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Notice of Motion to Dismiss Appeal (Hernandez)

Notice of Motion to Dismiss Appeal (Hernandez)

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Published by Sergio Hernandez

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Published by: Sergio Hernandez on May 03, 2013
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07/17/2015

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SUPREME COURT
OFTHE
STATE
OF
NEW YORKAPPELLATE DIVISION: FIRST DEPARTMENT
SERGIO HERNANDEZ,
Petitioner-Responden~
-against-
OFFICE OF THE MAYOR OF THE CITY OFNEW YORK,
Respondent-Appellant.
New
York County Clerk's
Index No.: 106213/2011
NOTICE
OF
MOTION
TO
DISMISS
APPEALPLEASE 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 at27 Madison Avenue, New York, New York 10010 on the __day
of
March, 2012,at 10o'clock A.M. in the forenoon
of
that day;
or
as soon thereafter as counsel may
be
heard, for anOrder dismissing this appeal taken
by
Respondent-Appellant appealing from the Order
of
theSupreme Court, New York County, and entered in the Office
of
theClerk
ofthe
Court, SupremeCourt, 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.
§
5530withinthe required timelimitset
by
Rule 600.5(d)
of
this Court, or vacating the automatic stay
of
theJudgment imposed
by
operation
of
CPLR 5519(a); and for such other and further relief as theCourt deems proper.
PLEASE TAKE
FURTHER NOTICE
thatanswering papers,
if
any, shall
be
served
by
hand delivery and electronic mail on Schlam Stone
&
Dolan LLP, attention: Elizabeth Wolstein,Esq. (ewolstein@schlamstone.com)
by
the close
of
businesson
March_,
2012.
 
Dated: New York, New YorkFebruary 29, 2012
BY
HAND
DELIVERY
TO:
ElizabethFreedman,Esq.By:
SCHLAM
STONE
&
DOLAN
LLP
ElizabethWolstein26 Broadway-19th FloorNew York, NewYork10004Telephone: (212)
344~5400
Facsimile: (212) 344-7677ewolstein@schlamstone.com
Attorneys
for
Petitioner-RespondentSergio Hernandez
Office
of
theCorporationCounsel
of
the City
of
NewYork
100Church StreetNew York,NewYork10007 efreedma@lawnyc.gov
Attorneys
for
Respondent-Appellant Office
of
he Mayor
of
he City
of
New
York
2
 
SUPREME COURT
OF THE
STATE OF NEW YORKAPPELLATE 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
In
dex No.: 106213/2011
AFFIRMATION
OF
ELIZABETH
WOLSTEIN
IN SUPPORT
OF
MOTION
TO
DISMISS APPEAL
ELIZABETH WOLSTEIN,
an attorney duly admittedto practice in the Courts
of
thisState, affirms the following to
be
true under penalty
of
perjury:I. I am a partner
at
Schlam Stone
&
Dolan LLP, attorneys for Petitioner-RespondentSergio 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
theMayor
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 setforth herein are based upon
my
personal knowledge.
2.
Due
to the urgent nature
of
the Motion,
Mr
.Hernandezrequests that the Court set the return date for a period shorter than the eight days specified in CPLR 2214(b
.
The Motion isurgent because itseeks, as alternative relief to dismissal
of
the appeal, that the Court direct theMayor's Office to perfect its appeal for the June 2012 Term, in which case the record
on
appealwould
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 tothe irreparable harm
Mr
.Hernandez,a journalist, has suffered as a result
of
the Mayor's Office'sdelay in perfecting its unmeritorious appeal.The time he has lostinnot being able to report on a

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