10-1336-cv
 Joseph v. HDMJ Restaurant, Inc.

                            UNITED STATES COURT OF APPEALS
                                FOR THE SECOND CIRCUIT

                                         SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS
GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S
LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH
THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC
DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

        At a stated term of the United States Court of Appeals for the Second Circuit, held at the
 Daniel Patrick Moynihan Courthouse, 500 Pearl Street, in the City of New York, on the 4th day
 of May, two thousand twelve.

 Present:
          ROBERT A. KATZMANN,
          PETER W. HALL,
                      Circuit Judges,
          BARBARA S. JONES,
                      District Judge.*
 ________________________________________________

 GERMELIA JOSEPH,

                   Plaintiff-Appellee,

                   v.                                               No. 10-1336-cv

 GEORGE ATHANASOPOULOS, GUS ATHANASOPOULOS,
 PETER ATHANASOPOULOS,

                   Defendants,

 HDMJ RESTAURANT, INC.,

                Defendant-Appellant.
 ________________________________________________

        *
           The Honorable Barbara S. Jones, of the United States District Court for the Southern
 District of New York, sitting by designation.
For Plaintiff-Appellee:                   STEPHEN N. PREZIOSI, Garden City, N.Y.

For Defendants-Appellees:                 DAVID S. FEATHER, Garden City, N.Y.


       Appeal from the United States District Court for the Eastern District of New York
(Seybert, J.).

       ON CONSIDERATION WHEREOF, it is hereby ORDERED, ADJUDGED, and

DECREED that this Court’s January 9, 2012 Order denying the motion of Defendant-Appellant

to withdraw the appeal is VACATED, the motion is GRANTED, the appeal is DISMISSED,

and the judgment is REMANDED to the district court for further proceedings.

       Defendant-Appellant HDMJ Restaurant, Inc. (“HDMJ”) sought interlocutory appeal of

an order of the United States District Court for the Eastern District of New York (Seybert, J.)

insofar as that order denied HDMJ’s motion to dismiss the claims of Plaintiff-Appellee Germelia

Joseph under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the

Americans with Disabilities Act of 1990, 42 U.S.C. § 12112 et seq. We presume the parties’

familiarity with the factual background underlying this case, the proceedings below, and the

issues on appeal.

       Concluding that our disposition on appeal turned dispositively on a significant and

unresolved issue of New York state law, on August 5, 2011, we certified the following question

to the New York Court of Appeals:

       When a plaintiff brings a discrimination claim before the New York State
       Division of Human Rights (“DHR”) and commences an untimely Article 78
       proceeding challenging the DHR’s adverse determination of that claim, does the
       state court’s dismissal of the Article 78 proceeding pursuant to the time
       limitations set forth in N.Y. Exec. Law § 298 amount to an adjudication “on the
       merits” for res judicata purposes, such that the plaintiff cannot litigate her claim
       in another jurisdiction with a longer, unexpired limitations period?

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Joseph v. HDMJ Restaurant, Inc., 

, 68 (2d Cir. 2011) (“Certification Opinion”). We

further ordered that “HDMJ shall bear all fees and costs that may be imposed by the New York

Court of Appeals in connection with this certification.” Id. On September 15, 2011, the New

York Court of Appeals accepted the certified question.

       On December 23, 2011, HDMJ filed a motion in this Court seeking to withdraw its

appeal. In support of the motion to withdraw, HDMJ’s counsel submitted an affirmation in

which he represented that “Appellant has no resources to continue to fund this appeal, and does

not wish to pursue it any further.” Affirmation of David S. Feather, dated December 23, 2011,

Dkt No. 43, ¶ 21. Joseph opposed the motion, arguing that our dismissal of the appeal would be

contrary to “the interests of judicial economy,” and alleging “upon information and belief” that,

in an effort to evade liability in connection with the instant case, HDMJ’s officers “now run the

same company with the same assets under a different corporate name.” Affirmation of Stephen

N. Preziosi, dated December 30, 2011, Dkt No. 52, ¶¶ 10, 17. We denied the motion, noting that

the “appeal ha[s] been certified to the New York Court of Appeals” and directing the Clerk of

the Court to “transmit a copy of th[e] order to the New York Court of Appeals so that it is aware

of the Appellant’s motion and our disposition and may take such further action as it deems

appropriate.” Joseph v. HDMJ Restaurant, Inc., No. 10-1366-cv, slip op. at 1-2 (2d Cir. Jan. 9,

2012). In response, by Order dated March 29, 2012, the New York Court of Appeals,

understandably, concluded that “[i]n light of appellant HDMJ’s unwillingness to participate in

this court on the certified question or to further prosecute the appeal in the Second Circuit . . .

any further consideration of this matter by this Court is not warranted.” Joseph v. HDMJ

Restaurant, Inc., No. 2012-158, slip op. at 2 (N.Y. March 29, 2012).

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       Under Rule 42 of the Federal Rules of Appellate Procedure, “[a]n appeal may be

dismissed on the appellant’s motion on terms agreed to by the parties or fixed by the court.”

Fed. R. App. P. 42(b). Here, our initial denial of HDMJ’s motion to withdraw the appeal was

premised on the unique context in which it arose. In particular, at the time we first considered

the motion, the New York Court of Appeals had, by accepting the certified question, agreed to

resolve the “significant and outcome-determinative” question of New York law raised by this

appeal. Joseph, 648 F.3d at 68. Accordingly, we concluded that to grant the motion to withdraw

the appeal while the certified question remained pending before the New York Court of Appeals

would be inconsistent with the same “principles of comity and federalism” that underlay our

decision to certify the question to that Court, Sealed v. Sealed, 

, 59 (2d Cir. 2003).

       The New York Court of Appeals has now declined certification, thereby removing the

premise of our initial denial of HDMJ’s motion to withdraw the appeal. As such, we reconsider

the motion, and, having done so, grant it, and dismiss the appeal. This dismissal is without

prejudice, and without the award of costs. See Overseas Cosmos, Inc. v. NR Vessel Corp., 

, 52 (2d Cir. 1998) (“Rule 42(b) does not include a general power of conditioning

dismissal on the appellant’s reimbursing the appellee for the latter’s expense of defending the

appeal . . . .”) (internal quotation marks omitted). In addition, this dismissal in no way reflects a

change in our disposition with regard to the certified question, which we continue to consider

unresolved under New York law. Finally, insofar as Joseph disputes the factual representations

contained in the December 23, 2011 Affirmation of HDMJ’s counsel, the district court is better

situated to resolve such factual disputes and, if appropriate, will have the opportunity to do so on

remand.


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       For the foregoing reasons, HDMJ’s motion to withdraw the appeal is GRANTED, the

appeal is DISMISSED without prejudice, and the judgment is REMANDED to the district court

for further proceedings.

                                         FOR THE COURT:
                                         CATHERINE O’HAGAN WOLFE, CLERK




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