In an action seeking a declaratory judgment that plaintiff, an Irish national, was entitled to naturalize in the U.S., summary judgment for defendant is affirmed where: 1) the one-year absence bar in 8 U.S.C. section 1427(b) applied both to the period preceding the naturalization interview and the period following the interview; and 2) plaintiff was neither exempt from the continuous residence requirement, nor did he present a set of facts that would warrant an estoppel.

Read Gildernew v. Quarantillo, No. 08-6301

Appellate Information

Argued: January 25, 2010

Decided: February 4, 2010

Judges

Per Curiam

Counsel

For Appellant:

Eamonn Dornan, Dornan & Associates, P.L.L.C., New York, NY

For Appellee:

F. James Loprest Jr., United States Attorney's Office for the Southern District of New York, New York, NY

In a group of billboard owners' First Amendment challenge to provisions of New York City's Zoning Resolution, summary judgment for defendants is affirmed where: 1) the city was not required to adopt the "least restrictive means" of advancing its asserted interests; 2) the city did not violate the protections afforded commercial speech when it distinguished between plaintiffs' signs or billboards and those located on government property; and 3) the New York Constitution did not provide broader protection for commercial speech than the First Amendment.

Read Clear Channel Outdoor, Inc. v. City of N.Y., No. 09-1553

Appellate Information

Argued: November 16, 2009

Decided: February 3, 2010

Judges

Opinion by Judge Wesley

Counsel

For Appellants:

Victor A. Kovner, James Eric Rosenfeld and Linda Jane Steinman, Davis Wright Tremaine LLP, New York, NY

For Appellees:

Karen M. Griffin, New York City Law Department, New York, NY

In a drug defect product liability litigation, appellant-law firm's interlocutory appeal from the district court's order finding that all of appellant-law firm's cases that were pending in the district court were subject to certain attorney compensation strictures and that appellant was prohibited from making any disbursements from a fund that it maintained until a fund administrator had certified that the protocols had been adhered to, is dismissed where the injunction did not give or aid in giving substantive relief sought in the lawsuit, and thus there was no jurisdiction under 28 U.S.C. section 1292(a).

Read In re: Zyprexa Prods. Liab. Litig., No. 07-3815

Appellate Information

Argued: March 12, 2009

Final Submission: June 17, 2009

Judges

Per Curiam

Counsel

For Appellant:

Robert J. Lack, Friedman Kaplan Seiler & Adelman LLP, New York, NY

Eric Roberson, The Mulligan Law Firm, Dallas, TX

For Appellee:

William M. Audet, Audet & Partners, LLP, San Francisco, CA

James M. Shaughnessy, Milberg LLP, New York, NY

In a Title VII action based on defendants' alleged retaliation against plaintiffs for their complaints regarding workplace discrimination, summary judgment for defendants is affirmed in part where plaintiffs' allegations in support of many of their claims were overly conclusory.  However, the order is vacated in part where a reasonable jury could find for plaintiffs on their claims regarding defendant's allegedly punitive changes to plaintiff's work schedule.

Read Hicks v. Baines, No. 06-3782

Appellate Information

Argued: April 13, 2009

Decided: February 2, 2010

Judges

Opinion by Judge Jacobs

Counsel

For Appellant:

David J. Seeger, Law Office of David J. Seeger, Buffalo, NY

For Appellee:

William R. Hites, Law Office of William Hites, Buffalo, NY

In a petition for review of a BIA order denying an application for cancellation of removal claiming that petitioner was improperly denied an opportunity to complete an application for naturalization, the case is remanded to the district court where the district court needed to determine the circumstances of petitioner's alleged failure to file tax returns, whether his first naturalization proceeding was terminated for failure to surrender his green card, and if a premature termination occurred, whether petitioner would have proceeded to the point in the citizenship process where he would have become eligible to take the oath of allegiance.

Read Azize v. Bureau of Citizenship & Imm. Servs., No. 05-4315

Appellate Information

Heard: August 26, 2009

Decided: February 1, 2010

Judges

Opinion by Judge Newman

Counsel

For Petitioner:

Hagit M. Elul, Hughes Hubbard & Reed LLP, New York, NY

For Respondents:

F. James Loprest, Jr. and Sarah S. Normand, Special Asst. U.S. Attys., New York, NY

In a corporation's appeal from the district court's order holding it in contempt for failing to comply with a subpoena for corporate records, the order is affirmed where a corporation with a sole shareholder, officer, and employee may not refuse to comply with a subpoena demanding production of corporate records under the Fifth Amendment's "act of production" privilege.

Read Account Servs. Corp. v. US, No. 09-3561

Appellate Information

Argued: December 10, 2009

Decided: February 1, 2010

Judges

Per Curiam

Counsel

For Appellant:

John V. Donnelly III, L. Barrett Boss, Cozen O'Connor, Philadelphia, PA

For Appellee:

For Appellee:

Arlo Devlin-Brown and Michael A. Levy, Assistant United States Attorneys, New York, NY

In an action by an insurer seeking a declaration that it was not obligated to defend its insured in a personal injury action, summary judgment for defendant is reversed where the policy at issue did not cover defendant's auto under any circumstances and, therefore, the district court erred in finding that New York Insurance Law section 3420(d)(2) required plaintiff to timely disclaim coverage.

Read NGM Ins. Co. v. Blakely Pumping, Inc., No. 09-1655

Appellate Information

Argued: December 10, 2009

Decided: February 1, 2010

Judges

Per Curiam

Counsel

For Appellant:

Haydn J. Brill, Brill & Associates, P.C., New York, NY

For Appellee:

Robert D. Cook, Cook, Netter, Cloonan, Kurtz & Murphy, P.C., Kingston, New York

In a murder prosecution, dismissal of petitioner's habeas petition as untimely is vacated where petitioner's mental illness could serve as a ground for equitable tolling of the one-year statute of limitations for filing habeas petitions prescribed by the Antiterrorism and Effective Death Penalty Act.

Read Bolarinwa v. Williams, No. 08-0832

Appellate Information

Argued: November 18, 2009

Decided: January 28, 2010

Judges

Opinion by Judge Katzmann

Counsel

For Appellant:

Theodore S. Green, Green & Willstatter, White Plains, NY

For Appellee:

Ashlyn Dannelly, Assistant Attorney General, New York, NY

In an insurance fraud prosecution, the district court's amended restitution order is affirmed where the provisions of the governing statute in this case, the Victim and Witness Protection Act of 1982, were complied with because, inter alia, the restitution order was imposed at the time that defendant was resentenced following the court of appeals' remand, and defendant did not show that she was prejudiced by the lapse of time preceding resentencing.

Read US v. Rossi, No. 08-6108

Appellate Information

Argued: November 18, 2009

Decided: January 28, 2010

Judges

Per Curiam

Counsel

For Appellant:

Richard Ware Levitt, Levitt & Kaizer, New York, NY

For Appellee:

Jesse M. Furman and Rebecca A. Rohr, Assistant United States Attorneys, New York, NY

In a prisoner's challenge to a prison's rules regarding contraband and smuggling as applied to a pamphlet he possessed, summary judgment for defendants is affirmed in part where plaintiff failed to administratively exhaust his claim regarding the confiscation of certain papers from his cell. However, the order is vacated in part where: 1) the rules at issue were unconstitutionally vague as applied to plaintiff, both because they failed to give him adequate notice and because they failed adequately to constrain the discretion of the prison officials who had the power to impose them; and 2) the right not to be punished under one set of rules for violations of another was clearly established.

Read Farid v. Ellen, No. 07-4057

Appellate Information

Argued: June 8, 2009

Decided: January 28, 2010

Judges

Opinion by Judge Calabresi

Counsel

For Appellant:

Meghann E. Donahue and Philip A. Irwin, Covington & Burling LLP, New York, NY

For Appellees:

Sasha Samberg-Champion and Michelle Aronowitz, Deputy Solicitor Generals, New York, NY