Dywinski v. State Of New York (SAFE Act Challenge)

Lancelot,

No hard feelings!

Look, as you are an attorney, I'm sure you could understand that there are some things, particularly with respect to strategy, that can truly be considered monumental, but you wouldn't necessarily want to discuss that strategy on a public forum. I'm not trying to keep you out of the loop or put you off in any way.

there has been another attorney, going around, attempting to discredit the lawsuit and bad-mouthing my father. That man is my hero, and I'm not going to let anyone discredit his good name.

Now with that being said, sure, let's start over.

I have to go right now, but I'll be back in a little while. I'll explain the public aspect of the case, why we think this is monumental, and you can reach your own conclusion. Of course, you're free to disagree. But, in the final analysis, we're all on the same side here. We have all, at least those of us in New York, been stripped of our civil rights. We believe we have a very good chance of securing back those rights which have been taken from us.

I'm sorry if I said anything that may have personally offended you, or hurt your feelings in any way. I sure didn't intend for that.
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I've got a thick skin so no worries. And yes, we are all on the same side, including non New Yorkers, because they are spreading.

And so that we're clear, you better not go beyond the public aspect of a case with someone with an 8 post count. If you tried that, I'd get my own gag order against you. :D

Seriously though, from my end I saw some posts that I saw as giving false hope on aspects of the proceeding that are fairly routine, while ignoring the bigger picture.

With that being said, let me see if I can sum up what can be said publicly and where the confusion arises, not to fight but to make whatever updates you post clearer.

1) Both cases are Article 78 proceedings.
2) Article 78 Proceedings are special proceedings which by definition, are fast tracked.
3) Discovery and motion practice is limited in an Art 78 (this is where I think the confusion arose over the OSC)
4) You got an OSC in an Art 78, which is rare. Outside a 78, its common.
5) An OSC is a motion, but its also an order.

So the OSC is big because its part of the Art 78, that's my take on what you're saying.

Do you mind if I ask if you're a lawyer too?

And finally, I will stipulate that you're a fighter. Man, you came back like a coiled snake. :eek:
 
After reading the above exchange, I (as a non-New Yorker) have some mild concerns that Max is perhaps broadcasting more of the thought processes behind the cases than is perhaps wise, at least on an open forum. A good poker player never lets the other players in the game know what he's holding -- which, to me, in s legal matter translates to what (and how) he's thinking.
 
That's all pretty much public information, but if it worries you, I'll redact that and send it in a pm.
 
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PM received and responded. Thanks for clarifying a few things. Hopefully my PM will put what I said in better context.

So, where do I pick up the award for the most memorable entry to forum. :p
 
So if we "win" an injunction in this, the lowest court in NY, how does the appeal of the injunction go?

Does the injunction gets stayed pending the appeal, meaning the law goes forward?

Thanks from those of us unfamiliar with law in general and esp NY law
 
Lowest court in NY?!

This is the State Supreme Court.
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Supreme Court is the lowest court in New York. Its a holdover from colonial days where it was the Supreme Court for the County.

There are 62 counties in NY, meaning there are 62 Supreme Courts.

Efforts to change this are often opposed by the trial judges, who like being called Supreme Court Justices of New York. They get more cookies when they attend out of state judge conventions.
 
Lowest court in NY?!

This is the State Supreme Court.
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Confusing, isn't it? Not being from New York, I can't always keep them straight, but I think it works like this:

In New York "Supreme Court" is the trial-level court of general jurisdiction in the state court system. It is one of several courts that are "Superior Courts" The first level of appeal from Superior (Supreme) court is the Supreme Court, Appellate Terms and above that is the Supreme Court, Appellate Division. At the top, the New York State Court of Appeals.

(At this point, I'm not sure which court is hearing these cases.)
 
All Special Proceedings originate in the NYS Supreme Court. They are then appealed to an intermediate court of appeals, known as the Appellate Division, which are divided by geographical region, called departments. There are four departments in New York. Western New York is under the Fourth Department Appellate Division. The final court of appeals is the New York State Court of Appeals in Albany. After the Court of Appeals comes a Petition for Certiorari to the U.S. Supreme Court.
 
So, how does it work? If we "win" an injunction, I'm assuming the other side can appeal all the way up the ladder, correct?

While their appeal is working through the system, what happens to our injunction? Are they granted an injunction against our injunction, meaning the law goes into effect, or is our injunction still in effect during the appeals process?

Gimme them details! :D
 
I'll freely admit that I'm not a NY attorney, but operating on general principles, it should go something like this:
  1. Plaintiff files Complaint and request for TRO &/or injunction
  2. If Plaintiff wins, Court enters TRO/injunction
  3. Defendant(s) appeal, and file a motion to stay the injunction (allowing state to continue enforcing law) pending outcome of appeal
  4. Trial court decided whether to stay injunction.

If the Court issues the injunction, my gut reaction is that it is unlikely that the stay will be granted. I say that because denying a stay (leaving injunction in place) just leaves everyone in the same position that they would be, had the law never been passed. OTOH, if the stay is granted, everyone goes forward, with the risk being that the injunction will be upheld on appeal, and there's a risk that lots of stuff will have to just be undone if the Plaintiffs ultimately prevail.
 
This case is filed by a man named Bob Schulz. Bob is not an attorney, and cannot represent clients. That said, there are interesting issues in the case that are being followed closely.
 
If the Court issues the injunction, my gut reaction is that it is unlikely that the stay will be granted. I say that because denying a stay (leaving injunction in place) just leaves everyone in the same position that they would be, had the law never been passed.
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The consensus among the attorneys here is identical with Spats. Judges typically don't like to stay their orders pending appeal around here.
 
A restraining order that does not change the existing status quo is not likely to be stayed, so a retraining order here, invalidating the new laws but leaving the original NY laws in effect, is a good "no stay" case. By contrast, in Wollard, the injuction barred the Md. "may issue" law, and would have resulted in a massive change in the status quo. The trial court refused to stay his ruling, but the Court of Appeals did; and although it set the case for expedited briefing, and the case has been argued, no decision has yet been issued and the stay remains in effect.
That said, i am not sure that a TRO is an appealable order, although perhaps a petition for writ of mandate would lie. The TRO is just the first step--there still has to be a trial and a determination by the court that the law is invalid, resulting in a permanent injuction (which is an appealable order). A TRO here doesn't mean that much, except that the SAFE law will be delayed until the litigation is concluded.
 
What is important is that it will snag up the law and slow it down.

Also it may even be that even a liberal judge may have an issue with a law being passed on the grounds it was an emergency when it obviously was not. And that there is clear evidence that the legislators never took the time to read the bill thourougly enough to know what they were going pass. i.e. did not know it would affect police, or transportation of guns.

That would be an abuse of legislative and executive powers.

There was clearly no representation of the people in that only a few inquisitive people even knew they were passing the legislation and had no time to notify their lawmakers of what they thought of it. I have friend in New York who knew absolutely nothing until it read it in the paper a few days after it had been signed by Cuomo.
 
The feigned need for speed in passing this was atrocious. I learned of it the hour it was going to vote in the state senate. My senator, who absolutely opposes it, was doing his Army reserve time in VA and did not even have the opportunity to comment about it let alone vote.
 
@max.....

Is this true from the SAFE act:
N.Y. PEN. LAW § 265.03
A person is guilty of criminal possession of a weapon in the second
degree when:
(1) with intent to use the same unlawfully against another, such
person:
(a) possesses a machine-gun; or
(b) possesses a loaded firearm; or
(c) possesses a disguised gun; or
(2) such person possesses five or more firearms; or
(3) such person possesses any loaded firearm.
Such possession shall not, except as provided in subdivision one or seven of section 265.02 of
this article, constitute a violation of this subdivision if such possession takes place in such person's home or place of business.
Criminal possession of a weapon in the second degree is a class C felony.
N.Y. PEN. LAW § 265.04
A person is guilty of criminal possession of a weapon in the first
degree when such person:
(1) possesses any explosive substance with intent to use the same
unlawfully against the person or property of another; or
(2) possesses ten or more firearms.

Owning 5 or more is a felony???
 
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