U.S. Second Circuit: June 2009 Archives
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June 2009 Archives

In an action involving payments related to a lease and recognition agreement, district court judgment in favor of plaintiff is vacated and remanded where: 1) New York's Uniform Commercial Code does not prohibit defendant from asserting constructive eviction as a defense to plaintiff's claims arising from the lease; 2) the estoppel certificate in the recognition agreement does not bar defendant's constructive eviction defense if defendant was unaware of the faulty condition of the building pad when it executed the parties' recognition agreement and its lack of awareness was reasonable at the time; and 3) if defendant was constructively evicted, the lease was terminated and defendant was relieved of its obligation to pay rent under the "hell or high water" clause of the parties' recognition agreement. 

Read Reliastar Life Ins. Co. of New York v. Home Depot U.S.A, Inc., No. 07-0087

Appellate Information
APPEAL from a judgment of the United States District Court for the Eastern District of New York.
Argued: March 25, 2008
Decided: June 29, 2009

Judges
Before JACOBS, Chief Judge and HALL, Circuit Judge.
Per Curium Opinion

Counsel
For Appellee: Anthony M. Piccione, Otterbourg, Steindler, Houston & Rosen, P.C., New York, NY.
For Appellant: John H. Gross, Proskauer Rose LLP, New York, NY.

Mahmood v. Holder, No. 07-5656

Petition for review of a decision denying plaintiff's motion to reopen his removal proceedings following expiration of the period for voluntary departure is granted and the order vacated and remanded where the Agency incorrectly assumed that plaintiff's failure to depart timely from the United States conclusively barred an adjustment of his status and thus may have led it to decline to consider whether to exercise its discretionary sua sponte authority to reopen his removal proceedings. 

Read Mahmood v. Holder, No. 07-5656

Appellate Information
Petition for review of a decision by the Board of Immigration Appeals.
Argued: November 24, 2008
Decided: April 1, 2009
Amended: June 25, 2009

Judges
Before: WINTER, WALKER, and CALABRESI, Circuit Judges.
Opinion by CALABRESI, Circuit Judge.

Counsel
For Petitioner: Usman B. Ahmad, Long Island City, N.Y.

For Respondent: Gregory G. Katsas, United States Department of Justice, Washington, DC.

Watson v. Geren, No. 07-2563

District court judgment granting plaintiff's petition for a writ of habeas corpus in a case involving an application for discharge as a conscientious objector is affirmed where: 1) in the event that Department of the Army Conscientious Objector Review Board does not provide an adequate statement of the reasons for its denial of a conscientious objector application, a district court must remand to the Army for a statement of reasons unless such remand would be utterly futile; and 2) the record contains no basis in fact to support the denial of plaintiff's application for discharge as a conscientious objector and thus remand to the DACORB for an adequate statement of reasons would be futile. 

Read Watson v. Geren, No. 07-2563

Appellate Information
Appeal from the United States District Court for the Eastern District of New York.
Argued: April 22, 2009
Decided: June 25, 2009

Judges
Before MCLAUGHLIN, CALABRESI, and KATZMANN, Circuit Judges.
Opinion by KATZMANN, Circuit Judge.

Counsel
For Petitioner: Raymond J. Toney, New York, NY.

For Respondent: Joshua Waldman, United States Department of Justice, Washington, DC.

Moran v. Astrue, No. 07-1728

District court judgment affirming a denial by the Commissioner of Social Security of two applications by plaintiff for benefits is vacated and remanded where plaintiff proceeded pro se at his hearing, and the judge failed to provide the requisite assistance to plaintiff in developing a record to support his application. 

Read Moran v. Astrue, No. 07-1728

Appellate Information
Appeal from the United States District Court for the Northern District of New York.
Argued: October 23, 2008
Decided: June 24, 2009


Judges
Before: KEARSE, SACK, and KATZMANN, Circuit Judges
Opinion by SACK, Circuit Judge.

Counsel
For Plaintiff: Mark Schneider, Plattsburgh, NY.

For Defendant:  Vernon Norwood, Special Assistant United States Attorney, New York, NY.

Wilson v. Mazzuca, No. 03-2459

District court judgment denying plaintiff's petition for habeas corpus relief is reversed and remanded where: 1) the Antiterrorism and Effective Death Penalty Act's deferential standard of review for a claim resolved on the merits by a state court is not displaced when a district court conducts additional fact finding in habeas proceedings; and 2) the court unreasonably applied clearly established federal law in concluding that that plaintiff received the effective assistance of counsel at his trial, as trial counsel's performance was objectively unreasonable and there is a reasonable probability that but for counsel's unprofessional errors the result of the proceeding would have been different. 

Read Wilson v. Mazzuca, No. 03-2459


Appellate Information
Appeal from the United States District Court for the Eastern District of New York.
Argued: April 8, 2008
Decided: June 24, 2009


Judges
Before: WALKER, CABRANES, and RAGGI, Circuit Judges.
Opinion by CABRANES, Circuit Judge.

Counsel
For Petitioner: Erik Bierbauer, Debevoise & Plimpton LLP, New York, NY.

For Respondent: Malancha Chanda, Office of the Attorney General of the State of New York, New York, NY.

District court order granting defendant's motion to reduce the amount held by maritime attachment pursuant to the Supplemental Rules for Admiralty or Maritime Claims and Asset Forfeiture Actions is affirmed where defendant demonstrated good cause to reduce the amount of the attachment, and the district court properly exercised its discretion in drawing the preliminary conclusion that plaintiff was likely to recover only the costs it incurred in securing the release of the Vessel and in thus reducing the amount of the attachment. 

Read Transportes Navieros y Terrestres S.A. v. Fairmount Heavy Transport N.V., No. 07-3929

Appellate Information
Appeal from the the United States District Court for the Southern District of New York
Argued: February 25, 2009
Decided: June 23, 2009


Judges
Before: KEARSE and KATZMANN, Circuit Judges, and BIANCO, District Judge.
Opinion by KATZMANN, Circuit Judge.

Counsel
For Plaintiff: Alfred J. Rufty, III, Harris & Rufty, LLC, New Orleans, LA

For Defendant: Charles E. Murphy, Lennon, Murphy & Lennon, LLC, New York, NY

Cablevision Sys. Corp. v. FCC, No. 07-5553

Petition for review of an order of the FCC directing plaintiff to carry the signal of a television station is denied where: 1) the FCC adequately analyzed and explained the statutory factors; 2) the FCC's decision did not contravene the purpose of the must-carry statute; 3) plaintiff failed to demonstrate that the FCC applied the market modification provision unconstitutionally in violation of the First Amendment; and 4) plaintiff did not establish that by ordering it to carry the station, the FCC effected a taking in violation of the Fifth Amendment. 

Read Cablevision Sys. Corp. v. FCC, No. 07-5553

Appellate Information
Appeal from the Federal Communications Commission
Argued: April 7, 2008
Decided: June 22, 2009

Judges
Before WALKER, CABRANES, and RAGGI, Circuit Judges.
Opinion by JOHN M. WALKER, JR., Circuit Judge.

Counsel
For Petitioner: Henk Brands, Paul, Weiss, Rifkind, Wharton & Garrison LLP, Washington, D.C.

For Respondent: Jacob M. Lewis, Federal Communications Commission, Washington, D.C.

Wong v. Doar, No. 08-4992

In a dispute involving Medicaid benefits, district court's grant of  summary judgment in favor of defendants on plaintiff's challenge to the State Medicaid Manual is affirmed where: 1) the court did not err in allowing defendants to rely on the State Medical Manual sec. 3259.7 in treating as income his monthly contribution of SSDI benefits to a Special Needs Trust in determining the extent of Medicaid benefits to which he was entitled, as SMM sec. 3259.7 does not conflict with the plain language of 42 U.S.C. sec. 1396p(d), and Skidmore deference is warranted to the issuance of the statute as an exercise of discretion to fill a gap left by Congress on the issue; and 2) plaintiffs procedural challenge to 42 C.F.R. sec. 435.832 is time-barred

Read Wong v. Doar, No. 08-4992

Appellate Information
Appeal from the United States District Court for the Southern District of New York
Argued: February 23, 2009
Decided: June 22, 2009

Judges
Before CABRANES, RAGGI, and HALL, Circuit Judges.
Opinion by REENA RAGGI, Circuit Judge.

Counsel
For Appellant: Aytan Yehoshua Bellin, Bellin & Associates LLC, White Plains, New York

For Appellee:
Carolina A. Fornos, Assistant United States Attorney. Carol Fischer, Assistant Solicitor General. Janet Z. Zaleon, New York City Law Dept., New York, NY

 

Zino Davidoff SA v. CVS Corp., No. 07-2872-cv

In a trademark infringement action based on Defendant's sales of Plaintiff's trademarked products with the unique production code removed, a preliminary injunction in favor of Plaintiff is affirmed, where the production codes play an important role in helping the trademark owner to guard against counterfeits and protect the reputation of the mark.

Read Zino Davidoff SA v. CVS Corp., No. 07-2872-cv.

Appellate Information

Argued: October 15, 2008
Decided: June 19, 2009

Judges

Before: LEVAL, KATZMANN, and LIVINGSTON, Circuit Judges.
Opinion by LEVAL, Circuit Judge.

Counsel

LISA PEARSON (Christopher Lick, on the brief; Adam H. Charnes and W. Andrew Pequignot, of counsel), Kilpatrick Stockton LLP, New York, NY, for Plaintiff-Appellee.

MEGAN MUOIO (Nicholas Fortuna, on the brief), Allyn & Fortuna LLP, New York, NY, for Defendant-Appellant.

Henry v. U.S. Trust Co., No. 07-0355-cv

In an ERISA action challenging a stock purchase under an Employee Stock Ownership Plan (ESOP), the dismissal of the complaint is reversed where, when an ESOP incurs debt to finance a purchase of shares of stock and then later sells the shares in exchange for cancellation of some of that debt, the debt cancellation in the second transaction should not be construed as having reduced the purchase price paid in the first transaction.

Read Henry v. U.S. Trust Co., No. 07-0355-cv.

Appellate Information

Argued: October 21, 2008
Decided: June 19, 2009

Judges

Before: FEINBERG, WINTER, and POOLER, Circuit Judges.
Opinion by WINTER, Circuit Judge.

Counsel

TERENCE J. DEVINE (Stanley H. Shayne, Shayne Nichols, LLC, Columbus, Ohio; Gary D. Greenwald, Keller Rohrback, PLC, Phoenix, Arizona, on the brief), DeGraff, Foy, Kunz & Devine, LLP, Albany, New York, for Plaintiffs-Appellants.

EDWARD A. SCALLET (Lars C. Golumbic and Dipal A. Shah, Groom Law Group Chartered, Washington, D.C.; Robert N. Eccles, Jonathan D. Hacker, and Schan S. Duff, O'Melveny & Myers, LLP, Washington, D.C., on the brief), Groom Law Group Chartered, Washington, D.C., for Defendant-Appellee. 

US v. Lucky, No. 08-1939-cr

Defendant's firearm possession conviction is affirmed where, when police stopped Defendant's car, they had reasonable suspicion in light of the fact that the automobile had the same license plate number and description as one used to flee from a shooting two days earlier.

Read US v. Lucky, No. 08-1939-cr.

Appellate Information

Argued: April 24, 2009
Decided: June 19, 2009

Judges

Before: CALABRESI, KATZMANN, Circuit Judges, EATON, Judge. The Honorable Richard K. Eaton, United States Court of International Trade, sitting by designation.
Opinion by CALABRESI, Circuit Judge.

Counsel

SREEVAMSHI C. REDDY, Assistant United States Attorney (David C. James, Assistant United States Attorney, on the brief), for Benton J. Campbell, United States Attorney for the Eastern District of New York, Brooklyn, N.Y., for Appellee.

NORMAN TRABULUS, New York, N.Y., for Defendant-Appellant.

Civil Service Employees' Association v. NLRB, No. 07-5041-ag

In a union's petition for review of an NLRB decision finding lawful an employer's termination of non-union employees for having picketed a health clinic, the petition is granted, where the distinctions Congress made in 29 U.S.C. section 158(d) between striking and picketing indicate an intent to protect an employee from such discipline imposed by reason of participation in picketing without the notice required of labor organizations by Section 158(g).

Read Civil Service Employees' Association v. NLRB, No. 07-5041-ag.

Appellate Information

Argued: December 4, 2008
Decided: June 19, 2009

Judges

Before: LEVAL, POOLER, AND B.D. PARKER, Circuit Judges.
Opinion by BARRINGTON D. PARKER, Circuit Judge.

Counsel

HAROLD CRAIG BECKER (Nancy Hoffman, General Counsel, Miguel G. Ortiz, Senior Associate Counsel, Daren Rylewicz, Senior Associate Counsel, CSEA/AFSCME Local 1000, Albany N.Y., on the brief), Chicago, IL, for Petitioner Civil Service Employees Association, Local 1000, AFSCME.

ELIZABETH A. HEANEY, Attorney (Fred B. Jacob,Supervisory Attorney, Ronald Meisburg, General Counsel, John E. Higgins, Jr., Deputy General Counsel, John H. Ferguson, Associate General Counsel, Linda Dreeben, Deputy Associate General Counsel, on the brief), Washington, DC, for Respondent National Labor Relations Board.

CYNTHIA K. SPRINGER, Baker & Daniels LLP, Indianapolis, IN, for Intervenor Correctional Medical Services, Inc.

Baba v. Holder, No. 08-0212-ag

Petitioner's petition for review of the denial of his asylum petition is granted where the BIA erred in ruling that the treatment suffered by Petitioner on account of his political opinion did not amount to persecution because Petitioner retained his government employment.

Read Baba v. Holder, No. 08-0212-ag.

Appellate Information

Argued: October 17, 2008
Decided: June 19, 2009)

Judges

Before: McLAUGHLIN, LEVAL, and POOLER, Circuit Judges.
Opinion by LEVAL, Circuit Judge.

Counsel

BIYALO WATARA BABA, Pro Se, New York, NY, for Petitioner.

ARAM GAVOOR (Peter D. Keisler, Assistant Attorney General; Barry Pettinato, Assistant Director; John D. Williams, Trial Attorney, Office of Immigration Litigation, on the brief), Civil Division, U.S. Department of Justice, Washington, DC, for Respondent.

Laforest v. Honeywell Int'l., Inc., No. 06-5712-cv

In an ERISA action to enforce a pension guaranty agreement, the District Court's award of attorney's fees to Plaintiffs based on the summary judgment they obtained on their ERISA claims is vacated where the District Court erred by taking into account factors relating to non-ERISA claims in the lawsuit in determining the fee award.

Read the full decision in Laforest v. Honeywell Int'l., Inc., No. 06-5712-cv.

Appellate Information:

Argued on May 29, 2008
Decided on June 18, 2009

Judges:

Before JACOBS, Chief Judge, CALABRESI and SACK, Circuit Judges. Chief Judge Jacobs concurs in part and dissents in part in a seperate opinion

Opinion by SACK, Circuit Judge.

Counsel:

WILLIAM A. WERTHEIMER, JR., Bingham Farms, Michigan, for Plaintiff-Appellant.

JOSEPH J. COSTELLO (Tasmin J. Newman of counsel), Morgan Lewis & Bockius LLP. Philadelphia, Pennsylvania for Defendant-Third- Party-Plaintiff-Appellant. 

Jaramillo v. Weyerhaeuser Co., No. 07-0507-cv

In a tort action based on injuries sustained by Plaintiff while operating a paper manufacturing machine that Defendant-Employer purchased used from a third party, summary judgment for Defendant is affirmed where Defendant could not be held strictly liable because it was a "casual" or "occasional" seller of the machine at issue, not an "ordinary" or "regular" seller.

Read the full decision in Jaramillo v. Weyerhaeuser Co., No. 07-0507-cv.

Appellate Information:

Argued on March 5, 2008
Decided on June 18, 2009)

Judges:

Before WESLEY, LIVINGSTON, Circuit Judges, and COGAN, District Judge. The Honorable Brian M. Cogan, United States District Judge for the Eastern District of New York, sitting by designation.

Opinion by PER CURIAM.

Counsel:

JAMES ALEXANDER BURKE, Larkin, Axelrod, Ingrassia, & Tetenbaum, LLP, Newburgh, New York, for Plaintiff-Appellant.

KEVIN BURNS, Goldberg Segalla, LLP, White Plains, New York, for Defendant-Cross-Claimant-Cross-Defendant-Appellee Weyerhaeuser Company.

Petitioner's petition for review of an NLRB order, finding that petitioners had violated various provisions of the National Labor Relations Act, 29 U.S.C. section 151 et seq. by refusing to recognize and bargain with the United Food and Commercial Workers Union Local 1625, is denied where the panel of the NLRB was a lawfully convened panel of three members, and the panel continued to operate properly after one of its members ceased to serve on the Board, because there remained a quorum of two members.

Read the full decision in Snell Island SNF LLC v. National Labor Relations Board, No. 08-3822-ag, 08-4336-ag.

Appellate Information:

Argued on April 15, 2009
Decided on June 17, 2009

Judges:

Before WINTER, CABRANES, and SACK, Circuit Judges.

Opinion by JOSÉ A. CABRANES, Circuit Judge.

Counsel:

CHARLES P. ROBERTS, III, (Clifford H. Nelson, Jr., on the brief), Constangy, Brooks & Smith, LLC, Winston-Salem, NC, and Atlanta, GA, for Petitioners-Cross-Respondents.

RUTH E. BURDICK, Attorney (Ronald Meisburg, General Counsel, John E. Higgins, Jr., Deputy General Counsel, John H. Ferguson, Associate General Counsel, Linda Dreeben, Deputy Associate General Counsel, Robert J. Englehart, Supervisory Attorney, and David A. Seid, Attorney, on the brief), National Labor Relations Board, Washington, D.C., for Respondent-Cross-Petitioner.

US v. Jass, No. 06-4899-cr, 06-4951-cr

Defendants' child pornography convictions and sentences are affirmed, where: 1) any Sixth Amendment error due to the introduction of Defendant's redacted confession was harmless; and 2) the District Court applied an unwarranted sentencing enhancement for using a computer to solicit sexual activity with a minor, but the District Court stated that it would have imposed the same below-Guidelines sentence in any event.

Read the full decision in US v. Jass, No. 06-4899-cr, 06-4951-cr.

Appellate Information:

Argued on April 8, 2008
Decided on June 16, 2009

Judges:

Before WALKER, CABRANES, and RAGGI, Circuit Judges.

Opinion by REENA RAGGI, Circuit Judge.

Counsel:

MARCIA S. COHEN, Assistant United States Attorney (John P. Collins, Jr., Diane Gujarati, Assistant United States Attorneys, on the brief), for Michael J. Garcia, United States Attorney for the Southern District of New York, New York, New York, for Appellee.

COLLEEN P. CASSIDY, Federal Defenders of New York, Inc., Appeals Bureau, New York, New York, for Defendant-Appellant Marian Jass.

LARRY SHEEHAN, Law Office of Larry Sheehan, Esq., Bronx, New York, for Defendant-Appellant Kenneth Leight.