SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION : FIRST DEPARTMENT ---------------------------------------- x SERGIO HERNANDEZ, Petitioner-Respondent, -againstOFFICE

OF THE MAYOR OF THE CITY OF NEW YORK, Respondent-Appellant. --------------------------------------- x FRANCIS F. CAPUTO, an attorney duly admitted to practice before the Courts of the State of New York, affirms the following statements are true under penalty of perjury: 1. I am an attorney in the Appeals Division in the office of Michael A. Index No. 106213/2011 AFFIRMATION IN OPPOSITION

Cardozo, Corporation Counsel of the City of New York, and attorney for the appellant Office of the Mayor of the City of New York ( hereafter City). This affirmation is submitted based upon my review of the file maintained by this office for this case, and conversations with the attorney assigned to this case. This affirmation is submitted in opposition to the motion made by petitioner Sergio Hernandez, returnable March 8, 2012, to dismiss the appeal taken by the City in this matter, or, to vacate the automatic stay of the judgment imposed by CPLR 5519(a)1. For the following reasons, the motion should be denied in its entirety. 2. Petitioner made a request under FOIL in November, 2010 to receive e-

mails sent between the Mayors office and Cathleen Black or anyone else at Hearst Corporation covering the period after she had been named by the Mayor as the new schools Chancellor, but while she was seeking a waiver from the State and had not yet assumed the

duties of that position. The waiver was granted on November 26, 2010, and Ms. Black took office as Chancellor on January 2, 2011. 3. Petitioners FOIL request was denied on January 13, 2011, and that denial Petitioner

was upheld by the FOIL appeal officer by letter dated January 26, 2011.

commenced this Article 78 proceeding to review and annul that determination on May 26, 2011, at the very end of the four-month statute of limitations applicable to this Article 78 proceeding. The proceeding was decided by Justice Schlesinger by judgment of the Supreme Court, New York County, entered December 6, 2011. Justice Schlesinger granted the petition to the extent of ordering that the City release the subject records in accordance with the terms of her decision. 4. The City appealed from that judgment by notice of appeal dated December

7, 2011. This motion to dismiss the appeal or to vacate the 5519(a)1 statutory stay was then made on February 29, 2012. 5. At no time after judgment was entered and the appeal taken did petitioner

notify anyone in this office that she desired that the appeal be perfected by the June term. Petitioner does not claim that she made any such request. There have been many situations in my 36 years in the Appeals Division where attorneys have made such a demand or request for perfection of an appeal by a certain date and in almost all cases a mutually satisfactory schedule has been agreed upon. If petitioner had notified this office of her request in

December or even January, then this office might have been able to make the changes in assignments of cases necessary to accommodate the request. By making the motion to dismiss without warning on February 29, to order the City to perfect for the June term, petitioner gave this office a scant 19 days to complete the appeal. This is especially problematical for a busy

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governmental office like this where the Appeals Division has suffered a loss of five lawyers in recent months who were not replaced. 6. Petitioners citation to Rule 600.5(d) of the Rules of this Court, which

requires filing the Record on Appeal within 30 days after the notice of appeal is filed, is not a substitute for some notification before a motion like this is made. As this Court is well aware, most appeals perfected in this Court, whether by public offices or private litigants, are perfected well in excess of one month from the notice of appeal. 7. Petitioners assertion that he will suffer irreparable harm if he does not

immediately obtain the information he sought in his FOIL request is made in the affirmation of his attorney with a conclusory statement. Petitioners affidavit stating specific facts would have been necessary to establish such a claim. It is not a matter of indisputable fact that petitioner would suffer such irreparable harm. When the FOIL appeal officer denied

petitioners appeal, petitioner waited four months to commence the instant Article 78 proceeding, a period of delay which is inconsistent with his present claim that delay would cause him irreparable harm. 8. This appeal was taken in good faith and has substantial merit. Ms. Black

had been selected by the Mayor for the position of Chancellor of the Department of Education and was applying for a State waiver before she could assume that position because she did not meet certain eligibility requirements. Whether records of communications between the Mayor and his designee for such an important position are protected from disclosure, prevents a novel question under FOIL which deserves full consideration and briefing by the parties. 9. Petitioners alternative request to vacate the Citys statutory stay should

likewise be denied, for the same reasons discussed above, since to do so would obviously deny

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the City the opportunity to present its arguments to this Court. We do not oppose an order from this Court ordering this appeal to be perfected for the September, 2012 term. WHEREFORE, for the reasons stated, the motion should be denied in its entirety. Dated: New York, New York March 6, 2012

FRANCIS F. CAPUTO Deputy Chief, Appeals Division (212) 788-1055

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Index No. 106213/2011 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION : FIRST DEPARTMENT SERGIO HERNANDEZ, Petitioner-Respondent, -againstOFFICE OF THE MAYOR OF THE CITY OF NEW YORK, Respondent-Appellant.

AFFIRMATION IN OPPOSITION MICHAEL A. CARDOZO Corporation Counsel of the City of New York Attorney for Respondent-Appellant 100 Church Street New York, N.Y. 10007 Of Counsel: Francis Caputo Tel: (212) 788-1055
Due and timely service is hereby admitted. New York, N.Y. ............................................................. , 2012 .......................................................................................... Esq. Attorney for ..............................................................................