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Williston v. Feliz

January 24, 2006

GERTRUDE WILLISTON; AND TAWANA, LATOYA, AND TANDIKA CUMMINS, BY THEIR PARENT, PAULETTE CUMMINS, ON THEIR OWN BEHALF AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, PLAINTIFFS,
v.
JOSE FELIZ, ON HIS OWN BEHALF AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, PLAINTIFF-INTERVENORS
v.
VERNA EGGLESTON, AS COMMISSIONER OF THE NEW YORK CITY DEPARTMENT OF SOCIAL SERVICES; AND ROBERT DOAR, AS COMMISSIONER OF THE NEW YORK STATE OFFICE OF TEMPORARY AND DISABILITY ASSISTANCE, DEFENDANTS.



The opinion of the court was delivered by: Sweet, D.J.

OPINION

Defendant Verna Eggleston, Commissioner of the New York City Human Resources Administration ("City Defendant" or "Defendant"), has moved for leave to appeal, pursuant to 28 U.S.C. § 1292(b), from this Court's July 27, 2005 order and opinion ("Opinion") and for a concomitant stay of the underlying proceedings. For the reasons set forth below, Defendant's motions are denied.

Prior Proceedings

Plaintiffs filed their complaint on June 15, 2004, alleging that the State and City of New York have a policy and practice of failing to provide food stamps to eligible individuals in a timely manner and, as such, seek enforcement of their rights under the Food Stamp Act (the "FSA") pursuant to 42 U.S.C. § 1983. The City and State Defendants filed respective motions to dismiss, which were heard and marked fully submitted on November 10, 2004.

The Opinion, familiarity with which is assumed, denied City Defendant's motion to dismiss, rejecting City Defendant's argument that Plaintiffs did not have a private right of action under the FSA and thus lacked standing to bring suit. See Williston v. Eggleston, 379 F. Supp. 2d 561 (S.D.N.Y. 2005). The City seeks leave to appeal the Opinion as it pertains to the private right of action issue, asserting that the availability of a private right of action under the FSA is a purely legal question that currently remains unsettled under Second Circuit jurisprudence.

The motion for certification for leave to appeal and for the concomitant stay of the underlying proceedings was marked fully submitted on September 14, 2005.

Certification Is Denied

This Court has previously articulated the requirements for interlocutory review under 28 U.S.C. § 1292(b) as follows:

Title 28 United States Code section 1292 grants district courts discretion to issue interlocutory orders when an issue or issues involve "[1] controlling questions of law

[2] as to which there is substantial ground for difference of opinion and that [3] an immediate appeal from the order may materially advance the ultimate termination of the litigation." 28 U.S.C. § 1292(b); see SEC v. Credit Bancorp, Ltd., 103 F. Supp. 2d 223, 226 (S.D.N.Y. 2000). "The statute must be strictly construed and 'only exceptional circumstances [will] justify a departure from the basic policy of postponing appellate review until after the entry of a final judgment.'" Colon v. BIC USA, Inc., No. 00 Civ 3666 (SAS), 2001 WL 88230 at *2 (S.D.N.Y. Jan. 30, 2001) (quoting Klinghoffer v. S.N.C. Achille Lauro, 921 F.2d 21, 25 (2d Cir. 1990)).

Wausau Business Ins. Co. v. Turner Constr. Co., 151 F. Supp. 2d 488, 491 (S.D.N.Y. 2001). Courts interpreting this standard have maintained that "the 'question of law' must refer to a 'pure' question of law that the reviewing court 'could decide quickly and clearly without having to study the record.'" See Ahrenholz v. Board of Trustees of the University of Illinois, 219 F.3d 674, 676-77 (7th Cir. 2000), quoted in In re Worldcom, Inc., No. M-47 (HB), 2003 WL 21498904 (S.D.N.Y. June 23, 2003).

Courts in the Second Circuit and elsewhere have noted that certification is appropriate only in "exceptional cases," where interlocutory review "might avoid protracted and expensive litigation." Telectronics Proprietary, Ltd. v. Medtronic, Inc., 690 F. Supp. 170, 172 (S.D.N.Y. 1987). "Interlocutory appeal was not intended as a vehicle to provide early review of difficult rulings in hard cases . . . The benefit to the district court in avoiding an unnecessary trial must be weighed against the inefficiency of having the Court of Appeals hear multiple appeals in the same case." Wausau, 151 F. Supp. 2d at 492 (citing cases).

In addition, the party seeking an interlocutory appeal has the burden of showing "exceptional circumstances," see, e.g., Perera v. Cogan, 265 B.R. 32, 34 (S.D.N.Y. 2001); In re Alexander, 248 B.R. 478, 483 (S.D.N.Y. 2000); In re Ionosphere, 179 B.R. 24, 29 (S.D.N.Y. 1995), to overcome the "general aversion to piecemeal litigation," In re AroChem Corp., 176 F.3d 610, 619 (2d Cir. 1999), and to show that the circumstances warrant "a departure from the basic policy of postponing appellate review until after entry of ...


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