judge must appoint a justice of the Appellate Division, a judge who is not from the Court of Appeals or Appellate Division, and one who is a justice of a town or village court. Legislative leaders may not appoint anyone who has served as a judge.

Saratoga Family Court Judge Gilbert Abramson was the only judge removed by the commission in 2010. He allegedly made comments about a woman’s shirt that were “full of sexual innuendo.”

Two other judges resigned while under investigation. One had approved of anti-semetic comments in court, the other hadn’t bothered to sentence 100 people who had been convicted. Twelve judges were censured last year for a variety of reasons.

A number of observers, including commission members feel that the commission is far too reserved in its disciplining of judges. Albany Family Court Judge Gerald Maney tried to use his position to get out of a driving while intoxicated charge and yet he kept his seat. But critics say even more serious allegations are ignored -- ones about cases being fixed, rights being ignored and clear conflicts of interest.

Watchng the Watchdog?

So what came out of the hours of testimony, the money, time and miles witnesses spent getting to Albany, the risk lawyers took by complaining about judges in a public forum?

In 2010 Sampson began pushing a piece of legislation that would open judicial disciplinary hearings to the public -- not the actual complaints against judges, but the proceedings that take place after the commission has found sufficient reason to proceed against a judge. Proceedings such as these are open to the public in 35 other states. In New York, the proceedings are public only if the judge waives the right to a private hearing and agrees to have the accusations aired in public. Information about cases that result in disciplinary action are available to the public after a decision has been made.

Robert Tembjeckian, administrator and counsel to the Commission on Judicial Conduct, supports making the proceedings public. But he points out that no one is exactly in a rush to act on such legislation. “There is a preoccupation with economic and budgetary issues. At the moment it doesn’t seem to be a major concern," he said, adding, "The best case to move it forward is hopefully one house will see fit to have public hearings, generate momentum and public discussion.”

Sampson says he may initiate hearings on the Commission on Judicial Conduct early next year. “Reforms are necessary. Lady Justice is supposed to be blind but she has a hole in her blindfold and her scales are not balanced. There is a call out there [for hearings],” Sampson said. Sampson said he plans to start early in the year, and thinks he will enjoy the support of Gov. Andrew Cuomo. “I know our governor is all for reform. He believes people lost faith in our government and he wants to restore it, so I know this is something governor would truly support.” Cuomo’s office did not return calls for comment.

While Sampson may be prepared to hold hearings, other supporters of the measure aren’t exactly chomping at the bit. Dennis Hawkins, executive director of The Fund for Modern Courts, says the economy has led his group to focus on court budgets and working for judicial pay raises. He expects the budget to be a major focus during the 2012 session as well. “Sometimes larger issues block out other issues,” he said.

Peter Barlet, president of the New York State Magistrate’s Association, said his organization has no position on the issue but said making hearings public could “be a concern among judges who have to run for office.” He said opponents could use baseless cases as ammunition against sitting judges.

Case Dismissed

Despite the talk about opening hearings, that was not the key concern of a majority of the people who testified in 2009. “None of those people said they lacked confidence in the commission because hearings weren’t open,” said Elena Sassower, director of the Center for Judicial Accountability, a group that describes itself as "a national nonpartisan, nonprofit, citizens’ organization documenting how judges break the law and get away with it." Instead, Sassower said, "They lack confidence because their detailed, documented complaints were dismissed without reason and they were told the reasons were confidential.

A majority of the testimony focused on complaints the commission decided not to pursue. Attorney Regina Felton described how one judge routinely altered the court record, failed to file motions and repeatedly fined her large amounts. Since these motions were not filed. Felton had difficulty appealing them. Eventually when the judge demanded she pay $6,700 in fines Felton told the judge she had appealed, but he sent her to Rikers Island where she spent 11 days. Other complainants detailed how judges who oversaw their cases had conflicts of interest thanks to business relationships.

Currently there is no way to judge how the commission performs its duties when it comes to investigating meritorious cases, because all complaints are secret.

In 1989 then State Comptroller Edward Regan attempted to audit the Commission on Judicial Conduct. The report that came of the attempt was titled “Not Accountable to the Public: Resolving Charges Against Judges is Cloaked in Secrecy.”

"The commission has denied our request for access to confidential files and has refused to propose legislation to open its records to my office," Regan said in a statement accompanying the report. "As a result, my auditors cannot determine if the commission is complying with applicable state laws and regulations." Regan added, "The potential exists that the commission could be abusing its authority by wrongfully dismissing complaints against judges without cause and justification."

The only group pushing to actually make these complaints available to the public is the Center for Judicial Accountability. Sassower said, "Making the hearings public is like snow in the wintertime. Opening hearings will only give us an idea of what is going on with a handful of complaints, not addressing the 95 percent that do not result in an investigation."

Sassower says she has a good idea about the number of complaints the commission gets and does not act on, because she encourages complainants to forward their grievances to her organization. Sassower’s group has brought suit against the commission a number of times, each case has failed and she has since been barred by the judiciary from bringing any further cases.

Sassower says the commission routinely ignores meritorious cases and even destroys complaints it has held for five years, thereby making it impossible to track a pattern of complaints against judges who serve long terms. She wants the veil of secrecy to be lifted so that the public can see whether the commission is doing its job.

The Power of the Purse

The center has recently started pushing its case in a new way: attaching the issue to the very sensitive topic of judicial pay raises.

The Special Commission on Judicial Compensation was created by a 2010 law that mandates the group recommend salaries for judges. This year, the group issued a report recommending a 27 percent pay increase. The recommendation is binding and will go into effect next year unless the legislature blocks it. Late last month Sassower’s group issued its own report, which said the increase should not be given and charged that that the testimony given to the Senate in 2009 adds up to “evidence of systemic corruption” that “disqualifies judges from pay raises by a constitutional bar.”

Other groups that work on court issues are loathe to tie judicial pay raises to increasing transparency at the Commission for Judicial Conduct. After all, those same groups have been pushing for judicial pay raises for years.

“I don’t think that’s the way government works,” said Dennis Hawkins of the Fund for Modern Courts. “That seems like a way of coercion by the legislature against the judiciary. We need to keep the judiciary a separate, independent branch of government. Judges don’t have the ability to change the Commission on Public Conduct, so we shouldn’t be penalizing people who aren’t in charge of it.”

Others disagree with the very idea of opening the records. Tembjeckian, the commission’s administrator and counsel, says that the promise of confidentiality regarding complaints made against judges is “important and explicit. The statutory mandate precludes that even a grand jury cannot subpoena commission records. You are innocent until proven guilty.”

But Sassower argues that it is public record when a judge is sued. She notes that she has tried to get members of the press to write about the many complaints she has collected over the years, but to no avail. “The media is not running to cover complaints against judges. The fear is baseless.”

Sassower has distributed her report to the office of Chief Justice Jonathan Lippman, the governor and the heads of the legislature. She is currently awaiting response.

Supreme Court Declines Cases on Student Internet Speech

2012-01-19T09:34:00.000-08:00

By Mark Walsh on January 17, 2012

LINK

The U.S. Supreme Court on Tuesday declined to take up major appeals involving student free speech rights on the Internet.

One appeal encompassed two cases decided in June 2011 by the full U.S. Court of Appeals for the 3rd Circuit, in Philadelphia.

The appeal in Blue Mountain School District v. Snyder (No. 11-502) involves a 3rd Circuit decision that said students who ridiculed their principals online could not be punished by school authorities because the speech was created off campus and did not substantially disrupt schools.

The 3rd Circuit held in the Blue Mountain case that a Pennsylvania middle school student's 2007 MySpace parody depicting her principal as a sex addict and a pedophile was so outrageous that no one could have taken it seriously.

In a companion case, Layshock v. Hermitage School District, the 3rd Circuit court overturned the discipline of a Pennsylvania high school student who in 2005 had created a fake MySpace profile of his principal on a computer at his grandmother's house. The phony profile played on the principal's purported interest in "big" things, such as smoking a "big blunt," being a "big steroid freak," having stolen a "big keg," and having been drunk a "big number of times."

The 3rd Circuit court found that the profile did not create a substantial disruption in school, and the court rejected the school district's arguments that other facts created a nexus between the parody and the school.

The joint appeal on behalf of the Blue Mountain and Hermitage school districts told the justices that the cases presented "important and urgent First Amendment questions regarding the scope of school officials' authority over student online speech."

"At the moment, school officials are stuck between a rock and a hard place," the appeal said. "They are responsible for protecting students and teachers from online harassment, but in doing so, they might trigger a lawsuit from a student claiming that his or her First Amendment rights have been violated. School officials cannot afford to wait any longer for a definitive answer."

Meanwhile, an appeal in Kowalski v. Berkeley County Schools (No. 11-461) involved a West Virginia student who was disciplined for creating a MySpace page targeting not an administrator but another student at her high school.

Kara Kowalski was a student at Musselman High School, in Berkeley County, W.Va., in 2005 when she created a MySpace page that suggested another female student had herpes. School officials concluded that Kowalski had created a "hate" website in violation of school policies against harassment, bullying, and intimidation. She was suspended from school for five days and given a "social suspension" of 90 days, meaning she was barred from certain school activities, including the cheerleading squad.

Kowalski sued under the First Amendment, but both a federal district court and a panel of the U.S. Court of Appeals for the 4th Circuit, in Richmond, Va., upheld school administrators. The 4th Circuit said in a July 2011 decision that "school administrators are becoming increasingly alarmed by the phenomenon" of harassment and bullying, and that "where such speech has a sufficient nexus with the school, the Constitution is not written to hinder school administrators' good faith efforts to address the problem."

In her appeal to the Supreme Court, Kowalski said, "This court has never addressed the appropriate First Amendment test for student speech that occurs entirely off school premises."

The justices declined on Jan. 17 to hear the cases without comment or recorded dissent.

'Abandoned by Counsel,' Death Row Inmate Gets Another Hearing

2012-01-19T06:53:00.000-08:00

""The client bears the risk of all attorney errors…regardless of the egregiousness of the mistake," Justice Scalia said.

US Supreme Court Orders New Hearing For Morgan County Convict

Cory Maples
Gets Another Hearing

Tony Mauro

The National Law Journal, 01-19-2012 on the error of Cory Maples' Attorneys at Sullivan & Cromwell to file a timely appeal of his death sentence:

""The client bears the risk of all attorney errors…regardless of the egregiousness of the mistake," Justice Scalia said.

LINK

WASHINGTON - The U.S. Supreme Court ruled on Jan. 18 that an Alabama death row inmate should not be penalized for missing a crucial appeal deadline when the error was caused by his pro bono lawyers from Sullivan & Cromwell.

The 7-2 ruling in Maples v. Thomas, 10-63, brings an end to a "lawyer's nightmare" case that showed how a series of law firm mailroom and notice errors as well as the departure of two associates could nearly result in a client's execution. In excruciating detail, Justice Ruth Bader Ginsburg recited the "uncommon facts" and mishaps that amounted to abandonment of convicted murderer Cory Maples by his Sullivan & Cromwell lawyers at the precise moment when Mr. Maples faced a filing deadline for his state post-conviction appeal.

"Abandoned by counsel, Maples was left unrepresented at a critical time for his state post-conviction petition, and he lacked a clue of any need to protect himself pro se," wrote Justice Ginsburg. "In these circumstances, no just system would lay the default at Maples' death-cell door."

In a concurrence, Justice Samuel Alito Jr. described Sullivan & Cromwell as "one of the country's most prestigious and expensive" law firms, and said what befell Mr. Maples was "a veritable perfect storm of misfortune."

Law firms usually rejoice at being cited by the Supreme Court, but not in this vein. Asked for comment on the decision, Sullivan & Cromwell released a brief statement: "We're pleased that Mr. Maples won his appeal in the Supreme Court."

Former Solicitor General Gregory Garre, who represents Mr. Maples, was "thrilled" by the decision in the case, but the Latham & Watkins partner declined to comment on its impact.

Because it represented such a serious breach of a lawyer's duty to a client, the Maples case struck a chord with many lawyers and law firms as it made its way to the high court.

Read briefs in the case and a transcript of the oral argument.

"No lawyer would ever want a client to suffer the ultimate punishment because of being abandoned by counsel," said Jonathan Franklin of Fulbright & Jaworski, who filed a brief in the case on behalf of the Constitution Project and the Cato Institute on Mr. Maples' behalf. "This was the ultimate disservice to a client."

In terms of legal doctrine, the ruling also may open the door to more claims by death-row inmates citing ineffective assistance by post-conviction counsel. The Supreme Court's 1991 ruling in Coleman v. Thompson, 501 U.S. 722, seemed to foreclose such claims previously.

The Court's decision on Jan. 18 overturned a ruling by the U.S. Court of Appeals for the Eleventh Circuit that found the circumstances of the missed deadline could not overcome the procedural default that resulted. The case returns to lower courts for a hearing on whether the error prejudiced his case, after which the merits of his ineffective assistance claim could be considered.

Accused of a double murder in 1997, Mr. Maples was represented at trial by two court-appointed lawyers, only one of whom had experience in capital cases. Mr. Maples was convicted and sentenced to death. Justice Ginsburg noted disapprovingly that Alabama, "nearly alone among the states," does not guarantee post-conviction legal representation for indigent defendants. Instead, it depends on volunteer efforts, often by large out-of-state law firms.

In Mr. Maples' case, Sullivan & Cromwell New York associates Jaasi Munanka and Clara Ingen-Housz worked on his appeal, which cited ineffective assistance of counsel at trial. Alabama rules require a local attorney as well, so Huntsville lawyer John Butler was hired for that role, though from the outset, he told the two Sullivan lawyers he would not deal with the substance of the case.

In 2002, both Sullivan lawyers left the firm for positions that precluded continuing to represent Mr. Maples—Mr. Munanka clerked for a federal judge and Ms. Ingen-Housz went to work at the European Commission. But neither lawyer told Mr. Maples they were leaving, nor sought permission to withdraw from Alabama courts. The firm did not notify the Alabama court of any substitutions. So when the trial court first denied Mr. Maples' appeal, notice to the lawyers was sent to Sullivan, where the mailroom returned the envelopes unopened. Mr. Butler received notice, but did not act on it. The court clerk made no attempt to track down the lawyers.

"Meanwhile, the clock ticked on Maples' appeal," wrote Justice Ginsburg. The deadline expired, and a month later an Alabama assistant attorney general notified Mr. Maples himself. Mr. Maples then contacted his mother, who got in touch with Sullivan & Cromwell. A new set of lawyers there petitioned the Alabama court to re-state the deadline, but their plea was denied.

Justice Antonin Scalia, joined by Justice Clarence Thomas, dissented. Noting that defendants have no constitutional right to be represented by counsel in post-conviction proceedings.

"The client bears the risk of all attorney errors…regardless of the egregiousness of the mistake," Justice Scalia said.

@|Tony Mauro covers the U.S. Supreme Court for ALM, the parent company of the Law Journal. He can be contacted at tmauro@alm.com.

New hearing for US death row inmate in 'returned mail' case

(AFP) –LINK

WASHINGTON — The US Supreme Court on Wednesday ruled that a death row inmate could not be denied a chance to file an appeal, after correspondence informing his attorneys of the filing deadline was sent back marked "return to sender."

In a 7-2 vote, the highest US court ordered a new hearing for convicted murderer Cory Maples in the case, reversing a lower court ruling.

Maples was sentenced to death by an Alabama court in 1997 for murdering two of his friends after a night of drugs and binge drinking.

He unsuccessfully filed a petition for relief after the conviction, claiming that his trial lawyer had failed to offer evidence about his mental health, alcohol and drug history.

A new legal team was sent notice that Maples had 42 days to file an appeal, but by the time letter was sent out, they were no longer employed by their New York firm, and the letter was returned unopened.

As well as failing to file his appeal by required date, he was also denied an extension -- a decision appealed to the US top court.

Justice Ruth Bader Ginsburg wrote in the court opinion that the lower court erred in its ruling, and that the condemned man could not be held accountable for the mistake.

Ginsburg wrote that Maples had believed that his attorneys were "vigilantly representing him," when in fact they "had abandoned the case without leave of court, without informing Maples they could no longer represent him, and without securing any recorded substitution of counsel."

"No just system would lay the default at Maples' death cell door," Ginsburg added in the court opinion.

The former civil liberties attorney also decried the low eligibility requirements that Alabama sets for lawyers appointed to represent indigent defendants in death penalty cases, as well as the paltry pay these lawyers often receive.

Maples, who claimed that his court-appointed lawyers did an inadequate job defending him, was represented before the justices by a team of lawyers led by Gregory Garre, a former US solicitor general.

During arguments before the Supreme Court back in October, Garre stressed that his client was not asking to be freed from prison, simply that his case be heard and decried the "extraordinary and shocking" circumstances at work -- especially in a "capital case when an individual life is at stake."

Justices Antonin Scalia and Clarence Thomas dissented.

"If the interest of fairness justifies our excusing Maples? procedural default here, it does so whenever a defendant?s procedural default is caused by his attorney," Scalia wrote in the dissent.

"That is simply not the law -- and cannot be, if the states are to have an orderly system of criminal litigation conducted by counsel," he wrote.

MacPherson v JPMorgan Chase: Fair Credit Reporting Act Pre-empts State Law Claims

2011-12-31T10:30:00.000-08:00

United States Court of Appeals,Second Circuit

LINK

MacPHERSON v. JPMORGAN CHASE BANK

Sean Stewart MacPHERSON, Plaintiff–Appellant, v. JPMORGAN CHASE BANK, N.A.,Defendant–Appellee.

Docket No. 10–3722–cv.
Argued: Sept. 22, 2011. -- December 23, 2011

Before POOLER, B.D. PARKER, and CARNEY, Circuit Judges.
Sean Stewart Macpherson, pro se, Redding, CT.Noah A. Levine (Daniel S. Volchok, on the brief), Wilmer Cutler Pickering Hale and Dorr LLP, New York, NY, and Washington, D.C.; (Thomas Edward Stagg and Debra Lynne Wabnik, Stagg, Terenzi, Confusione & Wabnik, LLP, Garden City, NY, on the brief), for Appellee.

Proceeding pro se, Sean Stewart Macpherson appeals from a judgment of the United States District Court for the District of Connecticut (Thompson, J.), dismissing his state common law tort claims against JPMorgan Chase Bank, N.A. Because we agree that the Fair Credit Reporting Act (“FCRA”), 15 U.S.C. § 1681t(b)(1)(F), preempts Macpherson's state law claims against Chase, we affirm the district court's judgment.

Macpherson alleges that Chase willfully and maliciously provided false information about his finances to Equifax, a consumer credit reporting agency. Based on these reports, Equifax reduced his credit score, to his detriment. Macpherson sued Chase in state court in Connecticut for this alleged conduct, asserting state common law claims against Chase for defamation and intentional infliction of emotional distress.

Chase removed the suit to federal court and moved for dismissal under Federal Rule of Civil Procedure 12(b)(6), arguing that Macpherson's claims are preempted by FCRA. In a careful and thorough decision, the district court agreed and granted Chase's motion. No. 3:09CV 1774, 2010 WL 3081278 (D.Conn. Aug. 5, 2010). Macpherson timely appealed.

The sole issue on appeal is whether FCRA preempts Macpherson's state law claims. We review de novo a district court's application of preemption principles. Drake v. Lab. Corp. of Am. Holdings, 458 F.3d 48, 56 (2d Cir.2006). Chase contends, and the district court held, that Macpherson's claims are preempted by § 1681t(b)(1)(F) of FCRA. This section, a general preemption provision enacted in 1996—over twenty years after FCRA first took effect—provides, in relevant part:

No requirement or prohibition may be imposed under the laws of any State—
(1) with respect to any subject matter regulated under—
․
(F) section 1681s–2 of this title, relating to the responsibilities of persons who furnish information to consumer reporting agencies․
15 U.S.C. § 1681t(b)(1)(F). Macpherson acknowledges that his allegations of false reporting concern conduct regulated by § 1681s–2. Read literally, therefore, § 1681t(b)(1)(F) bars Macpherson's state law tort claims.

Macpherson contends, however, that his claims survive the 1996 preemption provision by virtue of another section of the statute, § 1681h(e). Enacted in 1970 as a part of the original legislation, § 1681h(e) provides, as relevant here:

[N]o consumer may bring any action or proceeding in the nature of defamation, invasion of privacy, or negligence with respect to the reporting of information against ․ any person who furnishes information to a consumer reporting agency, ․ except as to false information furnished with malice or willful intent to injure such consumer.

15 U.S.C. § 1681h(e) (emphasis supplied). Notwithstanding the broad language of the 1996 amendment, Macpherson maintains that § 1681h(e) amounts to an explicit authorization of certain state common law tort claims that are based on “false information furnished with malice or willful intent to injure.” He urges us to reconcile the conflict that his reading of § 1681h(e) engenders by holding that the 1996 amendment preempts only state statutes, and not state common law actions, that are inconsistent with FCRA.

In Premium Mortgage Corp. v. Equifax, Inc., 583 F.3d 103 (2d Cir.2009), we expressly rejected the argument that § 1681t(b) preempts only state statutory law. Id. at 106. We adopted instead a more literal reading of the phrase “[n]o requirement or prohibition”—a reading that was endorsed by a plurality of the Supreme Court in Cipollone v. Liggett Group, Inc., 505 U.S. 504 (1992), in its discussion of a similar preemption argument: “The phrase ‘[n]o requirement or prohibition’ sweeps broadly and suggests no distinction between positive enactments and common law; to the contrary, those words easily encompass obligations that take the form of common-law rules.” Id. at 521. The same section and introductory language—“[n]o requirement or prohibition may be imposed under the laws of any State”—applies here, and our holding in Premium Mortgage forecloses Macpherson's limited reading of the 1996 amendment.

Moreover, and more importantly, Macpherson's basic premise is false: the 1996 provision, § 1681t(b)(1)(F), is not in conflict with § 1681h(e), and § 1681h(e) does not insulate state tort actions from preemption. As the Seventh Circuit recently explained in Purcell v. Bank of America, 659 F.3d 622 (7th Cir.2011), “[s]ection 1681h(e) preempts some state claims that could arise out of reports to credit agencies; § 1681t(b)(1)(F) [simply] preempts more of these claims.” Id. at 625 (emphasis supplied). Put differently, the operative language in § 1681h(e) provides only that the provision does not preempt a certain narrow class of state law claims; it does not prevent the later-enacted § 1681t(b)(1)(F) from accomplishing a more broadly-sweeping preemption. As the Purcell court persuasively reasoned:
Section 1681h(e) does not create a right to recover for wilfully false reports; it just says that a particular paragraph does not preempt claims of that stripe. Section 1681h(e) was enacted in 1970.

Twenty-six years later, in 1996, Congress added § 1681t(b)(1)(F) to the United States Code. The same legislation also added § 1681 s–2. The extra federal remedy in § 1681 s–2 was accompanied by extra preemption in § 1681t(b)(1)(F), in order to implement the new plan under which reporting to credit agencies would be supervised by state and federal administrative agencies rather than judges. Reading the earlier statute, § 1681h(e), to defeat the later-enacted system in § 1681s–2 and § 1681t(b)(1)(F), would contradict fundamental norms of statutory interpretation.
Id. We agree.

Having determined that § 1681h(e) is compatible with § 1681t(b)(1)(F), and that Macpherson's state law claims are preempted by the plain language of § 1681t(b)(1)(F), we need not address Macpherson's remaining statutory interpretation arguments.

Accordingly, the judgment of the district court is AFFIRMED.

Attorney Frederic Powell Disbarred For Grand Larceny, Possession of a Forged Instrument, and Attempted Bribery

2011-12-30T16:11:00.000-08:00

Is Stealing Money by an Attorney Legal Malpractice?
LINK

While theft by an attorney may be many things, it is questionable whether it might be called legal malpractice. In B & R Consol., L.L.C. v Zurich Am. Ins. Co. 2011 NY Slip Op 51142(U) ; Decided on June 22, 2011 ; Supreme Court, Nassau County ; DeStefano, J. we see an upside-down mirror image of the usual legal malpractice case. Here plaintiff's attorneys are well known legal malpractice defense counsel, plaintiff in the underlying legal malpractice case is suing the malpractice insurer, and the argument is over whether the insurance policy covers the alleged acts. Here, for the moment it does.

"In an action filed on November 6, 2008, encaptioned B & R Consolidated, L.L.C. v Frederic A. Powell, Esq. and Robin Powell, Index No. 020049/08 (the "underlying action"), B & R asserted, inter alia, causes of action in fraud, unjust enrichment, conversion, breach of contract, and breach of fiduciary duty based upon an admission by attorney Frederick A. Powell ("Powell") that he "stole four hundred and fifty thousand ($450,000.00) dollars of B & R's money from his escrow account for other personal projects'" and did this "without any authorization from B & R" (Ex. "1" to Plaintiff's Opposition). Specifically, it was alleged in the complaint that:
Unbeknownst to B & R, [Powell] received the money from the repayment of a mortgage owned by B & R in June of 2007. [Powell] neglected to inform B & R that the money had been received until September 2008, more than an entire year later! Instead, [Powell] made periodic payments to B & R under the guise of interest payments being made by a third party on the mortgage held by B & R
Accordingly, the Court finds unrebutted plaintiff's proof that Powell took possession of funds belonging to the plaintiff, hid that fact from it, and then lost or misappropriated those funds for his own use. This constitutes an established breach of fiduciary duty owed to B & R by Powell as its attorney. Further, damages resulting from that breach have been shown as a result of the [*4]misappropriation of the clients' funds, which is distinct from any claim for negligence or legal malpractice. Summary judgment therefore is granted to the plaintiff on its third and fifth causes of action, breach of "the fiduciary duty of care", and "of loyalty", as they most closely comport with the foregoing authority regarding breach of fiduciary duty generally. The Court notes that such a breach would also allow for a recovery for any attorney's fees that were improperly charged as being incident the to [sic] breach rendering the continued pursuit of the negligence and malpractice causes of action unnecessary. Summary judgment is therefore denied as to these claims. "
"The Insurer argues that liability in the underlying action was not based upon Powell's rendition of legal services but, rather, on his misappropriation of B & R's funds and, thus, the Insurer has no obligation to indemnify. In the underlying action, Justice Palmieri stated in his decision that "the amended complaint is framed in terms of negligence, malpractice, and breach of fiduciary duty to Powell. This in turn is premised on bad advice from Powell as attorney and a failure to keep B & R informed of the true status of its loan to Lyons" (Ex. "7" to Plaintiff's Opposition at p. 5).
Under the circumstances, and considering that the causes of action asserting breach of fiduciary duty are based upon the same facts constituting the causes of action alleging negligence and legal malpractice, it cannot be said as a matter of law that Powell's conduct falls outside the scope of risk covered by the policy (Ex. "7" to Plaintiff's Opposition at p 8; see Ulico Casualty Co., v Wilson, Elser, Moskowitz, Edelman & Dicker, 56 AD3d 1 [1st Dept 2008]; Burkhart, Wexler & Hirschberg, LLP v Liberty Insurance Underwriters, Inc., 60 AD3d 884 [2d Dept 2009]).[FN3] "

Long Island real-estate lawyer disbarred after bribery attempt

LINK

NEW YORK, Dec 30 (Reuters) - A Long Island real-estate attorney was formally banned from practicing law in New York after he admitted to trying to pay a government official $250 to expedite his request for public information on a property.

The Appellate Division, Second Department, on Thursday granted a motion by the Grievance Committee for the Tenth Judicial District to disbar Frederic Powell, who pleaded guilty in March to grand larceny, criminal possession of a forged instrument and attempted bribery.

According to the court record, Powell admitted to stealing property worth more than $50,000 and to putting a person's name on a mortgage without her knowledge or consent.

He was also caught in 2010 trying to bribe a Hempstead Township clerk to speed up a request he made under the Freedom of Information Law for information on a piece of property.

According to a statement from Nassau County District Attorney Kathleen Rice, Powell was told by the clerk that it would take up to five days to process his request. Powell told the clerk that he needed the information that day and put a $100 bill on the counter, asking if it would be possible to expedite the process.

After the clerk said that there was nothing she could do to speed up the request, Powell pushed a second $100 bill across the counter, according to prosecutors. When the clerk refused, saying she would call him when she received the requested information, Powell crumpled up and threw a $50 bill at the clerk.

The clerk returned all of the money to Powell before he left, the DA said. A spokeswoman for Rice said that Powell's case is still active and that he has not yet been sentenced.

Powell could not immediately be reached for comment on Friday. He did not oppose the grievance committee's motion for disbarment and did not respond to the disciplinary action, according to the court ruling.

The case is In the Matter of Frederic Powell, in the Supreme Court for the State of New York, Appellate Division: Second Judicial Department, No. 2009-04002.

For the disciplinary committee: Daniel Mitola of Hauppauge, N.Y.

(Reporting by Jessica Dye)

Attorney Luis Rosado Suspended From The Practice of Law For One Year

2011-12-19T20:37:00.000-08:00

MATTER OF LOUIS ROSADO, AN ATTORNEY, RESPONDENT. GRIEVANCE COMMITTEE OF THE EIGHTH JUDICIAL DISTRICT, PETITIONER.

OPINION AND ORDER Order of suspension entered.

Per Curiam Opinion: Respondent was admitted to the practice of law by the Appellate Division, First Department on August 6, 1990, and maintains an office in Buffalo. The Grievance Committee filed a petition charging respondent with acts of misconduct including neglecting client matters and failing to cooperate with the investigation of the Grievance Committee. Respondent filed an answer denying material allegations of the petition, and a referee was appointed to conduct a hearing. Prior to the hearing, the parties executed a stipulation resolving all outstanding factual issues. Based upon that stipulation, the Referee filed a report, which the Grievance Committee moves to confirm. Respondent filed no papers in opposition to the motion, and he appeared before this Court and submitted matters in mitigation.

With respect to the first charge of the petition, the Referee found that, in December 2007, respondent was retained to secure a qualified domestic relations order (QDRO) concerning certain pension benefits belonging to his client's former spouse. Although the benefits became available in February 2008 and respondent obtained an order directing his client's former spouse to show cause why his client was not entitled to a portion of the benefits, the Referee found that respondent thereafter failed to respond to inquiries from his client and failed to take further action on the matter until August 2010 when, upon penalty of contempt, the court presiding over the matter directed respondent to submit a proposed QDRO to the court. The Referee further found that, after respondent submitted the proposed QDRO, he failed to follow up with the court to secure a portion of the pension benefits for his client.

With respect to charge two, the Referee found that, in May 2007, respondent was retained to obtain a judgment of divorce against a resident of El Salvador. The Referee found that, although respondent filed a summons and notice and sent them to El Salvador for service, he twice thereafter received a defective affidavit of service from the process server in El Salvador. The Referee further found that respondent, through February 2011, failed to obtain a proper affidavit of service, failed to communicate with his client regarding the matter and failed to take further action to complete the matter.

With respect to charge three, the Referee found that respondent was retained in April 2008 to file a petition for bankruptcy on behalf of a married couple, and he was paid funds in the amount of $1,525 for his legal fees and the bankruptcy filing fee. The Referee found that, for at least nine months, respondent kept the sum of $299, which his clients intended to be used for payment of the bankruptcy fee, in an unlocked filing cabinet. The Referee further found that, although respondent possessed all information necessary to file the bankruptcy petition in August 2008, he did not file the petition until August 2009, after his clients filed a complaint with the Grievance Committee.

With respect to charge four, the Referee found that respondent was retained in September 2008 to represent an individual as the purchaser of certain residential real property. Respondent received four separate checks from his client, which were for the purpose of satisfying an existing mortgage, satisfying arrears for municipal water and garbage user fees and paying the closing costs of the transaction, including respondent's legal fee. The Referee found that respondent delegated the matter to a non-employee who mistakenly paid to the mortgage holder the funds that were intended to satisfy the arrears for municipal water and garbage user fees. The [*2]Referee further found that respondent thereafter failed to respond to inquiries from his client regarding the matter and failed to take action to complete the matter. In addition, the Referee found that respondent failed to file with the County Clerk the deed relating to the transaction and that, in 2010, respondent's client incurred additional expenses to retain replacement counsel in order to complete the matter.

With respect to charge five, the Referee found that respondent was retained in March 2007 to prosecute a criminal appeal and, although he took certain preliminary steps to prosecute the matter, he failed to perfect the appeal. The Referee further found that respondent did not provide a refund to his client until April 2009, after she filed a complaint with the Grievance Committee.

The Referee additionally found that, with respect to charges one and two, respondent failed to provide his clients with a statement of client's rights, a written retainer agreement and billing statements at regular intervals as required by the Appellate Division rules governing domestic relations matters. The Referee further found that, in three of the above-referenced matters, respondent failed to make and keep records concerning the receipt, maintenance or disbursement of client funds. In addition, the Referee found that, from January through June 2010, respondent failed to respond in a timely manner to repeated requests from the Grievance Committee for information regarding the above matters.

We confirm the findings of fact made by the Referee and conclude that respondent has violated the following former Disciplinary Rules of the Code of Professional Responsibility and the following Rules of Professional Conduct:

DR 1-102 (a) (5) (22 NYCRR 1200.3 [a] [5]) and rule 8.4 (d) of the Rules of Professional Conduct (22 NYCRR 1200.0) - engaging in conduct that is prejudicial to the administration of justice;

DR 1-102 (a) (7) (22 NYCRR 1200.3 [a] [7]) and rule 8.4 (h) of the Rules of Professional Conduct (22 NYCRR 1200.0) - engaging in conduct that adversely reflects on his fitness as a lawyer;

DR 2-106 (c) (2) (ii) (22 NYCRR 1200.11 [c] [2] [ii]) and rule 1.5 (d) (5) (ii) of the Rules of Professional Conduct (22 NYCRR 1200.0) - entering into an arrangement for, charging or collecting a fee in a domestic relations matter without a written retainer agreement signed by the lawyer and client setting forth in plain language the nature of the relationship and the details of the fee arrangement;

DR 2-106 (f) (22 NYCRR 1200.11 [f]) and rule 1.5 (e) of the Rules of Professional Conduct (22 NYCRR 1200.0) - failing to provide a prospective client in a domestic relations matter with a statement of client's rights and responsibilities at the initial conference and prior to the signing of a written retainer agreement;

DR 2-110 (a) (3) (22 NYCRR 1200.15 [a] [3]) and rule 1.16 (e) of the Rules of Professional Conduct (22 NYCRR 1200.0) - failing to refund promptly any part of a fee paid in advance that has not been earned;

DR 6-101 (a) (3) (22 NYCRR 1200.30 [a] [3]) and rule 1.3 (b) of the Rules of Professional Conduct (22 NYCRR 1200.0) - neglecting a legal matter entrusted to him;

DR 9-102 (b) (1) (22 NYCRR 1200.46 [b] [1]) and rule 1.15 (b) (1) of the Rules of Professional Conduct (22 NYCRR 1200.0) - failing to maintain client funds in a special account separate from his business or personal accounts;

DR 9-102 (c) (3) (22 NYCRR 1200.46 [c] [3]) and rule 1.15 (c) (3) of the Rules of Professional Conduct (22 NYCRR 1200.0) - failing to maintain complete records of all funds of [*3]a client coming into his possession and to render appropriate accounts to his client regarding them;

DR 9-102 (d) (9) (22 NYCRR 1200.46 [d] [9]) and rule 1.15 (d) (2) of the Rules of Professional Conduct (22 NYCRR 1200.0) - failing to make accurate, contemporaneous entries of all financial transactions in his records of receipts and disbursements, his special accounts, his ledger books and in any other books of account kept by him in the regular course of his practice;

rule 1.3 (a) of the Rules of Professional Conduct (22 NYCRR 1200.0) - failing to act with reasonable diligence and promptness in representing a client; and

rule 1.4 (a) (2) - (4) of the Rules of Professional Conduct (22 NYCRR 1200.0) - failing to consult with a client in a reasonable manner about the means by which the client's objectives are to be accomplished; failing to keep a client reasonably informed about the status of a matter; and failing in a prompt manner to comply with a client's reasonable requests for information.

Finally, we conclude that respondent has violated 22 NYCRR part 1400 by failing to provide clients in domestic relations matters with a statement of client's rights, a written retainer agreement and itemized billing statements at regular intervals.

In determining an appropriate sanction, we have considered the ongoing nature of respondent's misconduct inasmuch as respondent has previously received two letters of caution and has been censured by this Court for similar misconduct (Matter of Rosado, 64 AD3d 123). In addition, we have considered that respondent's misconduct caused harm to several of his clients. Accordingly, after consideration of all of the factors in this matter, we conclude that respondent should be suspended from the practice of law for a period of one year and until further order of the Court.
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, GREEN, AND MARTOCHE, JJ. (Filed Nov. 25, 2011.)

Commission On Judicial Conduct Starts Hearing Bronx Surrogate Court Judge Lee Holtzman's Corruption Case on Dec. 14, 2011

2011-12-10T15:42:00.000-08:00

Corruption case against Bronx Surrogate Lee Holzman by judicial conduct panel is persuasive
EDITORIALS
DAILY NEWS STAFF WRITER
Wednesday, September 14, 2011
LINK
The state Commission on Judicial Conduct has persuasively laid out a case as to why Bronx Surrogate Judge Lee Holzman should be removed from office.
Panel director Robert Tembeckjian unveiled the findings of an investigation that was triggered by Daily News reports about Holzman's questionable behavior.
As surrogate, Holzman is responsible for probating wills and overseeing the estates of the dead, particularly when there is no will and no readily identifiable executor.
The commission staff found that Holzman let lawyer pal Michael Lippman loot estates, taking hundreds of thousands of dollars to which he was not entitled. Lippman has since been indicted by the Bronx district attorney and pleaded not guilty.

Matter of Lee L. Holzman

The Appellate Division, First Department, has denied a motion by Surrogate Lee L. Holzman (Bronx County) to stay the Commission's disciplinary proceeding against him, pending his appeal of a lower court decision that also denied his application for a stay.

The Commission authorized formal disciplinary charges against Surrogate Holzman in January 2011. Judge Holzman filed an Answer, and the matter was referred to retired Supreme Court Justice Felice K. Shea, as Referee to hear and report proposed findings of fact and conclusions of law. The hearing commenced on the morning of September 12, 2011, at which time Judge Holzman signed a written waiver of confidentiality.

Prior to September 12, 2011, Judge Holzman commenced a proceeding pursuant to Article 78 of the CPLR, seeking to stay the Commission proceedings against him. The matter was assigned to Acting Supreme Court Justice Barbara Jaffe in Manhtattan. Justice Jaffe sealed the record of the Article 78 proceeding, pending her decision. She rendered decision dated September 8, 2011, dismissing Judge Holzman's Article 78 petition.

Judge Holzman, by counsel, returned to Supreme Court on the morning of September 12, 2011, to renew his application to stay the Commission proceedings against him. Judge Jaffe issued a stay, pending decision. The Commission proceeding before Referee Felice Shea was therefore halted. Judge Jaffe thereafter issued a decision, denying Judge Holzman's renewed application.

The hearing before Referee Felice Shea was scheduled to resume on October 11.

On October 5, 2011, Judge Holzman, by counsel, again sought a stay of the Commission proceedings, pending his appeal of the Supreme Court decision dismissing his Article 78 petition. Associate Justice Sheila Abdus-Salaam of the Appellate Division, First Department, granted an interim stay, pending determination by a full panel of the Court as to Judge Holzman's request for a stay. Justice Abdus-Salaam set an expedited schedule for submission of briefs and consideration of the application by the court. Briefs were filed and the matter was fully submitted on October 12.

Accordingly, the hearing before Referee Felice Shea, scheduled to resume on October 11, was postponed, pending decision by the Appellate Division on Surrogate Holzman's application.

On December 6, 2011, the Appellate Division issued an Order, denying Judge Holzman's application for a stay of Commission proceedings, pending appeal. The disciplinary hearing against Judge Holzman will therefore resume. The Referee has scheduled the following dates: December 14, 15, 16 and 19; January 3, 4, 5, 6, 9, 10, 11, 12 and 13.

The documents as to both the Commission disciplinary proceeding against Surrogate Holzman, and his Article 78 proceeding against the Commission, are available at Holzman Proceedings.

Matter of P. Michael Shanley

The Commission has determined that Oswego City Court Judge P. Michael Shanley (Oswego County) should be censured. The determination is available at Shanley Decision. An accompanying press release is available at 2011 Releases.

Matter of Shari R. Michels

The Commission has determined that New York City Civil Court Judge Shari R. Michels (New York County) should be admonished. The determination is available at Michels Decision. An accompanying press release is available at 2011 Releases.

Matter of John W. Riordan

The Commission has determined that Gouverneur Town Court Justice John W. Riordan (St. Lawrence County) should be admonished. The determination is available at Riordan Decision. An accompanying press release is available at 2011 Releases.

Matter of Kevin V. Hunt

The Commission has determined that Shawangunk Town Court Justice Kevin V. Hunt (Ulster County) should be censured. The determination is available at Hunt Decision. An accompanying press release is available at2011 Releases.

Matter of Lafayette D. Young, Jr.

The Commission has determined that Macomb Town Court Justice Lafayette D. Young, Jr. (St. Lawrence County) should be removed from office. The determination is available at Young Decision. An accompanying press release is available at 2011 Releases.

Judge Young has notified the Court of Appeals that he requests review of the Commission's determination. On November 17, the Court suspended Judge Young from judicial office, with pay, pending disposition of his request for review of the determination. The Court's order is available atYoung Suspension. Judge Young has until December 20, 2011, to submit his brief and the record on review to the Court of Appeals.

The Commission authorized formal disciplinary charges against Lee L. Holzman, Surrogate of Bronx County, in January 2011. Judge Holzman filed an Answer, and the matter was referred to retired Supreme Court Justice Felice K. Shea, as Referee to hear and report proposed findings of fact and conclusions of law. The hearing commenced on the morning of September 12, 2011, at which time Judge Holzman signed a written waiver of confidentiality.

The hearing before Referee Felice Shea was scheduled to resume on October 11.

Accordingly, the hearing before Referee Felice Shea, scheduled to resume on October 11, was postponed, pending decision by the Appellate Division on Surrogate Holzman's application.

Formal Complaint against Judge Holtzman

Order To Show Cause

Attorney General Eric Schneiderman's Memorandum of Law in Support of the CJC

Judge Barbara Jaffe Dismisses The Article 78 Filed By Holtzman

Software Necessary to View Files Subject to Production under NY Freedom of Information Law

2011-12-03T18:22:00.000-08:00

Electronic Discovery Law

Posted at 8:07 AM on December 2, 2011 by K&L Gates

Software Necessary to View Files Subject to Production under NY Freedom of Information Law

TJS of New York, Inc. v. New York State Dep’t of Taxation and Fin., 932 N.Y.S.2d 243 (N.Y. App. Div. Nov. 3, 2011)
In this case, the court determined that the software program necessary to view certain files produced to the petitioner subject to New York’s Freedom of Information Law was a “record” for purposes of the law and was thus subject to production itself.

Pursuant to New York’s Freedom of Information Law, Petitioner requested and received records in connection with a sales tax audit performed by the Department of Taxation and Finance. However, certain data could not be viewed without a copy of the Department’s Audit Framework Extension software, which the Department refused to provide. Accordingly, Petitioner moved to compel production. The motion was denied, as was Petitioner's motion for reconsideration. Petitioner appealed.

Taking up the question, the court provided the broad definition of a “record” under the law, namely “any information kept, held, filed, produced, or reproduced by, with or for an agency …, in any physical form whatsoever ….” The Department argued that the software was not a record because it contained no information. Petitioner disagreed.

The court agreed with the petitioner:

The description of the software submitted by the Department and the reasoning and analysis contained in the advisory opinions relied on by petitioner lead us to conclude that the software at issue contains information and, thus, constitutes a record for FOIL purposes.FN1 Specifically, the affidavit submitted by the Department from an auditor involved in the design and development of the software program, as well as the attached training manual for the software, reveals that the software is the means for conducting an audit and that, based on data entered by an auditor, the program does reconciliations, creates letters, produces forms, determines taxes due or refunds owed and creates a comprehensive audit report. The June 1998 advisory opinion cited by petitioner concludes that software that enables an agency to manipulate data is a record pursuant to FOIL in the same way that a written manual describing a series of procedures would be subject to disclosure under FOIL (see Comm. on Open Govt. FOIL–AO Letter from Robert J. Freeman to George F. Supan [June 24, 1998]; see also Comm. on Open Govt. FOIL–AO–18079 [2010] ). The 2001 advisory opinion references a definition of software as “a series of instructions designed to produce information that can be seen on a screen, printed, stored, transferred and transmitted” and concludes that it is a record subject to FOIL (see Comm. on Open Govt. FOIL–AO–12920 [2001] ). Given these opinions and the Department's own description of the capabilities of the program, we conclude that it is more than just a delivery system or data warehouse and, instead, falls within FOIL's broad definition of a record subject to disclosure (see Public Officers Law § 86[4]; Matter of Data Tree, LLC v. Romaine, 9 N.Y.3d 454, 462, 849 N.Y.S.2d 489, 880 N.E.2d 10 [2007] ).

The court also found that the Department failed to meet its burden of demonstrating the applicability of the proffered statutory exemption.

A copy of the opinion is available here.

Supreme Court, Appellate Division, Third Department, New York.

In the Matter of TJS OF NEW YORK, INC., Appellant,

NEW YORK STATE DEPARTMENT OF TAXATION AND FINANCE et al., Respondents.

Nov. 3, 2011.

Background: Petitioner brought article 78 proceeding to compel Department of Taxation and Finance to produce records that were responsive to petitioner's request under Freedom of Information Law (FOIL) for records related to sales tax audit. The Supreme Court, Albany County, Sackett, J., ordered Department to provide copies of records in electronic format. Department provided data that petitioner could not view on his computer without a copy of Department's software. Petitioner moved to compel production of software. The Supreme Court, Sackett, J., denied motion, and petitioner appealed.

Holdings: The Supreme Court, Appellate Division, Rose, J., held that:

(1) software sought by requester was “record” subject to disclosure under FOIL, and

(2) FOIL exemption for material whose disclosure would jeopardize the capacity of an agency to guarantee the security of its information technology assets did not apply.

Reversed and remitted.

West Headnotes

[1] Records 326 54

326 Records

326II Public Access

326II(B) General Statutory Disclosure Requirements

326k53 Matters Subject to Disclosure; Exemptions

326k54 k. In general. Most Cited Cases

Freedom of Information Law (FOIL) imposes a broad standard of open disclosure, in that all government records are presumptively available to the public unless they fall within a specific statutory exemption. McKinney's Public Officers Law § 84 et seq.

[2] Records 326 54

326 Records

326II Public Access

326II(B) General Statutory Disclosure Requirements

326k53 Matters Subject to Disclosure; Exemptions

326k54 k. In general. Most Cited Cases

Records 326 65

326 Records

326II Public Access

326II(B) General Statutory Disclosure Requirements

326k61 Proceedings for Disclosure

326k65 k. Evidence and burden of proof. Most Cited Cases

Statutory exemptions to disclosure of agency records under Freedom of Information Law (FOIL) are to be narrowly construed to provide maximum access, and the agency seeking to prevent disclosure carries the burden of demonstrating that the requested material falls squarely within a FOIL exemption by articulating a particularized and specific justification for denying access. McKinney's Public Officers Law § 84 et seq.

[3] Records 326 54

326 Records

326II Public Access

326II(B) General Statutory Disclosure Requirements

326k53 Matters Subject to Disclosure; Exemptions

326k54 k. In general. Most Cited Cases

Software belonging to Department of Taxation and Finance, which requester needed to view electronic files that Department produced in response to Freedom of Information Law (FOIL) request, contained information, and thus software was “record” subject to disclosure under FOIL; software was not just delivery system or data warehouse, but enabled Department to manipulate data to conduct sales tax audit, and thus was similar to a written manual that described a series of procedures that would be subject to disclosure under FOIL. McKinney's Public Officers Law § 86(4).

[4] Records 326 54

326 Records

326II Public Access

326II(B) General Statutory Disclosure Requirements

326k53 Matters Subject to Disclosure; Exemptions

326k54 k. In general. Most Cited Cases

Opinions from the Committee on Open Government regarding what constitutes a record that is subject to disclosure under the Freedom of Information Law (FOIL) are not binding authority, but may be considered to be persuasive based on the strength of their reasoning and analysis. McKinney's Public Officers Law § 86(4).

[5] Records 326 54

326 Records

326II Public Access

326II(B) General Statutory Disclosure Requirements

326k53 Matters Subject to Disclosure; Exemptions

326k54 k. In general. Most Cited Cases

Exemption to disclosure under Freedom of Information Law (FOIL), for material whose disclosure would jeopardize the capacity of an agency to guarantee the security of its information technology assets, did not apply to software belonging to Department of Taxation and Finance, which requester needed to view electronic files that Department produced in response to FOIL request for information on sales tax audit; Department contended only that software could be used to generate fraudulent letters, but exemption was concerned with ensuring security of an agency's information technology assets from electronic attack. McKinney's Public Officers Law § 87(2)(i).

[6] Records 326 65

326 Records

326II Public Access

326II(B) General Statutory Disclosure Requirements

326k61 Proceedings for Disclosure

326k65 k. Evidence and burden of proof. Most Cited Cases

Exemption to disclosure under Freedom of Information Law (FOIL), for material whose disclosure would jeopardize the capacity of an agency or an entity that has shared information with an agency to guarantee the security of its information technology assets, is concerned with ensuring the security of information technology assets. McKinney's Public Officers Law § 87(2)(i).

[7] Records 326 52

326 Records

326II Public Access

326II(B) General Statutory Disclosure Requirements

326k52 k. Persons entitled to disclosure; interest or purpose. Most Cited Cases

An applicant's motive for seeking a record under the Freedom of Information Law (FOIL) is generally irrelevant in determining whether record is available under FOIL. McKinney's Public Officers Law § 84 et seq.

*244 Barry Leibowicz, Great Neck, for appellant.

Eric T. Schneiderman, Attorney General, Albany (Paul Groenwegen of counsel), for respondents.

*245 Before: MERCURE, J.P., ROSE, MALONE JR., KAVANAGH and GARRY, JJ., ROSE, J.

Appeals (1) from a judgment of the Supreme Court (Sackett, J.), entered August 25, 2010 in Albany County, which, in a proceeding pursuant to CPLR article 78, denied petitioner's motion to compel respondent Department of Taxation and Finance to produce a certain computer software program pursuant to a Freedom of Information Law request, and (2) from an order of said court (McGrath, J.), entered March 3, 2011 in Albany County, which denied petitioner's motion for reconsideration.

Petitioner made a request under the Freedom of Information Law (see Public Officers Law art. 6 [hereinafter FOIL] ) for records in connection with a sales tax audit performed by respondent Department of Taxation and Finance. When Supreme Court (Sackett, J.) ordered the Department to provide petitioner with copies of its records in an electronic format, the Department provided certain data that could not be viewed without a copy of the Department's Audit Framework Extension software, which it refused to provide. Petitioner then moved to compel production of the software program in order to install it on his computer and view the electronic files. The court denied petitioner's motion, concluding that the software program was exempt from disclosure pursuant to Public Officers Law § 87(2)(i). Petitioner's subsequent motion to renew was denied by Supreme Court (McGrath, J.). Petitioner appeals from both the judgment and the latter order.

[1][2] It is by now axiomatic that FOIL “ ‘impos[es] a broad standard of open disclosure,’ ” in that all government records are presumptively available to the public unless they fall within a specific statutory exemption ( Matter of Schenectady County Socy. for the Prevention of Cruelty to Animals, Inc. v. Mills, 74 A.D.3d 1417, 1418, 904 N.Y.S.2d 512 [2010], affd. ––– A.D.3d ––––, ––– N.Y.S.2d –––– [2011], quoting Matter of Encore Coll. Bookstores v. Auxiliary Serv. Corp. of State Univ. of N.Y. at Farmingdale, 87 N.Y.2d 410, 416, 639 N.Y.S.2d 990, 663 N.E.2d 302 [1995] ). For FOIL purposes, the term record is broadly defined as including “any information kept, held, filed, produced or reproduced by, with or for an agency ..., in any physical form whatsoever, including, but not limited to, reports, statements, examinations, memoranda, opinions, folders, files, books, manuals, pamphlets, forms, papers, designs, drawings, maps, photos, letters, microfilms, computer tapes or discs, rules, regulations or codes” (Public Officers Law § 86 [4] ). On the other hand, statutory “[e]xemptions are to be narrowly construed to provide maximum access, and the agency seeking to prevent disclosure carries the burden of demonstrating that the requested material falls squarely within a FOIL exemption by articulating a particularized and specific justification for denying access” ( Matter of Capital Newspapers Div. of Hearst Corp. v. Burns, 67 N.Y.2d 562, 566, 505 N.Y.S.2d 576, 496 N.E.2d 665 [1986]; see Matter of Carnevale v. City of Albany, 68 A.D.3d 1290, 1292, 891 N.Y.S.2d 495 [2009] ).

[3] The Department, relying on advisory opinions from the Committee on Open Government (see Comm. on Open Govt. FOIL–AO–12366 [2000]; see also Comm. on Open Govt. FOIL–AO–15407 [2005] ), contends that the software at issue does not constitute a record for purposes of FOIL because it contains no information. Instead, the Department characterizes it as a mere delivery system or data warehouse. Petitioner disputes this argument, *246 citing the Department's own description of the software as well as advisory opinions in which the Committee on Open Government concludes that software can constitute a record under FOIL (see Comm. on Open Govt. FOIL–AO–12920 [2001]; Comm. on Open Govt. FOIL–AO Letter from Robert J. Freeman to George F. Supan [June 24, 1998] ).

[4] The description of the software submitted by the Department and the reasoning and analysis contained in the advisory opinions relied on by petitioner lead us to conclude that the software at issue contains information and, thus, constitutes a record for FOIL purposes.^FN1 Specifically, the affidavit submitted by the Department from an auditor involved in the design and development of the software program, as well as the attached training manual for the software, reveals that the software is the means for conducting an audit and that, based on data entered by an auditor, the program does reconciliations, creates letters, produces forms, determines taxes due or refunds owed and creates a comprehensive audit report. The June 1998 advisory opinion cited by petitioner concludes that software that enables an agency to manipulate data is a record pursuant to FOIL in the same way that a written manual describing a series of procedures would be subject to disclosure under FOIL (see Comm. on Open Govt. FOIL–AO Letter from Robert J. Freeman to George F. Supan [June 24, 1998]; see also Comm. on Open Govt. FOIL–AO–18079 [2010] ). The 2001 advisory opinion references a definition of software as “a series of instructions designed to produce information that can be seen on a screen, printed, stored, transferred and transmitted” and concludes that it is a record subject to FOIL (see Comm. on Open Govt. FOIL–AO–12920 [2001] ). Given these opinions and the Department's own description of the capabilities of the program, we conclude that it is more than just a delivery system or data warehouse and, instead, falls within FOIL's broad definition of a record subject to disclosure (see Public Officers Law § 86[4]; Matter of Data Tree, LLC v. Romaine, 9 N.Y.3d 454, 462, 849 N.Y.S.2d 489, 880 N.E.2d 10 [2007] ).

FN1. We note that advisory opinions from the Committee on Open Government are not binding authority, but may be considered to be persuasive based on the strength of their reasoning and analysis (see Matter of John P. v. Whalen, 54 N.Y.2d 89, 96, 444 N.Y.S.2d 598, 429 N.E.2d 117 [1981]; Matter of Town of Waterford v. New York State Dept. of Envtl. Conservation, 77 A.D.3d 224, 230 n. 5, 906 N.Y.S.2d 651 [2010], lv. dismissed 15 N.Y.3d

906, 912 N.Y.S.2d 573, 938 N.E.2d 1008 [2010] ).

[5] We must next consider whether the cited statutory exemption applies. Relying upon Public Officers Law § 87(2)(i), the Department argues that the security of its software program would be jeopardized by disclosure because it could be used to generate false letters or forms which, if sent to taxpayers, could lead them to disclose confidential information. In our view, however, neither the plain language of the exemption, its legislative history, nor the relevant advisory opinions support the Department's position.

[6][7] Public Officers Law § 87(2)(i) exempts material that, “if disclosed, would jeopardize the capacity of an agency or an entity that has shared information with an agency to guarantee the security of its information technology assets, such assets encompassing both electronic information systems and infrastructures.” On its face, the exemption is concerned with ensuring the security of information technology assets. The expressed legislative intent was to protect against the risks of electronic attack, including damage to the assets *247 themselves, interference with the performance of agency computers and programs, and the unauthorized access to an agency's electronic data (see Senate Introducer Mem. in Support, Bill Jacket, L. 2001, ch. 368, at 4–5; see also Comm. on Open Govt. FOIL–AO–13777 [2002]; Comm. on Open Govt. OML–AO–4292 [2006]; Comm. on Open Govt. FOIL–AO–16312 [2006] ). The Department raises no such concerns regarding the use of the software to breach or compromise its own information technology infrastructure, interfere with its own performance of its responsibilities or gain access to or manipulate information maintained by the Department. The Department's only argument, that the uses to which the software are put might be illegal or fraudulent, is, in our view, an overly broad interpretation of the exemption. This is especially so because an applicant's motive for seeking a record is generally irrelevant in determining whether documents are available under FOIL (see Matter of Scott, Sardano & Pomeranz v. Records Access Officer of City of Syracuse, 65 N.Y.2d 294, 296–297, 491 N.Y.S.2d 289, 480 N.E.2d 1071 [1985]; Matter of Schenectady County Socy. for the Prevention of Cruelty to Animals, Inc. v. Mills, 74 A.D.3d at 1420 n. 4, 904 N.Y.S.2d 512). In light of the narrow construction afforded the statutory exemptions (see Matter of Data Tree, LLC v. Romaine, 9 N.Y.3d at 462, 849 N.Y.S.2d 489, 880 N.E.2d 10; Matter of Carnevale v. City of Albany, 68 A.D.3d at 1292, 891 N.Y.S.2d 495), and the Department's failure to articulate a legitimate concern covered by the exemption at issue, we conclude that the Department failed to meet its burden of demonstrating the applicability of the exemption.

Based on our conclusion, petitioner's arguments regarding the denial of his motion to renew and the conditions the Department sought to impose on his access to the software are academic, and we remit petitioner's request for counsel fees to Supreme Court for determination (see Matter of New York State Defenders Assn. v. New York State Police, 87 A.D.3d 193, 197, 927 N.Y.S.2d 423 [2011] ).

ORDERED that the judgment is reversed, on the law, without costs, motion granted, and matter remitted to the Supreme Court for further proceedings not inconsistent with this Court's decision.

ORDERED that the appeal from the order is dismissed, as academic, without costs.

MERCURE, J.P., MALONE JR., KAVANAGH and GARRY, JJ., concur.

N.Y.A.D. 3 Dept.,2011.

TJS of New York, Inc. v. New York State Dept. of Taxation and Finance
932 N.Y.S.2d 243, 2011 N.Y. Slip Op. 07780
END OF DOCUMENT

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