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

Cordiano v. Metacon Gun Club, Inc., No. 07-0795

In an action for violations of the Resource Conservation and Recovery Act, district court judgment is affirmed where: 1) plaintiff's claim that defendant was operating a hazardous waste disposal facility without a permit in violation of 42 U.S.C. sec. 6925(a) was properly dismissed as the lead on defendant's site was not abandoned but was the result of the regular, intended use of lead shot at a shooting range, and thus defendant was not required to obtain a permit under the statute; 2) the court properly granted defendant summary judgment on the imminent and substantial endangerment claim as the fact that defendant's site exceeded RSR and SEH standards was insufficient to create a material issue of fact as to whether lead contamination on the site may present an imminent and substantial endangerment; and 3) the court properly granted summary judgment to defendant on the Clean Water Act claim as plaintiff failed to provide sufficient evidence to raise a material issue of fact as to whether defendant's discharges lead into jurisdictional wetlands from a point source.    

Read Cordiano v. Metacon Gun Club, Inc., No. 07-0795

Appellate Information
Appeal from the United States District Court for the Western District of New York.
Argued: August 4, 2008
Decided: July 31, 2009

Judges
Before RAGGI, WESLEY, and LIVINGSTON, Circuit Judges.
Opinion by LIVINGSTON, Circuit Judge.

Counsel
For Plaintiff: ANDREW J. McDONALD, JAMES T. SHEARIN, DIANE WOODFIELD WHITNEY, Pullman and Comley, LLC, Hartford, Conn.

For Defendant: M. REED HOPPER, Pacific Legal Foundation, Bellevue, Wash.

US v. Plugh, No. 07-2620

District court order granting defendant's motion to suppress statements made by him to FBI agents while in custody is affirmed where: 1) defendant was entitled to the prophylactic bar prohibiting police questioning when he refused to sign the waiver-of-rights form, and the court did not err in finding that the agents violated this prophylactic bar; and 2) the Supreme Court's ruling in Davis, requiring that a suspect clearly and unambiguously invoke his rights in order to regain them after having waived them, does not apply.    

Read US v. Plugh, No. 07-2620

Appellate Information
Appeal from the United States District Court for the Western District of New York.
Argued: September 25, 2008
Decided: July 31, 2009

Judges
Before JACOBS, WESLEY, and HALL, Circuit Judges.
Opinion by WESLEY, Circuit Judge.
Dissenting Opinion by Jacobs, Chief Judge.

Counsel
For Appellant: Stephen Maczynski, Buffalo, NY. 

For Appellee: Jeffrey Wicks, Rochester, NY.

US v. Bah, No. 07-4370

Conviction for operating an unlicensed money transmitting business is vacated and remanded where: 1) the district court erred in refusing to give defendant's requested jury instruction on the scope of 18 U.S.C. sec. 1960; 2) the jury instruction error was not harmless, and defendant is entitled to a new trial; 3) the court did not abuse its discretion in ruling before trial that defendant could not offer evidence of his New Jersey license; 4) the court did not abuse its discretion in permitting the government to question defendant's witness about a complaint against defendant; and 5) the court did not abuse its discretion in denying defendant's unqualified request for funds to fly in witnesses, as defendant failed to establish that the witnesses were necessary for his defense.    

Read US v. Bah, No. 07-4370

Appellate Information
Appeal from the United States District Court for the Southern District of New York.
Argued: November 25, 2008
Decided: July 31, 2009

Judges
Before JACOBS, Chief Judge, WALKER and CALABRESI, Circuit Judges.
Opinion by JACOBS, Chief Judge.

Counsel
For Appellant: Michael A. Young, New York, NY.

For Appellee: Anirdh Bansal, Assistant US Attorney, New York, NY.

Jasco Tools, Inc. v. Dana Corp., No. 08-2762

District court order affirming bankruptcy court's grant of summary judgment for defendant is vacated and remanded where: 1) plaintiff's objections to the procedures leading up to the grant of summary judgment are without merit; 2) the court erred in granting summary judgment as plaintiff should have been allowed to complete discovery of defendant; and 3) there were genuine issues of material fact regarding plaintiff's claim of an alleged conspiracy to misappropriate its trade secrets.    

Read Jasco Tools, Inc. v. Dana Corp., No. 08-2762


Appellate Information
Appeal from the United States District Court for the Southern District of New York.
Argued: January 15, 2009
Decided: July 31, 2009

Judges
Before KEARSE, HALL, and LIVINGSTON, Circuit Judges.
Opinion by KEARSE, Circuit Judge.

Counsel
For Appellant: Alexander Geiger, Rochester, NY.

For Appelle: William Gandy, McLean, VA.

Messina v. White, No. 08-1224

District court judgment denying plaintiff's request for exoneration from, or limitation of, liability for a maritime accident is affirmed where substantial evidence supported the court's finding that the accident was a result of negligence and unseaworthiness, and that plaintiff did not lack privity or knowledge.    

Read Messina v. White, No. 08-1224

Appellate Information
Appeal from the United States District Court for the Eastern District of New York.
Argued: April 20, 2009
Decided: July 31, 2009

Judges
Before KEARSE, SACK, and LIVINGSTON, Circuit Judges.
Opinion by KEARSE, Circuit Judge.

Counsel
For Petitioner: James E. Forde, New York, NY.

For Claimant: Andrew S. Buzin, New York, NY.

US v. Forbes, No. 07-3130

District court order dismissing plaintiff's petition to vacate, set aside, or correct his sentence on the basis of ineffective assistance of counsel is affirmed where appellate counsel's failure to raise a claim that he had the right to counsel at the plea-withdrawal stage was not objectively unreasonable or the cause of any prejudice. 

Read US v. Forbes, No. 07-3130

Appellate Information
Appeal from the United States District Court for the Western District of New York.
Argued: June 25, 2009
Decided: July 30, 2009

Judges
Before PARKER and WESLEY, Circuit Judges, TSOUCALAS, Judge.
Opinion by SCHALL, Circuit Judge.
Dissenting opinion filed by Circuit Judge NEWMAN

Counsel
For Appellant: Eleanor Jackson Piel, New York, NY.

For Appellee: Frank H. Sherman, Office of the United States Attorney for the Western District of New York, Rochester, NY.

Hobson v. Metropolitan Life Ins. Co., No. 07-0364

District Court judgment dismissing plaintiff's challenge to her ERISA plan administrator's denial of her claim for long-term disability benefits is affirmed where: 1) defendant acted within its discretion in denying long term disability benefits to plaintiff as its decision was supported by substantial evidence and was not arbitrary and capricious; and 2) defendant fully and fairly reviewed plaintiff's benefits claim by reasonably taking up each and every aspect of the claim, and plaintiff's arguments disputing the full and fair review were without merit.   

Read Hobson v. Metropolitan Life Ins. Co., No. 07-0364

Appellate Information
Appeal from the United States District Court for the Southern District of New York.
Argued October 30, 2008
Decided July 29, 2009

Judges
Before WALKER, B.D. PARKER, and RAGGI, Circuit Judges.
Opinion by WALKER, Circuit Judge.

Counsel
For Plaintiff: Jason A. Newfield, Frankel & Newfield, P.C., Garden City, N.Y.

For Defendant: Allan M. Marcus, Lester Schwab Katz & Dwyer, LLP, New York, N.Y.

Woods v. Empire Health Choice, Inc., No. 07-4208

In a private cause of action brought under the Medicare Secondary Payer statute, district court judgment dismissing plaintiff's claim is affirmed where: 1) the court properly held that plaintiff lacks standing to bring the action as he alleged no direct injury to himself and any injury he suffered as a federal taxpayer was too generalized and attenuated to constitute an actual injury to himself; and 2) the Medicare Secondary Payer statute does not create a qui tam action, but rather merely enables a private party to bring an action to recover from a private insurer only where that private party has itself suffered an injury because a primary plan has failed to make a required payment to or on behalf of it. 

Read Woods v. Empire Health Choice, Inc., No. 07-4208

Appellate Information
Appeal from the United States District Court for the Eastern District of New York.
Argued January 13, 2009
Decided July 29, 2009

Judges
Before LEVAL, CABRANES, LIVINGSTON, Circuit Judges.
Opinion by LIVINGSTON, Circuit Judge.

Counsel
For Plaintiff: Edward G. Bailey, Bailey & Sherman, P.C., Douglaston, New York.

For Defendant: Daly D.E. Temchine, Epstein Becker & Green, P.C., New York, New York.

Rescuecom Corp. v. Google, Inc., No. 06-4881

In an action for trademark infringement, false designation of origin, and dilution under the Lanham Act, district court's dismissal for failure to state a claim is vacated and remanded where plaintiff's allegations that Google's recommendation and sale of plaintiff's mark to its advertisers triggers the appearance of plaintiff's advertisements and links in a manner likely to cause consumer confusion when a Google user launches a search of plaintiff's trademark, adequately pleads a use in commerce and is a proper claim under the Lanham Act.   

Read Rescuecom Corp. v. Google, Inc., No. 06-4881

Appellate Information
Appeal from the United States District Court for the Northern District of New York.
Argued: April 3, 2008
Decided: April 3, 3009
Errata Opinion: July 28, 2009

Judges
Before: LEVAL, CALABRESI, WESLEY, Circuit Judges.
Opinion by LEVAL, Circuit Judge.

Counsel
For Appellant: Edmund J. Gegan, Rescuecom Corporation, Syracuse, New York.

For Appellee: Michael H. Page, Keker & Van Nest, LLP, San Francisco, California.

Spagnola v. The Chubb Corp., No. 07-1296

In a breach of contract class action involving homeowner's insurance premiums, district court's grant of defendant's motion to dismiss is reversed in part where: 1) the court properly dismissed a claim under New York Insurance Law sec. 3425.5 as the conditional notice requirements of the statute were not triggered; 2) the court erred in dismissing plaintiff's breach of contract action as defendant's explanation for the increase in his coverage amounts and premiums does not resolve the ambiguity of the terms in the policy and does not adequately refute plaintiff's claim that the increases were not based on current costs and values, and thus plaintiff has met the standard necessary to resist the motion to dismiss; 3) the voluntary payment doctrine cannot stand as an alternate basis for dismissal of plaintiff's claim; and 4) the court properly dismissed plaintiff's deceptive business practices claim under New York General Business Law sec. 349 as plaintiff failed to  plead a sufficient injury under the statute.    

Read Spagnola v. The Chubb Corp., No. 07-1296

Appellate Information
Appeal from the United States District Court for the Southern District of New York.
Argued: September 17, 2008
Decided: July 28, 2009

Judges
Before: WALKER, KATZMANN, and JOHN R. GIBSON, Circuit Judges.
Opinion by GIBSON, Circuit Judge.

Counsel
For Plaintiff: ROGER W. KIRBY, Kirby McInerney & Squire, LLP, New York, NY.

For Defendant: KEARA M. GORDON, DLA Piper US LLP, New York, NY.

Finigan v. Marshall, No. 07-0964

District court judgment denying qualified immunity in a 42 U.S.C. sec. 1983 false arrest action is vacated and remanded where defendant had probable cause to arrest plaintiff as it was reasonable for him to believe that a crime had been or was about to be committed.    

Read Finigan v. Marshall, No. 07-0964

Appellate Information
Appeal from the United States District Court for the Northern District of New York.
Argued: January 6, 2009
Decided: July 28, 2009

Judges
Before: WINTER, KATZMANN, and RAGGI, Circuit Judges.
Opinion by WINTER, Circuit Judge.

Counsel
For Appellant: JOHN D. ASPLAND, JR., FitzGerald Morris Baker Firth P.C., Glens Falls, New York

For Appellee: DENNIS B. SCHLENKER, Law Office of Dennis B. Schlenker, Albany, New York.

Iqbal v. Ashcroft, No. 05-6352

On remand from the Supreme Court of the United States, the matter is remanded to the district court for further proceedings in light of the Court's decision in Ashcroft v. Iqbal to decide whether plaintiff can seek leave to amend his deficient complaint   

Read Iqbal v. Ashcroft, No. 05-6352

Appellate Information
On remand from the Supreme Court of the United States.
Decided: July 28, 2009

Judges
Before: NEWMAN, CABRANES, and SACK, Circuit Judges.
Per Curium Opinion

Counsel
For Plaintiff: Alexander A. Reinert, New York, N.Y.

For Defendant: Gregory G. Garre, Department of Justice, Washington, D.C.

Zakrzewska v. The New School, No. 09-0611

Question of whether the Faragher-Ellerth affirmative defense to employer liability applies to sexual harassment and retaliation claims under the New York City Human Rights Law is certified to the New York Court of Appeals where the issue was appropriate for certification because of the absence of authoritative state court decisions, the importance of the issue to the state, and the capacity of certification to resolve this litigation.   

Read Zakrzewska v. The New School, No. 09-0611

Appellate Information
Appeal from the United States District Court for the United States District Court for the Southern District of New York.
Submitted: June 16, 2009
Question Certified: July 27, 2009

Judges
Before: WINTER, CABRANES, and HALL, Circuit Judges.
Per Curium Opinion

Counsel
For Plaintiff: Jason L. Solotaroff, Giscan Solotaroff Anderson & Stewart LLP, New York, NY.
For Defendant: Thomas S. D'Antonio, Ward Norris Heller & Reidy, LLP, Rochester, NY.

Hallingby v. Hallingby, No. 08-1866

District court judgment dismissing action to enforce divorce settlement provision for waiver of spouse-survivor benefits is vacated and remanded where plaintiff's claims should be resolved on the basis of state law principles rather than ERISA, as plaintiff's claims are under the group annuity contract rather than pension plans and annuities are not governed by ERISA.    

Read Hallingby v. Hallingby, No. 08-1866

Appellate Information
Appeals from the United States District Court for the Southern District of New York.
Submitted April 28, 2009
Decided July 24, 2009

Judges
Before KEARSE, SACK, and HALL, Circuit Judges.
Opinion by KEARSE, Circuit Judge.

Counsel
For Plaintiff: Richard H. Dolan.
For Defendant: James G. McCarney.

De Angelis v. Comm'r of Internal Revenue, No. 08-1143

Tax court order finding deficiencies in the payments of income taxes is affirmed where: 1) payments to partnerships were distributions to the plaintiffs personally, and thus were not deductible as ordinary and necessary business expenses under Internal Revenue Code sec. 162 (a); and 2) the amounts of the life insurance premiums paid by the plaintiffs are not included as gross income under Internal Revenue Code section 61 (a).   

Read De Angelis v. Comm'r of Internal Revenue, No. 08-1143

Appellate Information
Appeal from the United States Tax Court.
Argued May 29, 2009
Decided July 21, 2009

Judges
Before: LEVAL, POOLER and PARKER, Circuit Judges.
Per Curium Opinion

Counsel
For Petitioner: Ira B. Stechel, Wormser, Kiely, Galef & Jacobs LLP, New York, NY,

For Respondent: Randolph L. Hutter, United States Department of Justice, Washington, D.C.

US v. Amico, No. 08-1338

Sentence for participating in a continuing financial crimes enterprise and conspiracy to commit bank and mortgage fraud is affirmed where the 2001 amendment to the gross receipts provision of the United States Sentencing Guidelines is a substantive change to an unambiguous provision and therefore does not apply retroactively.   

Read US v. Amico, No. 08-1338

Appellate Information
Appeal from the United States District Court for the Western District of New York.
Argued July 7, 2009
Decided July 21, 2009

Judges
Before: CALABRESI and HALL, Circuit Judges, and SESSIONS, District Judge
Per Curium Opinion

Counsel
For Plaintiff: Terrance P. Flynn, United States Attorney, Buffalo, NY.

For Defendant: J. Scott Porter, Seneca Falls, N.Y.

Am. Academy of Religion v. Napolitano, No. 08-0826

District court's grant of summary judgment to defendants on plaintiffs' claim that the denial of a visa for an Islamic scholar violated their First Amendment rights is vacated and remanded where: 1) the district court had jurisdiction to consider the claim, despite the doctrine of consular nonreviewability; 2) the Immigration and Nationality Act provision expanding visa ineligibility to those who contributed funds to a terrorist organization before the provision was enacted was validly applied; 3) the knowledge requirement of the statute required the consular officer to find that the applicant knew his contributions provided material support; and 4) the record does not establish that the consular officer who denied the visa confronted the with applicant with the allegation that he knowingly rendered material support to a terrorist organization, thereby precluding the applicant for an opportunity to satisfy the provision that exempts exclusion if the he can demonstrate that he did not know, and should not reasonably have known, that the organization was a terrorist organization. 

Read Am. Academy of Religion v. Napolitano, No. 08-0826

Appellate Information
Appeal from the United States United States District Court for the Southern District of New York.
Heard March 24, 2009
Decided July 17, 2009

Judges
Before: FEINBERG, NEWMAN, and RAGGI, Circuit Judges.
Opinion by NEWMAN, Circuit Judge.

Counsel
For Plaintiff: Jameel Jaffer, New York, N.Y.

For Defendant: Davis S. Jones, Asst. U.S. Atty., New York, N.Y.

US v. Mercado, No. 08-1017

Conviction for drug crimes is affirmed where: 1) there was sufficient evidence to support defendant's conviction; and 2) the district court did not abuse its discretion by admitting the prior bad acts evidence of defendant's previous firearms sales, as the evidence at issue was relevant and highly probative as to knowledge and intent. 

Read US v. Mercado, No. 08-1017

Appellate Information
Appeal from the United States United States District Court for the Southern District of New York.
Argued March 17, 2009
Decided July 17, 2009

Judges
Before: CALABRESI and WESLEY, Circuit Judges, and DRONEY, District Judge.
Opinion by BRYSON, Circuit Judge.

Counsel
For Appellant: AMANDA KRAMER, Assistant United States Attorney, New York, N.Y.,

For Appellee: ELIZABETH E. MACEDONIO, Bayside, N.Y.

Cloverleaf Realty of N.Y., Inc. v. Town of Wawayanda, No. 07-3405

District court order dismissing a procedural due process claim as precluded by an earlier dismissal of a similar claim by a New York state court for lack of timeliness is vacated where the dismissal of a claim solely for lack of timeliness in a New York state court does not preclude the same claim from being brought in another jurisdiction with a longer statute of limitations, including a federal court exercising its federal question jurisdiction.    

Read Cloverleaf Realty of N.Y., Inc. v. Town of Wawayanda, No. 07-3405

Appellate Information
Appeal from an order of the United States District Court for the Southern District of New York.
Argued December 8, 2008
Decided July 15, 2009

Judges
Before: FEINBERG, LEVAL, and CABRANES, Circuit Judges.
Opinion by FEINBERG, Circuit Judge.

Counsel
For Appellant: James G. Sweeney.

For Appellee: Richard J. Guertin, Maria Condoluci.

Amalfitano v. Rosenberg, No. 06-2364

District court judgment is affirmed where: 1) the New York Court of Appeals determined that N.Y. Jud. Law sec. 487 permits the award of treble damages for an attempted deceit of the New York courts; 2) thus, the district court correctly assumed that defendant committed actionable fraud for purposes of sec. 487 from the commencement of the litigation at which time defendant was merely attempting to deceive and had not yet successfully deceived the Appellate Division into reversing a default judgment, and correctly assumed that the fraud was a proximate cause of the defendants' incurring legal fees to defend against the entire litigation.    

Read Amalfitano v. Rosenberg, No. 06-2364

Appellate Information
Appeal from the United States District Court for the Southern District of New York.
Argued: September 6, 2007
Decided: July 14, 2009

Judges
Before: WALKER, CALABRESI, and SACK, Circuit Judges.
Per Curium Opinion

Counsel
For Plaintiff: Richard E. Hahn, Llorca & Hahn LLP.

For Defendant: William J. David, Scheichet & Davis, P.C.

Davidoff v. CVS Corp., No. 07-2872

In a trademark infringement action, district court order issuing a preliminary injunction enjoining defendant from selling plaintiff's trademarked products with the unique production code removed is affirmed where district court correctly found that plaintiff was likely to succeed on the merits in its contention that defendant's sales of its products with the UPC removed constituted trademark infringement, as the UPC codes play an important role in controlling quality and helping the trademark owner guard against counterfeits and protect the reputation of the mark.   

Read Davidoff v. CVS Corp., No. 07-2872

Appellate Information
Appeal from the United States District Court for the Southern District of New York.
Argued: October 15, 2008
Decided: June 19, 2009
Errata Opinion filed: July 14, 2009

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

Counsel
For Plaintiff: Lisa Pearson, Kilpatrick Stockton LLP.

For Defendant: Megan Muoio, Allyn & Fortuna LLP. 

South Cherry Street, LLC v. Hennessee Group LLC, No. 07-3658

In a action for breach of contract and securities fraud, district court's grant of plaintiff's motion to dismiss is affirmed where: 1) the court properly ruled that plaintiff's contract claim was barred by the Statute of Frauds as the possibility of performance of the alleged oral agreement within one year depended solely on the will and actions of plaintiff, the party seeking to enforce the agreement; and 2) plaintiff's securities fraud claim under the Securities Exchange Act and SEC rules fail for lack of plausible and cogent allegations of scienter as the factual allegations do not give rise to an inference of either fraudulent intent or conscious recklessness, and the inferences advocated by plaintiff were not as compelling as an inference of negligence.    

Read South Cherry Street, LLC v. Hennessee Group LLC, No. 07-3658

Appellate Information
Appeal from the United States District Court for the Southern District of New York.
Argued: January 16, 2009
Decided: July 14, 2009

Judges
Before JACOBS, Chief Judge, KEARSE and HALL, Circuit Judge.
Opinion by KEARSE, Circuit Judge.

Counsel
For Plaintiff: Ted Poretz

For Defendant: Bennett Falk

In a trademark dispute involving Austrian liquor, district court order granting defendants motion to dismiss for improper venue is reversed and remanded where the subject matter of plaintiff's claims is not covered by the forum selection clauses contained in the licensing agreement as plaintiff's claims do not sound in contract and are not based on rights originating from the licensing agreement.    

Read Altvater Gessler-J.A. Baczewski Int'l Inc. v. Sobieski Destylarnia S.A., No. 07-2273

Appellate Information
Appeal from the United States District Court for the Southern District of New York.
Argued: September 22, 2008
Decided: July 13, 2009

Judges
Before: WESLEY, HALL, and GIBSON, Circuit Judges.
Opinion by GIBSON, Circuit Judge.

Counsel
For Plaintiff: Christopher L. Deininger

For Defendant: Jamie D. Underwood

US v. Martinez, No. 08-3454

Sentence for drug crimes is affirmed where the district court properly found that defendant was not eligible for a sentence reduction as  his sentence as a career offender under U.S.S.G. sec. 4B1.1 was not based on a sentencing range that was subsequently lowered by the Sentencing Commission.    

Read US v. Martinez, No. 08-3454

Appellate Information
Appeal from the United States District Court for the Southern District of New York.
Argued: June 18, 2009
Decided: July 13, 2009

Judges
Before: MINER, CABRANES, and HALL, Circuit Judges.
Per Curium Opinion

Counsel
For Appellant: Edward S. Zas, Federal Defenders of New York, Inc., New York, NY.

For Appellee: Amie N. Ely, Office of the United States Attorney for the Southern District of New York, New York, NY

US v. Daye, No. 08-1012

Sentence for being a felon in possession of a firearm is vacated and remanded where: 1) defendant's prior state conviction for engaging in a sexual act with a minor satisfies the standard articulated in Begay and is therefore a violent felony under the residual clause of the Armed Career Criminal Act; and 2) the District Court must consider of remand whether Defendant's escape conviction constitutes a conviction for a violent felony under Chambers, and whether his two prior state convictions stem from conduct committed on different occasions for purposes of the Act. 

Read US v. Daye, No. 08-1012

Appellate Information
Appeal from the United States District Court for the District of Vermont.
Submitted: November 18, 2008
Filed: July 10, 2009

Judges
Before MINER, RAGGI, LIVINGSTON, Circuit Judges.
Opinion by LIVINGSTON, Circuit Judge.

Counsel
For Appellant: Mary P. Kehoe, Lisman, Webster & Leckerling, P.C.

For Appellee: William B. Darrow, Assistant United States Attorney.

Harris v. Mills, No. 07-2283

In an employment discrimination action brought under the Americans with Disabilities Act and the Rehabilitation act, district court judgment granting the defendants' motion to dismiss the plaintiff's pro se amended complaint is affirmed where: 1) the district court erred in concluding that claims under Title II of the ADA and the Rehabilitation Act cannot be asserted against individuals in their official capacity; 2) plaintiff's amended complaint fails to state reasonable accommodation claims upon which relief can be granted, as both of his claims are legally insufficient; and 3) plaintiff's due process rights were not violated, as he was given notice and an opportunity to be heard before his petition for reinstatement was denied, and a New York Civil Practice Law and Rules Article 78 post-deprivation hearing. 

Read Harris v. Mills, No. 07-2283

Appellate Information
Appeal from the United States District Court for the Southern District of New York.
Argued February 2, 2009
Decided July 9, 2009

Judges
Before SACK and PARKER, Circuit Judges, and COTE, District Judge.
Opinion by SACK, Circuit Judge.

Counsel
For Appellant: Douglas G. Wadler, Law Office of Kenneth Joel Haber, P.C., Rockville, MD.

For Appellee: Marion R. Buchbinder, Assistant Solicitor General, New York, NY.

In a dispute involving disability insurance benefits, district court judgment dismissing plaintiff's ERISA claim is affirmed where the court was correct to enforce the limitations period of the benefits plan in its entirety, including its prescribed start date, and to dismiss plaintiff's claim as time-barred as it was brought after the expiration of the limitations period. 

Read Burke v. PricewaterhouseCoopers LLP Long Term Disability Plan, No. 08-1611

Appellate Information
Appeal from the United States District Court for the Southern District of New York.
Argued April 30, 2009
Decided July 9, 2009

Judges
Before B.D. PARKER, WESLEY, Circuit Judges, and MURTHA, District Judge.
Opinion by MURPHY, Circuit Judge.

Counsel
For Plaintiff: Stephane M. Montas, DeHaan Busse, LLP, Hauppauge, N.Y.

For Defendant: Michael H. Bernstein, Sedgwick Detert Moran & Arnold, LLP, New York, N.Y.

Transfield ER Cape Ltd. v. Industrial Carriers Inc., No. 09-1733

In a dispute involving a maritime attachment and garnishment against a corporate alter ego, district court order vacating the attachment is affirmed where, if a corporation is registered with the New York Department of State and therefore found within the district for the purposes of Rule B of the Supplemental Rules for Admiralty and Maritime Claims and Asset Forfeiture Actions, that corporation's alter egos are also found within the district and the property of those alter egos is not subject to maritime attachment. 

Read Transfield ER Cape Ltd. v. Industrial Carriers Inc., No. 09-1733

Appellate Information
Appeal from the United States District Court for the Southern District of New York.
Submitted: May 5, 2009
Decided: July 8, 2009

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

Counsel
For Plaintiff: George Michael Chalos, Chalos & Co., P.C., Oyster Bay, NY.

For Defendant: Garth S. Wolfson, Mahoney & Keane, LLP, New York, NY.

US v. Pearson, No. 07-0142

Sentence for producing, transporting, receiving, and possessing child pornography is vacated and remanded further sentencing proceedings where a restitution order pursuant to 18 U.S.C. sec. 2259 may include an amount for estimated future medical expenses, but the district court did not explain adequately its calculation of the restitution amount in the order. The district court's judgment of conviction is affirmed in all other respects. 

Appellate Information
Appeal from the United States District Court for Northern District of New York.
Submitted: May 20, 2009
Decided: July 2, 2009

Judges
Before MINER, KATZMANN, and RAGGI, Circuit Judges.
Per Curium Opinion 

Counsel
For Appellant: Paul D. Silver, Steve Grocki, US Attorney's Office, Albany, NY.

For Defendant: Laurie S. Hershey, Manhasset, NY.

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Arnold's Wines, Inc. v. Boyle, No. 07-4781

District court order granting defendants' motions to dismiss plaintiff's request for a declaratory judgment is affirmed where sections of the New York Alcoholic Beverage Control Laws banning direct sales to consumers by out-of-state liquor retailers and instituting a three-tier system for the regulation of alcoholic beverages evenhandedly regulate the importation and distribution of liquor within the state and do not discriminate against out-of-state producers in violation of the Commerce Clause, and thus are a valid exercise of the state's rights under the Twenty-first Amendment. 

Read Arnold's Wines, Inc. v. Boyle, No. 07-4781

Appellate Information
Appeal from the United States District Court for the Southern District of New York.
Argued January 29, 2009
Filed: July 1, 2009

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

Counsel
For Plaintiff: Peter E. Seidman, Milberg LLP, New York, NY.
For Respondent: Richard P. Dearing, Assistant Solicitor General, New York, NY.

Lafaro v. N.Y. Cardiothoracic Group, PLLC, No. 08-4621

In an antitrust action, district court's grant of judgment on the pleadings and dismissal on grounds that state action immunity applied to all defendants is vacated and remanded where: 1) defendant Westchester County Health Care Corporation is entitled to the same status as a municipality for purposes of the state action immunity analysis, and the behavior by WCHCC was a foreseeable consequence of the authorizations in WCHCC's enabling statute; and 2) a private party is not exempted from the active supervision prong of the Midcal test simply by virtue of purporting to act pursuant to a contract with a governmental entity that itself would be entitled to state action immunity, and on remand the private defendants-doctors must therefore show that they were actively supervised by WCHCC in order to share in its immunity. 

Read Lafaro v. N.Y. Cardiothoracic Group, PLLC, No. 08-4621

Appellate Information
Appeal from the United States District Court for the Southern District of New York.
Argued March 16, 2009
Filed: July 1, 2009

Judges
Before: CALABRESI and WESLEY, Circuit Judges, and DRONEY, District Judge.
Opinion by DRONEY, District Judge.

Counsel
For Petitioner: Richard G. Menaker, Menaker & Herrmann, New York, N.Y
For Respondent: Jordy Rabinowitz, Westchester County Health Care Corporation, Valhalla, N.Y.