Thursday, October 27, 2011

SCOPE helps pay the way again!

Ken & Stephen,

First, I want the extend a huge "Thank You!!" to you both, to the BoD of S.C.O.P.E., and to the membership, for their support and backing of this lawsuit, from the start. This little case, budded by me as, "The little case that could...," has turned into a major precedent, for Penal Code 400, in New York State.

 The case, Chwick v. Mulvey, 81 A.D.3d 161, 915 N.Y.S.2d 578 (2nd Dept. 2010), started, as you know, as a pro se case in N.Y. Supreme Court, with Tom Fess, Edward Botsch and myself as petitioners. At the trial level, we were denied our claims. Needless to say, as this court's ruling can be read at, Judge Davis, and his staff, came to very wrong conclusion about New York State preemption.
The lawsuit was then appealed to the New York State Appellate Division, Second Department, and with the excellent skills of Mr. Robert Firriolo, Esq., of Duane Morris LLC, his oral argument won on the appeal. Go to to hear the oral argument from 04/09/2011. The appellate court, viewing this from a state point of view, ruled, in our favor, with a 4-0, 12-page ruling (no dissents). Read the appellate court ruling at

 Now, normally, a ruling has downward jurisdiction, meaning that the trial courts served by the Second Department are bound by the ruling. But, as Mr. Firriolo found, there is case law that makes our precedent a statewide jurisdiction.

You see, New York State Appellate Division is a single State-wide court divided into departments for administrative convenience, not for judicial separation (see Waldo v Schmidt, 200 NY 199, 202). And, as long as there are no other contrary decisions from another Department, and there are none at this time, under the legal doctrine of stare decisis, all the trail courts, under the New York Supreme Court, Appellate Division, are required to follow precedents set by the Appellate Division of another department until the New York Court of Appeals or the Appellate Division pronounces a contrary rule (see, e.g., Kirby v Rouselle Corp., 108 Misc 2d 291, 296; Matter of Bonesteel, 38 Misc 2d 219, 222, 16 AD2d 324; 1 Carmody-Wait 2d, NY Prac, § 2:63, p 75).

This is a general principle of appellate procedure (see, e.g., Auto Equity Sales v Superior Ct. of Santa Clara County, 57 Cal 2d 450, 455; Chapman v Pinellas County, 423 So 2d 578, 580 [Fla App]; People v Foote, 104 Ill App 3d 581), and it is necessary to maintain uniformity and consistency (see Lee v Consolidated Edison Co., 98 Misc 2d 304, 306). Consequently, any cases holding to the contrary (see, e.g., People v Waterman, 122 Misc 2d 489, 495, n 2) are disapproved.

So, this "Little case the could...," becomes the the "Little case that does...," as its precedent is binding across the whole state. As to how this becomes valuable, that is is the hands of fine lawyers who need a strong case in a preemption suit.

Again, I thank all of S.C.O.P.E. for their continued support.

Alan Chwick

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