SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION: FIRST DEPARTMENT

SERGIO HERNANDEZ,

-against-
OFFICE OF THE MAYOR OF THE CITY OF
NEW YORK,
Respondent-Appellant.
New York County Clerk's
Index No.: 106213/2011
NOTICE OF MOTION
TO DISMISS APPEAL
PLEASE TAKE NOTICE that, upon the annexed Affirmation of Elizabeth Wolstein,
Esq., dated February 28, 2012, with exhibits thereto; and the accompanying memorandum of
law, Petitioner-Respondent Sergio Hernandez will move this Court at the Courthouse, located at
27 Madison Avenue, New York, New York 10010 on the _ _ day of March, 2012, at 10
o'clock A.M. in the forenoon of that day; or as soon thereafter as counsel may be heard, for an
Order dismissing this appeal taken by Respondent-Appellant appealing from the Order of the
Supreme Court, New York County, and entered in the Office of the Clerk ofthe Court, Supreme
Court, New York County, on December 6, 2011 (the "Judgment"), upon the ground that
Respondent-Appellant has failed to file and serve the papers required by C.P .L.R. 5530 within
the required time limit set by Rule 600.5(d) of this Court, or vacating the automatic stay of the
Judgment imposed by operation of CPLR 5519(a); and for such other and further relief as the
Court deems proper.
PLEASE TAKE FURTHER NOTICE that answering papers, if any, shall be served by
hand delivery and electronic mail on Schlam Stone & Dolan LLP, attention: Elizabeth Wolstein,
Esq. ([email protected]) by the close of business on March_, 2012.
Dated: New York, New York
February 29, 2012
BY HAND DELIVERY TO:
Elizabeth Freedman, Esq.
By:
SCHLAM STONE & DOLAN LLP
Elizabeth Wolstein
26 Broadway-19th Floor
New York, New York 10004
Telephone: (212) 3 4 4 ~ 5 4 0 0
Facsimile: (212) 344-7677
[email protected]
Attorneys for Petitioner-Respondent
Sergio Hernandez
Office of the Corporation Counsel of the City of New York
1 00 Church Street
New York, New York 10007
efreedma@law .nyc. gov
Attorneys for Respondent-Appellant Office of the Mayor
of the City of New York
2
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE DIVISION: FIRST DEPARTMENT
SERGIO HERNANDEZ,
Petitioner-Respondent,
-against-
OFFICE OF THE MAYOR OF THE CITY OF
NEW YORK,
Respondent-Appellant.
New York County Clerk's
Index No.: 106213/2011
AFFIRMATION OF ELIZABETH
WOLSTEIN IN SUPPORT OF
MOTION TO DISMISS APPEAL
ELIZABETH WOLSTEIN, an attorney duly admitted to practice in the Courts of this
State, affirms the following to be true under penalty of perjury:
I. I am a partner at Schlam Stone & Dolan LLP, attorneys for Petitioner-Respondent
Sergio Hernandez in the above-captioned appeal. I submit this Affirmation in support of Mr.
Hernandez' s motion to dismiss the appeal (the "Motion") of Respondent-Appellant Office of the
Mayor of the City of New York (the "Mayor's Office") for failing to file the record on appeal, as
required by CPLR 5530, within the time limit set by Rule 600.5(d) of this Court. The matters set
forth herein are based upon my personal knowledge.
2. Due to the urgent nature of the Motion, Mr. Hernandez requests that the Court set
the return date for a period shorter than the eight days specified in CPLR 2214(b ). The Motion is
urgent because it seeks, as alternative relief to dismissal of the appeal, that the Court direct the
Mayor's Office to perfect its appeal for the June 2012 Term, in which case the record on appeal
would be due on March 19, 2012, or for special dates at the end of May 2012.
3. Such alternative relief is necessary, in the absence of a grant of the motion, due to
the irreparable harm Mr. Hernandez, a journalist, has suffered as a result of the Mayor's Office's
delay in perfecting its unmeritorious appeal. The time he has lost in not being able to report on a
story of obvious public importance close in time to the events being reported can never be
recovered. At the sarn:e time, by operation ofCPLR 5519(a), Mr. Hernandez is deprived of the
benefit of his favorable judgment. The harm to Mr. Hernandez and the public caused by the
combination of(a) the Mayor's Office's failure to pursue what our memorandum of law shows is
a patently unmeritorious appeal, and (b) the automatic stay, make it of vital public importance
that the Mayor's Office's appeal be heard and disposed of as quickly as possible, if it is not
dismissed entirely.
4. Perfecting the appeal for the June Term or for special dates at the end of May
2012 would not pose an undue hardship on the Mayor's Office. As shown in its Pre-Argument
Statement (Exhibit B hereto), this is a simple appeal involving a single legal issue: whether
emails between the Mayor's Office and private citizens outside the agency were properly
withheld as "inter-agency or intra-agency materials" within the meaning of the State's Freedom
of Information Law. The issue was fully briefed by the Mayor's Office in the court below and
the briefmg on appeal will of necessity simply repeat what was already said there.
5. The factual record is similarly limited, consisting essentially of the pleadings and
the correspondence between Mr. Hernandez and the Mayor's Office relating to his FOIL request.
The record on appeal is therefore unlikely to exceed 50 to 75 pages, if that.
6. Accordingly, there is no reason the record on appeal and Respondent-Appellant's
brief could not be filed by March 19, 2012, so that the appeal may be placed on the calendar for
the June 2012 Term.
7. Attached hereto as Exhibit A is a true and correct copy of the memorandum
decision and order of the trial court in this matter, entered on or about December 6, 2011, from
which the Mayor's Office has taken this appeal.
2
8. Attached hereto as Exhibit B is a true and correct copy of the Mayor's Office's
Notice of Appeal and Pre-Argument Statement, filed on or about December 7, 201 1.
9. Attached hereto as Exhibit C is a true and correct copy of the Verified Answer
filed by the Mayor's Office in this matter on or about July 21, 2011.
Dated: New York, New York
February 28,2012
3
EXHIBIT A
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Suptfilme Court Records OniJne c 2.of 12
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
In the Matter of the Application of
SERGIO HERNANDEZ,
For a Judgment Under Article 78
------X
Petitioner,
of the Civil Practice Law and Rules,
-against-
OFFICE OF THE MAYOR OF THE CITY OF
NEW YORK,
Respondent.
----------------- - - - - - - - - - - - - - - - - ~ X
SCHLESINGER, J.:
Index No. 106213/11
Motion Sequence 001
This Article 78 proceeding involves the rights of the press and the public to
receive information regarding decisions made by our Mayor to fill high-level positions in
the New York City government. The case is of particular note in that it involves the
controversial hiring of Ms. Cathleen Black to serve as New York City Schools
Chancellor, a position she obtained only with a waiver of the credentialing requirements
and a position she held for only a brief period of time. It is also noteworthy in light of the
ongoing investigation by the New York City Public Advocate Bill de Blasia into why the
City reportedly "fails so miserably to release even the most routine data requested
under the state's Freedom of Information Law."
1
Background Facts
Petitioner Sergio Hernandez is a freelance journalist who currently reports for
ProPublica in New York City. At the time of the events at issue here, Mr. Hernandez
was reporting for The Village Voice and contributing to its blog "Runnin' Scared."
1
See The New York Times Editorial MThey Like Transparency, Until They Don't,"
November 14, 2011.
Supreme Court Records On Line Library - page 3 of 12
NOV 2 8 2011
lAS MonON SUPPORT OFFICE
NV< C:t LCIRI=Mil" t'niiRT.t"TVTI
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By e-mail dated November 19, 2010 addressed to "A. Crowell" at City Hall, Mr.
Hernandez made a request for documents pursuant to the New York State Freedom of
Information Law (FOIL), codified.at 84 et seq. of the New York State Public Officers
Law (POL) (Petition, Exh A). In the e--mail, Mr. Hernandez identified himself as a
reporter affiliated with the Village Voice and indicated that he was making the request
"as part of a effort and not for commercial use." He then requested
copies of the following materials:
messages sent from or received by any state
electronic mail accounts assigned to the Office of the
Mayor to or from an individual named Cathleen
Prunty "Cathle"Biack or e-mail addresses containing
the domain hearst.com.
Mr. Hernandez emphasized that time was of the essence, and he urged City Hall to
promptly provide whatever records were "available immediately," with others to follow
as they were located. He also reminded the City that it was required to justify any
denials or deletions "by reference to specific exemptions of the Law."
Despite the stated urgency of the November 19 request, the apparent
newsworthiness of the subject, and at least two follow-up requests from Mr. Hernandez,
the Mayor's Office did not respond for approximately 60 days. That response was in the
form of a letter dated January 13, 2011 from Anthony W. Crowell, Counselor to the
Mayor, mailed to Mr. Hernandez (Exh B). In the letter, Mr. Crowell denied the FOIL
request in its entirety, stating that:
Please be advised that we are withholding responsive
documents pursuant to Public Officers Law Section 87(2)(b),
which allows agencies to withhold information that "if
disclosed would constitute an unwarranted invasion of
personal privacy;" and Public Officers Law Section 87(2)(g),
which allows agencies to withhold "inter-agency and intra-
agency materials."
2
Supreme Court Recoros OnLine Library- page 4 of 12
In accordance with the instructions included at the end of Mr. Crowell's letter, Mr.
Hernandez immediately filed an appeal by - m ~ i l dated January 19, 2011 addressed to
Deputy Mayor Carol Robles-Roman, with a copy to Mr. Crowell (Exh C). After
recounting the details of his request and the procedural history, Mr. Hernandez argued
why the City's denial was "in error" and contrary to the legislative policy favoring open
government. First arguing generally why disclosure was justified, Mr. Hernandez stated
as follows:
It should be emphasized that prior to January 3, 2011, Ms.
Black was a private citizen employed by Hearst Corporation,
a privately-held media conglomerate based in New York
City. Since at least June 22, 2009, Hearst Corporation has
owned and controlled the Internet domain name
"hearst.com" and e-mail accounts associated with that
domain. Because the initial request was filed before Ms.
Black came under the city's employ, and because FOIL
applies only to records that exist when the request is made,
Ms. Black was still a private citizen within the scope and
purpose of this request.
Mr. Hernandez then went on to argue with specificity why the two claimed
exemptions were inapplicable. With regard to the first claimed exemption based on
purported "unwarranted invasion of privacy," he asserted (with a relevant citation to
Gould v New York City Police Department, 89 NY2d 267, 275) that "blanket exemptions
for particular types of documents" were barred and that the law required the City to
disclose the documents with appropriate redactions. With regard to the second claimed
exemption based on documents exchanged between agencies or within an agency, he
asserted (with a relevant citation to POL 86, subd. 3) that communications between
the City and a private citizen such as Ms. Black or the Hearst Corporation did not
qualify as either inter-agency or Intra-agency materials.
3
Supreme Court Records OnLine Library - page 5 of 12
e
Ms. Robles-Roman, Deputy Mayor for Legal Affairs, denied the appeal by letter
dated January 26, 2011 (Exh D). Without addressing any of the arguments made by Mr.
Hernandez, Ms. Robles-Roman simply stated that she had "determined that Mr. Crowell
properly withheld these documents" pursuant to the exemptions stated in his letter. She
concluded by advising Mr. Hernandez of his right to challenge the determination via an
Article 78 proceeding. That is the proceeding before this Court now.
Discussion
The purpose of the Freedom of Information Law is to "promote open government
and public accountability" with the law imposing "a broad duty on government to make
its records available to the public." Tuck-It-Away Associates, L.P. v Empire State
Development Corp., 54 AD3d 154, 162 (1
8
t Dep't 2008), affd 13 NY23d 882, quoting
Matter of Gould v New York City Police Dept., 89 NY2d 267, 274 (1996). Not only is this
principle firmly entrenched in our judicial opinions, but the Legislature articulated it
clearly and unequivocally when promulgating the statute, firmly declaring at Public
Officers Law 84 as follows:
The legislature hereby finds that a free society is
maintained when government is responsive and responsible
to the public, and when the public is aware of governmental
actions. The more open a government is with its citizenry,
the greater the understanding and participation of the public
in government. .. .
The people's right to know the process of governmental
decision-making and to review the documents and statistics
leading to determinations is basic to our society. Access to
such information should not be thwarted by shrouding it with
the cloak of secrecy or confidentiality.
The legislature therefore declares that government is the
public's business and that the public, individually and
collectively and represented by a free press, should have
access to the records of government in accordance with the
provisions of this article.
4
Supreme Court Records Online Library - page 6 of 12

Consistent with this policy, the courts have routinely construed FOIL to mean
that all documents are "presumptively available for review" unless they fall under one of
the limited exemptions set forth in POL 87(2). See, supra, citing Matter
of M. Farbman & Sons v New York City Health & Hosps. Corp., 62 NY2d 75 (1984).
Further, the burden Is on the government to establish that
the requested material"falls squarely within a FOIL
exemption by articulating a particularized and specific
justification for denying access." Capital Newspapers Div of
Hearst Corp. v Bums, 67 NY2d 562, 566 (1986).
The City in this case has wholly failed to apply either the policy declared by our
Legislature or the dictates of our Court of Appeals detailed above. The conclusory,
blanket denials do not satisfy the standard set by the law. What is more, a review of the
two claimed exemptions reveals that neither one applies.
A claimed "unwarranted invasion of personal privacy" does not permit the
wholesale withholding of a document. Rather, POL 89(2), specifies a list of identifying
details that the agency may redact when it makes records available. While the City may
redact "employment history", the e-mails presumably do not contain any confidences
regarding that issue. Quite the contrary, Ms. Black's employment history was a matter
of public record at the time of her appointment due to the need for awaiver of certain of
the credentialing requirements. The privacy exemption is intended to apply to
information of a genuinely private nature only, [see, New York Committee for
Occupational Safety and v Bloomberg, 72 A03d 153, 160 (1st Dep't 2010)], and the
City has given no indication that the requested e-mails contain any such information.
5
Supreme Court Records OnLine Ubrary - page 7 of 12
e
What is more, a balancing of the potential privacy interests at stake against the
public interest in disclosure favors disclosure in this case with appropriate redactions.
Particularly instructive here is the First Department's decision in Kwas.nik v City of New
York, 262 AD2d 171 (1'
1
Dep't 1999). There the Appellate Division affirmed the trial
court's direction to the City University of New York to disclose the public employment
history of certain employees who purportedly did not meet the licensing requirement for
employment when hired. The court stated: This result is supported by opinions of the _
Committee on Open Government, to which the courts should defer ... , favoring
\
disclosure of public employees' resumesif only because public employment is, by dint
of FOIL itself, a matter of public record .... "262 AD2d at 172 (citations omitted). In
applying the balancing test to the circumstances of the case, the court concluded that
"the agency's need for infonnation would be great and the personal hardship of
disclosure small (see, Public Officers Law [2][b][ivJ)." /d.
Such is the case here. As Ms. Black did not meet the credentialing requirements
for the all-important position of School Chancellor, the public has the right to know what
information about her employment history and qualifications was disclosed in the a-
mails. Any information of an intensely personal nature could easily be redacted, with
the balance of the information disclosed. Indeed, despite its earlier blanket denial of the
FOIL request on privacy grounds, the City's position in this litigation appears to be that
while telephone numbers, ~ I I phone numbers, and personal e-mail addresses should
be redacted, the remaining text of the e-m ails is not exempt from disclosure on privacy
grounds. As petitioner does not dispute that such redactions are appropriate, they will
be allowed by this Court.
'6
Supreme Court Records Online Library - page 8 of 12
The City's second claimed exemption relating to inter-agency or intra-agency
records is particularly specious, as it by definition involves communications between or
within governmental agencies. POL 86(3). It is undisputed that Ms. Black and the
Hearst employees were private citizens at the time the subject e-mails were written.
Simply put, the statute offers no exemption for agency communications with private
citizens such as Ms. Black. Records that consist of communications with people
outside the agency must be disclosed. See, Miller v NY State Dept. of Trans., 58 AD3d
981, 984-85 (3rd Dept 2009)(DOT's press releases and communications with people
outside the agency were not exempt as intra-agency documents).
Wholly devoid of merit is the City's claim that Cathleen Black and her staff were
agents of the City during the relevant time. The City argues that because the City had
an interest in addressing concerns by Commissioner Steiner about Ms. Black's
qualifications for the position of Chancellor, and because Ms. Black was providing
information to assist the Mayor in addressing those concerns, Ms. Black and her staff
were acting as de facto "agents" or as "consultants" for the City.
Neither the facts nor the law on agency support this argument. As petitioner
correctly notes, as a mayoral nominee Ms. Black was not bound to act on the Mayor's
behalf, and the Mayor had no basis to exert control over Ms. Black before her
appointment was confirmed. While Ms. Black may well have followed the Mayor's
guidance in order to assist her in receiving the appointment they both desired, and
while the interests of both parties may well have been served by obtaining the
information needed to address Commissioner Steiner's concerns, those facts do not
constitute a principal-agent or consultant relationship.
7
Supreme Court Records OnLine Library - page 9 of 12
e
What is more, applying the exemption in a case such as this would not serve the
policy behind the exemption. The obvious purpose of the exemption is to encourage
"people within an agency to exchange opinions, advice and criticism freely and frankly,
without the chilling prospect of public disclosure." Matter of New York Times Co. v City
of NY Fire Dept. 4 NY2d 267, 176 (1996) However, communications with people
outside the agency are not considered part of the government's deliberative process,
and their disclosure will not inhibit decision-making within the government. See Miller,
supra.
Here, the e-mails presumably do not relate to the State Education Department's
actual deliberative process in deciding whether to grant Ms. Black the requested waiver.
Instead, they involve efforts by the City to obtain information to prepare the waiver
request, complete the mayoral appointment process, and address community concerns
about Ms. Black's qualifications for the position. Ms. Black was the appointee, and not a
consultant, in that process. Thus, no basis for the exemption exists.
Regarding petitioner's request for attorney's fees, based on the papers submitted
to date and oral argument, the Court finds that the interests of all parties would be
served by a conference to further address the issues raised.
Accordingly, it is hereby
ADJUDGED that the petition is granted and respondent is directed to release the
subject records consistent with the terms of this decision within fifteen days of the date
of this decision; and it is further
8
Supreme Court Records OnLine Library - page 1 0 of 12

I f
. '
"
ORDERED that counsel for both parties shall appear before this Court in Room
222 on Wednesday, January 4, 2012 at 9;30 a.m. to further address the issue of
counsel fees.
Dated: NOv 2 8 zau
...
9
Supreme Court Records OnLine Library - page 11 of 12
..
'It
Index 106213/2011
SUPREME COURT OF TilE STATE OF NEW YORK
COUNTY OF NEW YORK
In the Matter of the Application of
SERGIO HERNANDEZ.
Petitioner,
For a Judgment Under Article 78 of the Civil Practice
Law and Rules,
-against-
OFFICE OF THE MAYOR OF TilE CllY OF NEW YORK,
Respondent.
ORDER AND JUDGMENT
MICHAEL A. CARDOZO
Corporation Counsel of the City of New YOI'k
Attorney for &spondent
I 00 Church Street
New York, N. Y. 10007
OfCmmul JeffDantuwilZ
(212) 788-0939
Due and timely service is hereby admitted
New YOI'k, N.Y. ........................................................................ 2011
Esq.
Attorney for ............. .................... ..... ................. ................................... .
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EXHIBITB
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK

SERGIO HERNANDEZ,
For a Judgment Under Article 78
ofthe Civil Practice Law and Rules,
-against-
Petitioner,
NOTICE OF APPEAL
lndeJC No. 106213/11
THE OFFICE OF THE MAYOR OF THE CITY
OF NEW YORK,

-----------------------------------------------------------------------}(
PLEASE TAKE NOTICE that respondent hereby to the Appellate
Division of the Supreme Court, First Department, from the order and judgment (one paper) of
the Honorable Alice Schlesinger herein dated 23, 2011 and e11tered in the office of the
Clerk of New York County on or about December 6, 2011. This appeal is taken from each and
every part of said order and judgment (one paper) as well as fromthe whole thereof.
Dated: New York, New York
December 7, 201 1
TO: SCHLAM STONE & DOLAN LLP
Attorneys for Petitioner
26 Broadway, 19th
New York, New York 10004.
(212) 344-5400
CLERK
Cotmty of New York
MICHAEL A. CARDOZO
COiporation Counsel of the
City ofNew York
Attorney for Respondent
100 Church Street
New York, New York 10007
(212) 788-1010

LEONARD KOERNER
Chief, Appeals Division
APPELLATE DIVISION OF THE SUPREME COURT
FIRST ruDICIAL DEPARTMENT
----------------------------------------------------------------------x
SERGIO HERNANDEZ,
Index No.: 106213/11
Petitioner-Respondent,
-against-
THE OFFICE OF TIIE MAYOR OF THE CITY OF NEW PRE-ARGUMENT
YORK, STATEMENT
Respondent-Appellant.
---------------------------------------------------------------------x
PLEASE TAKE NOTICE, that the Respondent-Appellant, for its pre-argument
statement, alleges as follows:
1. The full names of the original parties, and the names, addresses and
telephone numbers of counsel for the parties, are as set forth below:
Petitioner-Respondent:
Attorneys for
Petitioner-Respondent:
Respondent-Appellant:
Attorneys for
Respondent-Appellant:
SERGIO HERNANDEZ
Schlam Stone & Dolan LLP
th
26 Broadway, 19 Floor
New York, New York 10004
(212) 344-5400
THE OFFICE OF THE MAYOR OF THE CITY OF NEW
YORK
Michael A. Cardozo
Corporation Counsel of the City ofNew York
1 00 Church Street
New York, New York 10007
(212) 788-1010
2. In this proceeding commenced under Article 78 of the CPLR, Petitioner-
Respondent challenged the determination of the Respondent-Appellant to deny Petitioner-
Appellant access to documents requested pursuant to the New York Freedom of Information
Law, N.Y. Pub. Off. Law 84, et seq.
3. Appeal is taken from that portion of the Order and Judgment of Justice
Alice Schlesinger dated November 23, 2011 and entered in the office of the Clerk of New York
County on December 6, 2011, pursuant to which Justice Schlesinger found that the subject
documents were not exempt as inter-agency or intra-agency records under N.Y. Pub. Off. Law
86(3) and, on that basis, granted the Petition and directed Respondent-Appellant to release the
subject records.
4. The grounds for appeal are that the Court erred in finding that (i) Cathleen
P. Black was not acting as an agent of, or consUltant to, the City of New York or Mayor Michael
Bloomberg after she had been appointed to serve as Chancellor of the City school district but
prior to her that position; (ii) the nature of the communications contained in the
requested documents was not deliberative; and (iii) on these grounds that subject records were
not exempt as inter-agency or intra-agency records under N.Y. Off. Law 86(3).
Dated: New York, New York
December 7, 201 1
MICHAEL A. CARDOZO
Corporation Counsel of the City of New York
Attorney for Respondent-Appellant
100 Church Street
New York, New York 10007
(212) 788-1010
By:
Leonard Koerner
Chief, Appeals Division
2
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PRESENT:
ALICE
Index Number: 106213/2011
SERGIO
VS
OFFICE OF THE MAYOR
Sequence Number: 001
ARTICLE 78
. .

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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
----- -------------------- -------------X
In the Matter of the Application of
SERGIO HERNANDEZ,
For a Judgment Under. Article 78
Petitioner,
of the Civil Practice Law and Rules,
-against-
OFFICE OF THE MAYOR OF THE CITY OF
NEW YORK,
Respondent.
----- ---- ------ - - -- ------------- . --X
SCHLESINGER, J.:
Index No. 106213/11
Motion Sequence 001
This Article 78 proceeding involves the rights of the press and the public to
receive information regarding decisions made by our Mayor to fill high-level positions in
the New York City government. The case is of particular note in that it involves the
controversial hiring of Ms. Cathleen Black to serve New York City Schools
.. only with a waiver of the credentiallng requirements
and a position she held for only a brief period of time. It is also noteworthy in light of the
ongoing investigation by the New York City Public Advocate de Blasia into why the
City reportedly "fails so miserably to release even the most routine data requested
under the state's Freedom of Information Law. "
1
Background Facts
Petitioner Sergio Hernandez is a freelance journalist who currently reports for
ProPublica in New York City. At the time of the events at isstJe here, Mr. Hernandez
was reporting for The Village Voice and contributing to its blog "Runnin' Scared.''
1
See The New York Times Editorial "They Like Transparency, Until They Oon't, u
November 14, 2011.
NOV 2 8 20ff
lAS MOTION SUPPORT OFFICE
By e-mail dated November 19, 2010 addressed to ''A. Crowell" at City Hall, Mr.
Hernandez made a request for .. documents pursuant to the New York State Freedom of
lnfom1ation Law (FOIL), codified at 84 ef seq. of the New York State Public Officers
Law (POL) (Petition, Exh A). rn the e-mail, Mr. Hernandez ide.ntified himself as a
reporter affiliated with the Village Voice and indicated that he 'was making the request
'"as part of a effort and not for commercial use." He then requested
copies of the folfowJng materials:
messages sent from or received by any state
electronic mail accounts assigned to the Office of the
Mayor to or from an Individual named Cathleen
Prunty ucathie" Black or e-mail addresses containing
.the domafn hearst. com.
Mr. Hernandez emphasized that time was of the essence, and he urged City Hall to
promptly provide whatever reqords were "available immediately," with to follow
as they yvere located. He also reminded the City that it required to justify any
denials or deletions by reference to specific exemptions of the Law."
Despite the stated urgency of the November 19 request, the apparent
newsworthiness of the subject, ar:acf at least two. follow-up requests from Mr. Hernandez,
the Mayor's Office did not respond for approximately 60 days. Thill reaponse was lri the
fonn of a letter dated January 13, 2011 from Anthony W. Crowell, Counselor to the
Mayor, mailed to Mr. Hernandez (Exh B). In the letter, Mr. Crowell denied the FOIL
in its entirety, stating that:
Please be advised that we are withholding responsive
documents pursuant to Public Officers Law Section 87(2)(b),
which allows agencies to withhold Information that "if
disclosed would constitute an unwarranted Invasion of
personal privacy;" and Public Officers Law Section 87(2)(g),
which allows agencies to withhold uinter-agency and intra-
agency materials." .
2
In accordance with the instructions included at the end of Mr. Crowell's letter, Mr.
Hernandez immediately filed an appeal by e-mail dated January 19, 2011 addressed to
' .
Deputy Mayor Carol RoblesRoman, with a copy to Mr. Crowell (Exh C). After
recounting the details of his request and the procedural history, Mr. Hernandez argued
why the City's denial was "in error'' and contrary to the legislative policy favoring open
government. First arguing generally why disclosure was justified, Mr. Hernandez stated
as follows:
It should be emphasized that prior tp January 3, ZO 11, Ms.
Black was a private citizen employed by Hearst Corporation,
a privately-held media conglomerate based in New York
City. Since at least June 22; 2009, Hearst Corporation has
owned and controlled the Internet domain name
hearst. com" and e-mail accounts associated with that
domain. Because the initial reque$t was filed before Ms.
BI{;lck came under the city's employ, and because FOIL
applies only to records that exist when the request Is made,
Ms. Black was still a private citizen within the scope and
purpose of this request.
Mr. then went on to argue witt) specificity why the two claimed
exemptions were Inapplicable. With regard to the first claimed exemption based on
purported unwarranted Invasion of privacy/' he asserted (with a relevant to
Gould v New York City Police 89 NY2d 267, 275) that "blanket exemptions
for particular types of documents" were barred and that the law required the City to
disclose the documents with appropriate redactions. With regard to the second claimed
exemption based on documents exchanged between agencies or within an agency, he
asserted (with a relevant citation to POL 86, subd. 3) that communications between
the City and a privata citizen such as Ms. Black or the Hearst Corporation did not
qualify as either inter-agency or intra-agency materials.
3
Ms. Robles-Roman, Deputy Mayor for Legal Affairs, denied the appeal by letter
dated Janoary 26, 2011 (Exh D). Without addressing any of the arguments made by Mr.
Hernandez, Ms. Robles-Roman simply stated that she had "determined that Mr. Crowell
properly withheld these documents" pursuant to the exemptions stated In his letter. She
concluded by advising Mr. Hernandez of his right to challenge the determination via an
Articfe 78 proceeding. That is the proceeding b ~ f o r e this Court now.
Discussion
The purpose of the Freedom of Information Law is to "promote open government
and public accountability" with the. law imposing "a broad duty on government to make
its records available to the public." Tuck-It-Away Asspciates, L.P. v Empira State
Development Corp., 54 AD3d 154, 162(1
1
t Dep't 2008). affd 13 NY23d 882, quoting
MstterofGould v New York City Pollee. Df1pt., 69 NY2d 267, 274 (1996). Not only Is this
. .
principle firmly entrenched iri our judicial opinions, but the Legislature articulated it
clearfy and unequivocally when promulgating the statute, finnly declaring at Public
Officers Law 84 as follows:
The legrslature hereby finds that a free society is
maintalne.d when government is responsive and responsible
to the public, and when the public is aware of governmental
actions. The more open a government Is with its citizenry,
the greater the understanding and participation of the public
In government. ..
The people's right to know the process of governmental
declsion.making and to review the documents and statistics
leading to determinations is basic to our society. A-ccess to
such Jnformation should not be thwarted by shrouding it with
the cloak of seorecy or confidentiafity.
The le-gislature therefore declares that government is the
publiC
1
S busJness and that the pub1ic, individually and
collectively and represented by a free press
1
should have
access to the records of government in accordance with the
provisions of this article.
4
---
Consistent with this policy, the courts have routinely construed FOIL to mean
that all documents are "presumptively available tor revieW: unless they fall under one of
the limited exemptions set forth in POL 87(2). See
1
Tuck-It-Away, supra/ citing
of M. Farbman & Sons v New York City_Health & Hosps. Corp., 62 NY2d 75 (1984).
Further, the burden is on the government to establish that
the requested material"falls squarely within a
exemption by articulating a particularized and SP.eclfio
justification for denying access." Capital Newspap9rs Div of
Hoarst Corp. v Bums, 67 NY2d 562, 566 (1986).
The City in this case has wholly failed to apply either the policy declared by our
Legislature or the dictates of our Court of Appeals detailed above. The conclusory,
blanket denials do not satisfy the standard set by the law. What Is mare, a review of the
two claimed exemptions reveals that neither one applies.
A claimed "unwarranted invasion of personal privacy" does not pennit the
wholesale withholding of a document. Rather, POL 89{2), specifies a list of Identifying
details that the agency rnay redact when it makes records available. While the City may
redact uemployment hfstort' the e-malls presumably do not centain any
regarding that fssue. Quite the contrary, Ms. alack's employment history was a matter
of public record at the time of her appointment due to the need for a waiver of certain of
the credentialing requirements. The privacy exemption Is intended to apply to
information of a genuinely private nature only, [S.ee, New York Committee for
Occupational Ssfaty and v Bloomborg, 72 AD 3d 153, 160 (1'
1
Dep't 201 0)), and the
City has g'!Ven no Indication that the requested emails contain any such information.
5

What is more, a balancing of the potential privacy interests at stake against the
public interest in disclosure favors disclosure in this case with appropriate redactions.
Particularly instructive here is the First Department's decision in Kwas_nik v City of Naw
York, 262 AD2d 171 (1
1
Dep't 1999). There the APpellate Division affirmed the trial
court's direction to the City University of New York to disclose the public employment
history of certain employees who purportedly did meet the licensing requirement for
employment hired. The court stated: This result is supported by opinions of the
Committee on Open Government, to which the courts should defer , favoring
disclosure of public employees' resumes if only because pub employment Is, by dint
of FOIL itself, a matter of public record .... " 262 AD2d at 172 (citations omitted). In
applying the balancing test to the of the case, the court concluded that
uthe agency's need for Information would be great and the personal hardship of
disclosure small (see, Public Officers Law [2J[b][iv]}. /d.
Such is the case As Ms. Black did not meet the credentlallng requirements
for the all-important posftfon of School Chancellor, the public has right to know what
.
Information about her employment history and qualifications was disclosed In thee-
malls. Any Information of an Intensely personal natura could easily be
the balance of the Information disclosed. Indeed, despite Its earlier blanket denial of the
FOIL request on privacy grounds, the City's position in this litigation appears to be that
.
telephone numberS, cell phone numbers, and personal e-mail addresses should
be redacted, the remaining text of the a-mails is not exempt from disclosure on privacy
grounds. As petitioner does not dispute that such redactions are appropriate, they will
be allowed by this Court.
6
The City's second claimed exemption relating to inter-agency or intra-agency
records is particularly specious, as it by definition involves communications between or
within governmental agencies. POL 86(3). It is undisputed that Ms. Black and the
Hearst employees were private citizens at the time the subject e-mails were written.
Simply put, the statute offers no exemption for agency communications with private
citizens such as Ms. Black. Records that consist of communications wJth people
outside the agency must be disclosed. See, Miffer v NY State Dept. of Trans., 58 AD3d
981, (3
111
Dept 2009)(DOT's press releases and communications with people
.
outside the agency were not exempt as intra-agency documents).
Wholly devoid of merit is the City's claim that Cathleen Black and her staff were
agents of the City during the relevant time. The City argues that because the City had
an interest In addressing concerns by Commissioner Steiner about Ms. Black's
qualifications for the positiory of Chancellor, and because Black was providing
information to assist the Mayor in addressing those concerns, Ms. Black and her staff
were acting as de facto "agents" or as Nconsultants" tor the City . .
Neither the facts nor the law on agency support this argument As petitioner
-
correctly notes, as a mayoral nominee Ms. Black was not bound to act .on the Mayor's
bt;thalf, and the Mayor had no basis to exert control over Ms. Black before her
. .
appointment was confirmed. While Ms. Black may well have followed the Mayor's
guidance in order to assist her In receiving the appointment they both desired, and
while the of both parties may well have been served by obtaining the
infonnation needed to address Commissioner Steiner's concerns, those facts do not
constitute a principal-agent or relationship.
7
What is more, applying the exemption in a case such as this would not salVe the
policy be.hind the exemption. The obvious purpose of the exemption is to encourage
"people within an agency to exchange opinions, advice and criticism freely and frankly,
without the chilling prospect of public disclosure.'' Matter of York Times Co. v City
of NY Fire Dept. 4 NY2d 267, 176 (1996) However, communications with people
outside the agency are not considered part of the government's deliberative process,
and their disclosure will not inhibit decision-making within the government See Miller,
supra.
Here, the e-mafls presumably do not relate to the State Department's
actual deliberative process in deciding whether to grant Ms. Black the requested waiver.
Instead, they Involve efforts by the City to obtain information to prepare the waiver
request, complete the mayoral appointment process, and address community oonooms
'
about Ms. BlacJ<s qualifications for the position. Ms. Black was the appointee, and not a
In that process. Thus, no basis for the exemption .
Regarding petitioner's requ.est for attorney's fees, based on the papers eubmltted
to date and oral argument, the Court finds that the Interests of an parties would be
served by a conference to further address the issues raised.
Accordingly, it Is hereby
ADJUDGED that the petition is granted and ,respondent is directed to release the
subject records consistent with the terms of this decision within fifteen days of the date
of this decision: and It is further
8
: .. _--);
ORDERED that counsel for both parties shall appear before this Court in Room
222 on Wednesday, January 4, 2012 at 9;30 a.m. to further address the issue of
counsel fees.
Dated: NOV 2 3 2011
J.S.C.
ALICE SCHLESI .
...
...
9
l
'

~
Index 10621312011
SUPREME COURT OF 1BE STATE OF NEW YORK
COUNTY OF NEW YORK
In the Matter of the Application of
SERGIO HERNANDEZ,
Petitioner.
For a Judgment'Under Article 78 of the Civil Practiee
Law and Rules,
-against-
OFFICE OF 11IE MAYOR OF TilE CITY OF NEW YORK,
Respondent
ORDER AND JUDGMENT
MICHAEL A. CARDOZO
Corporation Counsel oftm City of New Y.ork
Attorney for !Wpontknt
100 Chwch Street
Ncw York, N.Y. 10007
Of Counsel Jeff Dantowitz
(212) 788-()939
Due and limely $ervice is mre/}y admitted
New Yol'k, N.Y ....................... - ................................................ , 2011
................... .................................................................................... Elq.
Attorney for ........................................................................................ ...
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-<Z
AFFIDAVIT OF SERVICE ON ATTORNEY BY MAIL
STATE OF NEW YORK, COUNTY OF NEW YORK, SS:
Stephanie Wright, be4lg duly sworn, deposes and says:
That on the ih day of December, 2011, she served the annexed Notice of Appeal
Upon: SCHLAM STONE & DOLAN LLP
Attorneys for Petitioner
26 Broadway, 19th Floor,
New York, New York 10004.
(212) 344-5400
being the address within the State theretofore designated by him/her for that purpose, by
depositing a copy of the same, enclosed in a prepaid wrapper in a post office box situated at 100
Church Street in the Borough of Manhattan, City of New York, regularly maintained by the
Government of the United States in said City.
to before me this
1- day of 201 1
SHARYN ROOTENBEftQ
Hofaly of N&w Yotk
No. 02HV:>U50475
Otulllffedi'1. New York county
1
u
Commls61on expire& Apr. 10,
Index No. 106213/11
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YOIU(
SERGIO HERNANDEZ,
For a Judgment Under Article 78
ofthe Civil Practice Law and Rules,
-against-
Petitioner,
THE OFFICE OF THE MAYOR OF THE CITY
OF NEW YORK,
Respondent.
NOTICE OF APPEAL
N.UCHAELA.CARDOZO
Corporation Counsel of the City of New York
Attorney for Respondent
100 Church Street
New York, N.Y. 10007
Of Counsel: Leonard Koerner
Tel: (212) 788-1010
Law Manager No. 201 J-016396
Due and timr!ly service is hereby admitted.
New York, N.Y. ....... , ..................................................... , 201 J
.................................................................................................. Esq.
Attorney for .................................................................................... ..
EXHIBITC
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
- - - - - - - - - - - - - - - - - - - ~ - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x
Application for a Judgment under Article 78 of the CPLR
and other relief,
SERGIO HERNANDEZ
Petitioner,
-against-
OFFICE OF THE MAYOR OF THE CITY OF NEW
YORK,
Respondent.
----------------------------------------------------------------------x
Index No. 106216/11
lAS Part 16
(Schlesinger, J.)
VERIFIED ANSWER
Respondent, by and through its attorney, Michael A. Cardozo, Corporation
Counsel for the City of New York, as and for its Answer to the Verified Petition herein, alleges
as follows:
1. Denies the allegations contained in paragraph 1 of the Petition, except
admits that Petitioner purports to proceed as set forth therein.
2. Denies the allegations contained in paragraph 2 of the Petition, except
admits that Petitioner purports to proceed as set forth therein.
3. Denies knowledge or information sufficient to form a belief as to the truth
of the allegations contained in paragraph 3 of the Petition.
4. Admits the allegations contained hi paragraph 4 of the Petition.
5. Denies the allegations contained in paragraph 5 of the Petition, except
admits that Petitioner purportedly sent an e-mai1 on November 19, 2010 to Anthony Crowell
requesting certain records, and respectfully refers the Court to the email annexed to the Petition
as Exhibit A, for a complete and accurate statement of its contents.
6. Admits the allegations contained in paragraph 6 of the Petition.
7. Denies the allegations contained in paragraph 7 of the Petition, except
admits that Petitioner purportedly sent an e-mail on January 19, 2011 to Deputy Mayor Carol
Robles-Roman purportedly appealing the denial of is FOIL request, and that Deputy Mayor
Robles-Roman denied the appeal by letter dated January 26, 2011, and respectfully refers the
Court to the email dated January 19, 2011 and letter dated letter January 26,2011, annexed to the
Petition as Exhibits C and D, respectively, for a complete and accurate statement of their
contents.
8. Denies the allegations contained in paragraph 8 of the Petition.
9. Makes no response to the allegations contained in paragraph 9 of the
Petition, insofar they assert legal conclusions. To the extent a response is required, Respondent
denies the allegations contained therein, and respectfully refers the Court to the statutes cited
therein for a complete and accurate statement of their provisions.
l 0. Make no response to the allegations contained in paragraph 10 of the
Petition, insofar they assert legal conclusions. To the extent a response is required, Respondent
denies the allegations contained therein, except admits that Respondent is located within New
York County, and that New York County is within the county in which the Respondent made the
determination complained of, and respectfully refers the Court to the statutes cited therein for a
complete and accurate statement of their provisions.
11. Denies the allegations contained in paragraph 11 of the Petition, except
admits that Petitioner purportedly sent an e-mail on November 19, 2010 to Anthony Crowell
-2 -
requesting certain records, and respectfully refers the Court to the email annexed to the Petition
as Exhibit A, for a complete and accurate statement of its contents.
12. Denies the allegations contained in paragraph 12 of the Petition, except
admits that Anthony Crowell sent a letter to Petitioner dated January 13, 2011, and respectfully
refers the Court to the letter annexed to the Petition as Exhibit B, for a complete and accurate
statement of its contents.
13. Denies the allegations contained in paragraph 13 of the Petition, except
admits that Petitioner purportedly sent an e-mail on January 19, 2011 to Deputy Mayor Carol
Robles-Roman, and respectfully refers the Court to that letter, annexed to the Petition as Exhibit
C, for a complete and accurate statement of its contents.
14. Denies the allegations contained in paragraph 14 of the Petition, except
admits that Deputy Mayor Robles-Roman sent Petitioner a letter dated January 26, 2011, and
respectfully refers the Court to that letter, annexed to the Petition as Exhibit D, for a complete
and accurate statement of its contents.
15. Repeats and realleges each and every response set forth in paragraphs 1
through 14 above as if set forth fulJy hereat.
16. Makes no response to the allegations contained in paragraph 16 of the
Petition, insofar they assert fegal conclusions. To the extent a response is required, Respondent
denies the alJegations contained therein, and respectfully refers the Court to New York's
Freedom of Information Law, N.Y. Public Officers Law 84, et seq. and the interpretive case
law thereunder, for a complete and accurate statement of their requirements.
17. Denies the allegations contained in paragraph 17 of the Petition.
18. Denies the allegations contained in paragraph 18 of the Petition.
19. Denies the allegations contained in paragraph 19 of the Petition.
20. Denies the allegations contained in paragraph 20 of the Petition.
21. Denies the allegations contained in paragraph 21 ofthe Petition.
22. Denies knowledge or information sufficient to form a belief as to the truth
of the allegations contained in p a r a g r ~ p h 22 of the Petition
23. Repeats and reaJleges each and every response set forth in paragraphs I
through 22 above as if set forth fully hereat.
24. Denies the allegations contained in paragraph 24 of the Petition.
25. Denies the allegations contained in paragraph 25 of the Petition.
26. Denies the allegations contained in paragraph 26 of the Petition.
27. Denies the allegations contained in paragraph 27 of the Petition.
AS AND FOR A STATEMENT OF MATERIAL AND PERTINENT FACTS
28. In early November 2010, Mayor Michael Bloomberg selected Cathleen P.
Black to be the Chancellor of the City school district, upon the pending resignation of the then-
serving Chancellor, Joel Klein.
29. On November 9, 2010, Mayor Bloomberg publicly announced that he had
selected Ms. Black to be the next Chancellor.
30. Ms. Black did not meet the eligibility requirements of Education Law
3003(1) for a superintendent certificate in that, although she possessed the requisite Bachelor of
Arts degree, she did not possess the graduate coursework or experience requirements.
31. Because Ms. Black did not meet the eligibility requirements and because
Ms. Black did not have any previous experience in the field of education, it was understood that
her selection, as with the selection of any individual to a high-level government position, would
- 4 -
be subject to scrutiny and debate. Additionally, in order for Ms. Black to serve as Chancellor,
she was required to obtain a School District Leader certificate from the New York State
Education Department pursuant to Education Law 3003(3).
32. By letter dated November I 7, 2010, Mayor Bloomberg wrote to the
Commissioner of Education of the New York State Education Department, requesting that he
provide Ms. Black a School District Leader certificate pursuant to Education Law 3003(3) and
8 N.Y.C.R.R. Part 80-3.10(b)(3)(iii).
33. After her selection in early November 2010, Ms. Black, City staff and
Hearst Corporation staff assigned to assist Ms. Black in her transition to City government were
required to communicate with one another in order to appropriately prepare the request to
Commissioner Steiner, respond to routine queries that are customary for high-level mayoral
appointees, and engage in outreach planning to the community to address concerns that had been
publicly raised regarding Ms. Black. Ms. Black was both directly communicating with as well as
copied on e-mails between these parties.
34. These emails included discussions concerning clarification of Ms. Black's
background, discussions related to proposed and actual contacts with various government
officials and other stakeholders regarding Ms. Black's selection, and drafts of the letter to be sent
to Commissioner Steiner requesting a School District Leader certificate for Ms. Black.
35. Upon information and belief, it was well-understood that the
communication and outreach efforts described above were to be coordinated through the Office
of the Mayor, and that Ms. Black and the staff assigned to assist her in her transition to City
government would be expected to participate in and support these efforts, as would any other
high-level mayoral appointee.
36. Indeed, the emails between the Office of the Mayor and Ms. Black
(whether directly or as a "cc") show that while Ms. Black and her staff was working in tandem
with the Office of the Mayor in pursuit of a common goal, she did not act independently, but
only on the advice and guidance from the Office of the Mayor.
37. On November 29, 2010, the New York State Education Department
granted Ms. Black the requested certificate allowing her to serve as Chancellor.
38. Ms. Black began serving as Chancellor on January 1, 2011.
39. By email dated November 19, 2011 sent to Anthony Crowell,
Respondent's Records Access Officer, but addressed to the Records Access Officer of the New
York State Education Department, Petitioner requested copies of "E-mail messages sent from or
received by any state electronic email accounts assigned to the Office of the Mayor to or from an
individual named Cathleen Prunty 'Cathie' Black or email addresses containing the domain
hearst.com" pursuant to the New York State Freedom ofinformation Law, Article 6 84, et seg.
By subsequent emails dated November 19, 2010, Petitioner clarified that his request was
intended for the Office of the Mayor, not the State Education Department. A copy of Petitioner's
emails of November 19, 2011 (the "FOIL Request") is annexed to the Petition as Exhibit A.
40. A number of responsive documents were located following a reasonably
diligent search of Respondent's records. Each of these were documents that Ms. Black either
sent to someone at City Hall, or on which she was a recipient, either directly or as a "cc." There
were no responsive documents located to senders or recipients at a "hearst.com" domain other
than those sent to or received from Ms. Black, as described herein.
- 6 -
41. Although Petitioner purportedly sent his FOIL request in order to gain
insight and information into the process by which Ms. Black was selected to be Chancellor, none
of the responsive documents deal with the selection process.
42. The responsive documents concern the efforts of Respondent and Ms.
Black to clarify and expound on Ms. Black's background to serve as Chancellor, to address
questions about her qualifications and to discuss steps to ensure the success of her candidacy.
43. These documents also contain the private cell phone numbers and email
addresses of certain government officials and other stakeholders, who were to be contacted in
furtherance of these objectives.
44. None of these documents contains (i) statistical or factual tabulations or
data; (ii) instructions to staff that affect the public; (iii) a final agency policy or determination or
(iv) external audits.
45. By letter to Petitioner d a t ~ d January 13, 2011 from Anthony Crowell,
Respondent denied Petitioner's FOIL request pursuant to N.Y. Public Officers Law 87(2)(b) on
the ground disclosure would constitute an unwarranted invasion of personal privacy, and
pursuant to N.Y. Public Officers Law 87(2)(g) on the ground that the requested records were
inter-agency or intra-agency materials. A copy of Mr. Crowell's letter of January 13, 2011 to
Petitioner is annexed to the Petition as Exhibit B.
46. By emails dated January 19, 2011 sent to Deputy Mayor Carol Robles-
Roman, Respondenfs Records Access Appeals Officer, Petitioner appealed the determination of
January 13, 2011 denying is FOIL request. A copy of Petitioner's emails dated January 19,
2011, without attachments, is annexed to the Petition as Exhibit C.
-7-
47. By letter to Petitioner dated January 26, 2011, Deputy Mayor Carol
Robles-Roman upheld the determination to deny Petitioner's FOIL request, finding that it was
proper to withhold the requested records pursuant to N.Y. Public Officers Law 87(2)(b) on the
ground disclosure would constitute an unwarranted invasion of personal privacy, and purs\.tant to
N.Y. Public Officers Law 87(2)(g) on the ground that the requested records were inter-agency
or intra-agency materials .. A copy of Deputy Mayor Robles-Roman's letter of January 26, 201 1
is annexed to the Petition as Exhibit D.
48. Petitioner commenced this proceeding on or about May 26, 201 1.
AS AND FOR A FIRST AFFIRMATIVE DEFENSE
49. The Petition fails to state a claim on which relief may be granted.
AS AND FOR A SECOND AFFIRMATIVE DEFENSE
50. Respondent fully complied with its statutory obligations.
AS AND FOR 'A THIRD AFFIRMATIVE DEFENSE
51. There is no basis for an award of costs and attorneys' fees.
- 8-
WHEREFORE, Respondent respectfully requests that the Petition be denied in
its entirety, and that it be awarded such other and further relief as this Court deems just and
proper.
Dated: New York, New York
July 21, 2011
TO: SCHLAM STONE & DOLAN LLP
Attorneys for Petitioner
26 Broadway, 19
1
h Floor
New York, New York 10004
(212) 344-5400
MICHAEL A. CARDOZO
Corporation Counsel for the City ofNew York
Attorney for Respondent
100 Church Street, Room 2-121
New York, NY 10007
(212) 788-0f39
i
- 9 -
VERIFICATION
STATE OF NEW YORK )
. SS.:
COUNTY OF NEW YORK )
ANTHONY CROWELL, being duly sworn, deposes and says that he is Counsel
to the Mayor; that he has read the foregoing Answer and knows the contents thereof, and that it
is true to his knowledge except as to the matters therein stated to be alleged upon infonnation
and belief, and as to those matters he believes them to be true; that the source of this infonnation
and the basis for his belief are the books and records of the Office of the Mayor and from
Sworn to before me this
21st day of July, 2011

Notary Public

NOtary Publ c.GE6l33390
No. 02 c ntv
auallned ln w 201.}
commission e.xplres
10 -
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE DIVISION: FIRST DEPARTMENT
SERGIO HERNANDEZ,
Petitioner-Respondent,
-against-
OFFICE OF THE MAYOR OF THE CITY OF NEW YORK,
Respondent-Appellant.
New York County Clerk's
Index No.: 106213/2011
NOTICE OF MOTION TO DISMISS APPEAL
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
[email protected]
Attorneys for Petitioner-Respondent
Sergio Hernandez