U.S. Second Circuit

US v. Pearson, No. 07-0142

2009-07-02T19:53:21Z

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

2009-07-01T21:37:11Z

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

2009-07-01T21:30:38Z

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.

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

2009-06-30T00:25:57Z

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

2009-06-25T22:52:08Z

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

2009-06-25T22:41:30Z

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

2009-06-24T19:16:48Z

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

2009-06-24T18:56:13Z

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.

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

2009-06-23T19:18:09Z

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

2009-06-22T21:55:45Z

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

2009-06-22T21:38:25Z

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

2009-06-19T22:17:51Z

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

2009-06-19T22:07:51Z

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

2009-06-19T22:02:26Z

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

2009-06-19T21:54:36Z

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.