C. v. New York State and Local Retir

Filing 67

MOTION, to file supplemental appendix, on behalf of Appellant Mary Jo C., FILED. Service date 09/01/2011 by CM/ECF, US mail. [380970] [11-2215]

UNITED STATES COURT O F APPEALS FOR T H E SECOND CIRCUIT
Thurgood Marshall U.S. Courthouse 40 Foley Square, New York, NY 10007 Telephone: [phone]
MOTION INFORMATION STATEMENT
Docket Number@):
Motion for:

1 1 -22 15

Caption [use short title1

C.

Leave to File Supplemental Appendix

v.
New York State and Local Retirement

Set forth below precise, complete statement of relief sought:

Leave to file a supulemental appendix containing the
steno~raphic
minutes of an administrative proceeding of
which this Court may choose to take iudicial notice.

MOVING PARTY: Mary Jo C.
Plaintiff
AppellantfPetitioner

OPPOSING PARTY:

C Defendant
]
AppelleeIRespondent

MOVING ATTORNEY: Willlam Brooks

OPPOSING ATTORNEY: Eric Schneiderman
[name of attorney, with firm, address, phone number and e-mail]

Mental Disability Law Clinic, Touro Law Center
225 Eastview Drive
Central Islip, NY 11722
(63 1) 76 1-7086; Williamb(dZtourolaw.edu
Court-~udgel~gency
appealed from:

New York State Department of Law
120 Broadway
New York, NY 10271
(2 12) 4 16-6279; cecelia.chana@,a~.nv.nov

Eastern District of New York (Feuerstein, J.)

Please check appropriate boxes:
Has movant notified opposing counsel (required by Local Rule 27.1):
Yes
No (explain):

1

N.Y. State and Local Retirment System

u

FOR EMERGENCY MOTIONS, MOTIONS FOR STAYS AND
INJUNCTIONS PENDING APPEAL:
Has request for relief been made below?
yes
Has this relief been previously sought in this Court?
Yes
Requested return date and explanation of emergency:

1NO

Opposing counsel's position on motion:
Unopposed m ~ ~ ~ o Is e ~d n ' Know
Zf o t
Does opposing counsel intend to file a response:
Yes
NO m ~ o n ' Know
t
Is oral argument on motion requested?

el Yes

Has argument date of appeal been set?

Yes

Date:

911111

No (requests for oral argument will not necessarily be granted)
No If yes, enter date:

Has senice been effected?

Yes

No [Attach proof of service]

ORDER
IT IS HEREBY ORDERED THAT the motion is GRANTED DENIED.
FOR THE COURT:
CATHERINE O'HAGAN WOLFE, Clerk of Court
Date:

Form T-1080

By:

No

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
Thurgood Marshall U.S. Courthouse 40 Foley Square, New York, NY 10007 Telephone: [phone]
MOTION INFORMATION STATEMENT
Docket Number@): 1 1-22 15
Motion for:

Caption fuse short title]

C.

Leave to File Supplemental Appendix

v.
New York State and Local Retirement

Set forth below precise, complete statement of relief sought:

Leave to file a supplemental apuendix contain in^ the
stenographic minutes of an administrative proceeding of
which this Court may choose to take iudicial notice.

MOVING PARTY: Mary Jo C.
Plaintiff
AppellanVPetitioner

OPPOSING PARTY:

rn

MOVING ATTORNEY: William Brooks

OPPOSING ATTORNEY: Harris Zakarin
[name of attorney, with finq address, phone number and e-mail]

Mental Disability Law Clinic, Touro Law Center
225 Eastview Drive
Central Islip, NY 11722
(63 1) 761-7086; [e-mail]
Court-~udge/Agency
appealed from:

Central Islip Public Library

Defendant
AppelleeRespondent

Rivkin Radler LLP
926RXR Plaza
Uniondale, NY 1 1 556
(5 16) 357-3000; harris.zakarin@,rivkin.com

Eastern District of New York (Feuerstein, J.)

Please check appropriate boxes:
Has movant notified opposing counsel (required by Local Rule 27.1):
Yes
No (explain):

a

FOR EMERGENCY MOTIONS, MOTIONS FOR STAYS AND
INJUNCTIONS PENDING APPEAL:
Has request for relief been made below?
yes
Has this relief been previously sought in this Court?
Yes
Requested return date and explanation of emergency:

Opposing counsel's position on motion:
63 Unopposed a ~ ~ ~ o ns ~eo dn ' Know
t
Does opposing counsel intend to file a response:
&j Yes No ODon't Know
Is oral argument on motion requested?

Cf Yes

Has argument date of appeal been set?

Yes

Date:

No (requests for oral argument will not necessarily be granted)

fl No

911/ 1 1

If yes, enter date:

Has service been effected?

Yes

No [Attach proof of service]

ORDER
IT IS HEREBY ORDERED THAT the motion is GRANTED DENIED.
FOR THE COURT:
CATHERINE O'HAGAN WOLFE. Clerk of Court
Date:

Form T-1080

By:

NO

No

UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
..............................

-X

MARY JO C.
Plaintiff-Appellant,
DECLARATION
Docket No. 11-2215
NEW YORK STATE AND LOCAL
RETIREMENT SYSTEM,
CENTRAL ISLIP PUBLIC LIBRARY,
Defendants-Appellees.

WILLIAM M. BROOKS, certifies the truth of the
following pursuant to 28 U.S.C.

1.

§

1746:

I am the attorney for plaintiff-appellant Mary Jo

C. and submit this declaration in support the appellant's
motion for leave to file a supplemental appendix consisting
of the minutes of a state administrative proceeding
relevant to this lawsuit.
2.

This appeal is an action under the Americans with

Disabilities Act ("ADA"), in which the appellant seeks,
inter alia, an accommodation in the form of a waiver of the
three-month period for filing disability retirement claims.

3.

~t the court below appellee New York State and

Local Retirement System ("NYSLRS")argued that it was
protected by Eleventh Amendment immunity.

In resolving

this issue, the district court applied United States v.

Georgia, 546 U.S. 151 (2006), which required the district
court to determine, inter alia, whether NYSLRS violated the
ADA.

Docket Entry 33 at 13. This in turn required the

court to determine whether the appellant was disabled under
the ADA.
disabled.
4.

The court held that the appellant was not

Id. at 14.
As NYSLRS moved pursuant to Rule 12 (b)(I), the

appellant was entitled to submit documentation beyond the
pleadings relating to the issue of disability.

See LeBlanc

v. Cleveland, 198 F.3d 353, 356 (2d Cir. 1999). However,
as neither defendant argued below that the plaintiff failed
to allege that she was not disabled, the plaintiff did not
make any additional factual submissions.
5.

However, on this appeal, this Court may consider

matters of which it can take judicial notice. Allen v.

Westpoint-Pepperell, Inc., 945 F.2d 40, 44 (2d Cir. 1991) .
Furthermore, authority exists for this Court taking
judicial notice of state administrative procedures.

Mack

v. South Bay Beer Distribs., 798 F.2d 1279, 1282 (gth
Cir.
1986); Thomas v. Westchester County Care Corp., 232 F.
Supp. 2d 273, 276 (S.D.N.Y.2002).
6.

Appellant Mary Jo C. was a party to a state

administrative proceeding in which she argued that she was
entitled to the accommodation to which she has asserted in

this lawsuit she is entitled, the waiver of the three-month
filing period.

7.

Accordingly, the appellant seeks leave to file as

a supplemental appendix the minutes of the state
administrative proceeding.

8.

Leave to file the supplemental appendix will not

prejudice the appellees in any way as they remain free, if
they choose, to argue that this Court should not consider
the material.

9.

On the other hand, if this Court chooses to take

judicial notice of the administrative hearing, the
supplemental appendix simply serves as a mode of
convenience for this Court to assess information set forth
in the administrative proceeding and to which the appellant
referenced in her brief.
WHEREFORE, I respectfully request that this Court
grant leave to the appellant to file a supplemental
appendix that consists of the minutes of an administrative
proceeding of which this Court can, and may choose to, take
judicial notice.
Dated: Central Islip, New York
September 1, 2011
WILLIAM M. BROOKS

/

UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
.....................................

X

MARY JO C.
Plaintiff-Appellant,

NEW YORK STATE AND LOCAL
RETIREMENT SYSTEM,
CENTRAL ISLIP PUBLIC LIBRARY,

Docket No. 11-2215

Defendants-Appellees.

CERTIFICATE OF SERVICE
I, William Brooks. Certify the truth of the following
pursuant to 28 U.S.C.

§

1746:

On September 1, 2011, I served a copy of the motion for
leave to file a supplemental appendix on the New York State
Department of Law, attorney for NYSLRS, by first class mail, by
affixing proper postage and mailing to 120 Broadway, New York,
NY 10271, Attn Cecelia Chang.

I also served a copy of the

motion on ~ i v k i n
Radler,LLP, attorney for the Central Islip
public Library by the same method and mailing to

926 RXR Plaza,

Uniondale, NY 11566-0926, Attn Harris Zakarin.
Dated:

Central Islip, New York
September 1, 2011

-

W I L L I ~ BROOKS
M.