The Second Circuit, in a decision by retired Justice Sandra Day O'Connor, has certified a question to the New York State Court of Appeals, in a case involving New York's gun licensing rules. The case involved an individual who was denied a gun license because he was not domiciled in New York; he merely had a vacation home in the State. The relevant statute was understood to require a domicile in New York. The individual brought an action, asserting that to the extent that the gun licensing statute prevented him from having a license, it was unconstitutional. The District Court granted summary judgment to the State, dismissing the action. On appeal, the Second Circuit declined to rule and certified the following question to the New York State Court of Appeals:
Is an applicant who owns a part-time residence in New York but makes his permanent domicile elsewhere eligible for a New York handgun license in the city or county where his part-time residence is located?
The decision in Osterweil v. Bartlett can be found here.
This is Sanford Hausler's blog about the United States Court of Appeals for the Second Circuit and its opinions. Nothing in this blog constitutes legal advice. But feel free to contact me at shausler at justice.com if you need help with an appeal either in the Second Circuit or in the New York appellate courts.
Wednesday, January 30, 2013
Friday, January 25, 2013
Strict Compliance
The Second Circuit overturned a District Court decision that allowed a party to file a late notice of appeal. The ECF staff had failed to update the party's attorney's e-mail address and, accordingly, the party did not receive notice of entry of a judgment against his client. The District Court held that this was excusable neglect, warranting an opportunity to file a late notice. The Second Circuit reversed.
The Court noted that it was the responsibility of the attorney to update the system in the ECF system and not the responsibility of the ECF stafff. Hence, the failure to receive notice was solely the fault of the attorney, and the District Court has abused its discretion in extending the party's time to file a notice of appeal.
Judge Lynch dissented from the decision, stating the the Court should have deferred to the judgment of the District Court.
The decision in In re Worldcom, Inc. (Communications Network International, Ltd. v. MCI WorldCom Communications can be found here.
The Court noted that it was the responsibility of the attorney to update the system in the ECF system and not the responsibility of the ECF stafff. Hence, the failure to receive notice was solely the fault of the attorney, and the District Court has abused its discretion in extending the party's time to file a notice of appeal.
Judge Lynch dissented from the decision, stating the the Court should have deferred to the judgment of the District Court.
The decision in In re Worldcom, Inc. (Communications Network International, Ltd. v. MCI WorldCom Communications can be found here.
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