C. v. New York State and Local Retir

Filing 84

OPPOSITION TO MOTION to file supplemental appendix [67], on behalf of Appellee Central Islip Public Library, FILED. Service date 09/09/2011 by CM/ECF. [386386][84] [11-2215]

UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

-------------------------------------------------------------)(
MARYJOC.,
Plaintiff-Appellant,
-againstNEW YORK STATE AND LOCAL RETIRMENT
SYSTEM, CENTRAL ISLIP PUBLIC LIBRARY,

DocketNo.: 11-2215-cv
DECLARATION IN
OPPOSITION TO
PLAINTIFF'S-APPELLANT'S
MOTION TO FILE A
SUPPLMENTAL APPENDIJC

Defendants-Appellees.

-------------------------------------------------------------)(
HARRIS J. ZAKARIN, declares, pursuant to 28 U.S.C. § 1746, the

following to be true under penalties of perjury:
1.

I am a partner with the law firm of Rivkin Radler, LLP, attorneys for

defendant-appellee Central Islip Public Library (the "Library"). As such, I am
fully familiar with the facts and circumstances herein.
2.

This affirmation is submitted in opposition to the motion of plaintiff-

appellant Mary Jo C. ("plaintiff') to supplement the appendix to include the
minutes of a state administrative proceeding.
3.

Plaintiff commenced this action pursuant to Title II of the Americans

with Disabilities Act ("ADA") against the Library and against defendant-appellee
New York State and Local Retirement System (the "State Defendant"). Plaintiff

also asserted claims against the Library premised on New York State Executive
Law§ 296.
4.

As against the Library, plaintiff alleged that it failed to provide her

with a requested reasonable accommodation by refusing to file a disability
retirement application on her behalf and by denying her request to reclassifY the
termination ofher employment as a leave of absence.
5.

As against the State Defendant, plaintiff alleged that, despite the fact

that her disability retirement application was statutorily late, the State Defendant
should have provided her a reasonable accommodation by waiving the statutory
deadline.
6.

By notice of motion dated May 28, 2010, the Library moved, pursuant

to Rule 12 (b} (6) of the Federal Rules of Civil Procedure, to dismiss plaintiffs
complaint bas~d on her failure to state a claim upon which relief could be granted.
The State Defendant similarly moved.
7.

By opinion and order dated May 5, 2011, the District Court dismissed

plaintiffs complaint.
8.

In reaching its conclusion, the District Court found that, in the first

instance, plaintiffs complaint failed to sufficiently allege that she has a
"disability" within the meaning of the ADj\ and, as a result, her complaint failed to
state a cognizable claim under Title II of the ADA.

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9.

Recognizing that it would be possible for the plaintiff to amend her

Title II claims to sufficiently allege this element and also acknowledging that the
Library assumed that she was disabled for purposes of the motion, the District
Court addressed the merits of the motion and analyzed the issue substantively.
10.

After analyzing the issue, the District Court determined that Title I of

the ADA is the exclusive remedy for plaintiffs claims of discrimination against
the Library. As a result, plaintiffs claims, which were premised on violations of
Title II of the ADA, failed to state a claim upon which relief could be granted and
were dismisse4. As against the State Defendant, the District Court concluded that
the complaint hs against it required dismissal as it was barred by the doctrine of
sovereign immunity.
11.

Fallowing the entry of judgment dismissing plaintiffs complaint, she

appealed to this Court.
12.

Plaintiff now seeks to supplement the joint appendix to include the

minutes of a state administrative proceeding.
-~

THERE IS NO BASIS TO PERMIT THE FILING
OF A SUPPLEMENTAL APPENDIX CONTAINING
MATTERS THAT ARE OUTSIDE THE RECORD
ON APPEAL
13.

Plaintiff seeks to file a supplemental appendix to include the minutes

of a state administrative proceeding, maintaining that the minutes are subject to

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judicial notice and, therefore, may properly be included m a supplemental
appendix.
14.

Plaintiffs motion must be denied for several reasons.

15.

Initially, the minutes of the state administrative proceeding are not

part of the record on appeal. Pursuant to the Rules of this Court, "[t]he contents of
an appendix are limited to the materials set forth in FRAP 30(a)(1), except that the
appendix must'also include the notice of appeal or petition for review." Local Rule
30.1 (a) (emphasis added).
16.

Pursuant to FRAP 30 (a) (1), the contents of the appendix include:
(A) the relevant docket entries in the proceeding below;
(B) the relevant portions of the pleadings, charge, findings, or opinion;
(C) the judgment, order, or decision in question; and
(D) other parts ofthe record to which the parties wish to direct the
court's attention.

17.

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Thus, pursuant to Local Rule 30.1 (a) and FRAP 30 (a) (1), the

minutes of the state administrative proceeding do not fit within any category of
permissible contents of the appendix. As a result, plaintiffs motion to supplement
the appendix with this material should be denied.
18.

In addition, plaintiff impermissibly seeks to attach the minutes of the

state administrative hearing in an attempt to establish that she was disabled within
the meaning of the ADA. According to plaintiff, this Court can take judicial notice
of those minutes. As a general matter, a court "may rely on matters of public

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record in deciding a motion to dismiss under Rule 12 (b) (6)." Pani v. Empire Blue
Cross Blue Shield, 152 F.3d 67, 75 (1998), cert. denied, 525 U.S. 1103 (1999).
The rule regarding judicial notice, however, is not without its limitations.
19.

While a court may take judicial notice regarding the fact that

proceedings took place before another court or in a state administrative body, it
may not do so to establish "the truth of the matters asserted in the other litigation,
but rather to establish the fact of such litigation and related filings."

Global

Network Communications, Inc. v. City of New York, 458 F.3d 150, 157 (2d Cir.
2006).
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20.

Here, plaintiff seeks to have this Court take judicial notice of the state

administrative minutes not to establish the fact that the proceedings took place, but
rather in an attempt to utilize the testimony contained therein to establish that she
is disabled within the meaning of the ADA. Judicial notice is not permitted under
these circumstances and, as a result, the motion to file a supplemental appendix
containing the material sought to be judicially noticed should be denied.
21.

In, any event, even assuming that this Court can take judicial notice of

the minutes of'the state administrative proceedings, such a circumstance does not
otherwise permit the filing of a supplemental appendix. In fact, plaintiff has failed
to cite to a single precedent that would permit the filing of a supplemental
appendix for judicially noticed material.

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22.

Given the foregoing, plaintiffs motion should be denied m its

entirety.
WHEREFORE, it is respectfully requested that this Court deny plaintiffs
motion to file a supplemental appendix, together with such other, further and
different relief as this Court may deem just and proper.
Dated:

Uniondale, New York
September 9, 2011

HARRIS J. ZAKARIN (HJZ-8742)

2528830 vl

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