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Petitioner-Respondent, -against-



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

SCHLAM STONE & DOLAN LLP Michael C. Marcus Elizabeth Wolstein 26 Broadway - 19th Floor New York, New York 10004 Telephone: (212) 344-5400 Facsimile: (212) 344-7677 ewolstein@schlamstone.com

Attorneys for Petitioner-Respondent Sergio Hernandez

Petitioner-Respondent, -againstNew York County Clerk's Index No.: 106213/2011



Petitioner-Respondent Sergio Hernandez respectfully submits this reply memorandum of law in response to the Affirmation in Opposition of Francis F. Caputo, Esq. ("Caputo Aff." or the "City's Affirmation"), and in further support of his motion to dismiss the instant FOIL appeal for failure to prosecute, pursuant to First Department Rules 600.5(d) and 600.12(b).

The City's Affirmation offers no explanation for its failure to abide by this Court's rules; no dispute that the record on appeal consists of a few pieces of FOIL correspondence and the pleadings in the court below; and no substantive response to Mr. Hernandez's showing that the lAS Court did not err in assessing the City's argument against disclosure as "spurious" and "utterly devoid of merit," except to say that the argument is "novel," Caputo Aff.

8, i.e.,

without a basis in fact or law. Instead, the City notes that its lawyers are busy people and blames Mr. Hernandez's counsel for not requesting an extension of the City's 30-day deadline, as though we should have known that the Corporation Counsel does not consider Rule 600.5(d) as binding on it. But Mr. Hernandez and his counsel were entitled to assume that the City would not disregard this Court's rules, and the City has it entirely backward in suggesting that Mr. Hernandez's counsel should have sought to extend the City's deadline, to Mr. Hernandez's evident detriment and despite that it was the City that faced default in the absence of an

extension. Had counsel done so the City might or might not have accepted. Caputo Aff. ,-r 5. Whether the City believes it need not comply with the Rules or fear dismissal like other litigants, its view of Rule 600.5(d) as imposing no genuine deadline, and of its default as requiring no remedy, has severely prejudiced Mr. Hernandez and will continue to do so absent relief from this Court. Accordingly, the Court should either dismiss the City's meritless appeal or set the appeal down for the June Term or special dates at the end of May.

First, the City offers no explanation for its failure to perfect its appeal in accordance with this Court's deadlines, or to seek an extension of time to do so. Instead, the City seeks to turn its default into an occasion for blaming Mr. Hernandez for not trying to extend the City's 30-day deadline. But Mr. Hernandez had every right to expect the City to adhere to the deadline absent a request for an extension, which the City never made. Even assuming the correctness of the proposition that most appeals are perfected more than one month after the notice of appeal is filed, Caputo Aff. ,-r 6, surely that is not because the litigant misses the deadline and then arrogates to itself the authority to unilaterally adopt a briefing schedule of its own choosing, as the City appears to believe is its right here. If the City was unable to perfect its appeal in the 30 days required by the Rule, it was incumbent upon the City, not on Mr. Hernandez, to seek an extension. Having failed to either meet its deadline or seek an extension, the City should not now be heard to blame Mr. Hernandez for seeking the relief for which this Court's Rules expressly provide in this situation. Indeed, given that theCitis overriding purpose is to delay resolution of the appeal and the disclosure ordered by the lAS Court, there is no reason to think the City would have been receptive to a request by Mr. Hernandez for a briefing schedule on a short

horizon (even assuming a litigant should be expected to seek an extension of another party's deadline against his own interests) -particularly given the City's assertion that the Corporation Counsel is too busy to be bound by the Rules' 30-day deadline or to perfect its appeal before the September Term. Next, the four months between the City's denial of Mr. Hernandez's FOIL appeal and commencement of the Article 78 proceeding have no bearing on the irreparable harm the City
has caused Mr. Hernandez by delaying, for a year and a half and counting, release of the Emails

based on an unmeritorious defense that was its sole argument below and constitutes its sole argument on appeal. Four months to locate a lawyer and for the lawyer to review the case and prepare a memorandum of law and Article 78 petition is hardly unreasonable. Indeed, unlike the City here, Mr. Hernandez's briefing had to also address FOIL's personal privacy exemption, based on the City's assertion of that exemption in the administrative phase - a defense to disclosure it later abandoned in the Article 78 proceeding, after Mr. Hernandez had briefed it. But that is beside the point. Even if Mr. Hernandez had found a lawyer and the lawyer had filed a petition and brief within two months- or two weeks- of the City's final administrative denial,
Mr. Hernandez would be in the same position he is in now, namely, in possession of a favorable

judgment that he is prohibited by law from enforcing, and waiting for the City to take the required steps to prosecute its appeal. As this hypothetical illustrates, the cause of Mr. Hernandez's irreparable harm is not the time it took to commence this proceeding, but the City's delay in prosecuting its unmeritorious appeal in light of the automatic stay that gives the City every incentive to continue to delay resolution of the appeal for as long as possible, preferably, it must be presumed, until the Mayor leaves office or the public loses interest in the story behind Ms. Black's appointment. While the

City's unmeritorious defense has obviously deprived Mr. Hernandez of the ability to report on the Cathie Black story all along, he now has a judgment in hand, which tips the equities considerably in his favor. Nor is Mr. Hernandez's irreparable harm argument deficient as an evidentiary matter, see Caputo Aff.

7. That Mr. Hernandez has been irreparably harmed by the

City's conduct is a legal argument, which the Court can accept or reject based on its persuasiveness. But the facts underlying the argument- that Mr. Hernandez was a journalist who made his FOIL request as part of a newsgathering effort, see Mem. Dec. at 2, Wolstein Aff. Exh. A, and that the City denied the request and has never disclosed the Emails - are clearly established in the record. Given that no money damages can compensate Mr. Hernandez for his ongoing inability to report on the Black Emails as a result of the City's conduct, the argument for irreparable harm is compelling. Labels aside, it requires no leap of faith to see that a journalist's inability to report on an issue of significant public interest constitutes severe harm that amply justifies, if not dismissal, then the expedited briefing Mr. Hernandez requests in the alternative. Finally, even if the Court declines to dismiss the appeal, the City would not be prejudiced by a grant of the relief requested in the alternative, namely, to have the appeal placed on the calendar for the June Term or special dates at the end of May. The City fully briefed its admittedly "novel" legal theory for withholding the Black Emails in the court below and that would of necessity constitute its briefing on appeal. The argument turns on a single FOIA exemption, the one for "inter-agency or intra-agency materials," Pub. Officers Law 89(2)(g), and the documents at issue fall into a single category: emails between the Mayor's Office and Ms. Black (and others at Hearst) dating to the period before she became Chancellor. In short, this is a single-issue appeal the arguments for which have already been written. Nineteen days is more than enough time, or if the Court concludes otherwise it could order a special briefing

schedule that provides for some additional time while still placing the appeal on the calendar for special dates at the end of May. Gathering the record on appeal imposes no additional burden given its extraordinarily limited contents, consisting of the few pages of the parties' FOIL correspondence and the Petition and Answer below.

For all the foregoing reasons and those set forth in Mr. Hernandez's opening memorandum of law, this Court should dismiss the appeal for failure to prosecute, pursuant to First Department Rules 600.5(d) and 600.12(b), or vacate the automatic stay, or, in the alternative, direct the Mayor's Office to perfect its appeal for the June 2012 Term or for special dates at the end of May 2012; and should award Mr. Hernandez his litigation costs, including attorneys' fees, incurred in making this application.

Dated: New York, New York March 8, 2012

By: Mich C. Marcus Elizabeth W olstein 26 Broadway, 19th Floor New York, New York 10004 Telephone: (212) 344-5400 Facsimile: (212) 344-7677 E-Mail: ewolstein@schlamstone.com

Attorneys for Petitioner-Respondent

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