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Okslen Acupuncture, P.C. ex rel Zuppa v. NYJune 29, 2011

Matter of Okslen Acupuncture, P.C. v Cuomo

Poor Zuppa.  He is on this quest to make the DOI enforce New York State law, and the First Department seems to think he is off his rocker.  The man is on a mission, similar to “Sun”, and neither can seem to make it out of the starting gate.  Perhaps a DJ action seeking a permanent injunction against the NCIB would have been the better way to get this before the Court?  I am not suggesting that there is any merit, or a lack of merit to Zuppa’s quest.  I am just watching this from the outside looking in and shaking my head.

By the way – note the new category this post is under.

8 Responses

  1. Raymond Zuppa says:

    A statute says that an agency “shall” do something — all the Court of Appeals precedent holds that this means that it is mandatory — it must do it.

    All of a sudden the Court adopts the A.G.s “shall means jurisdicitional” argument. The Court cited to one App Term case that did not even address the issue before the court with the qualifier “for e.g.” — and then listed the above case. For example usually means you’ll list a few cases. Not just one case that doesn’t even address the issue before the Court.

    The Court says I did not show them anything to the contrary. Meanwhile I cited to a host of cases wherein it is stated that the statute must be given its fullest application such that the evils of unlicensed investigators can be remedied. The multiple decisions discuss the legislative history of the statute — how the statute was drafted to stop unlicensed investigations which cause irreperable harm to the public. The statute was drafted to end the practice of unlicensed investigations which are inherently evil and malicious. The statute must be pressed to its fullest extent in order to protect the public from unlicensed investigations.

    That is why the statute says that unlicensed investigations are a B Misdemeanor and that the Attorney General “shall prosecute.”

    “Shall” fits in perfectly with the intent of the legislature and the word — no matter what — is unanimously held to be mandatory in nature by Court of Appeals precedent unless the outcome is totally ridiculous.

    As demonstrated the outcome of having the AG stop unlicensed investigations is perfect.

    I was right. The Article 78 route was correct. The Court will throw the suit out anyway it is brought because the Court is not going to mess with insurance companies on a grand scale and the A.G. or the Superintendent.

    Meanwhile these decisions are exposing the fact that New York now only has two branches of government. The excutive and the Judicial. If the legislature passes a law that says you shall do this. The executive branch need not obey even though the legislature is the “will of the people.” And when the executive fails to listen to the will of the People the Court’s back up the executive by failing to enforce laws.

    A Judicial System that does not uphold the law is lawless. A Court that fails to protect its citizens is a useless damaging waste of resources.

    And if you view the documents which were submitted in such a method as to make them proof in admissible form the AG and the NICB are tied at the hip and cross promote each other.

    I simply am giving the Courts enough rope to hang themselves and we’ll see what the legislature says under full court press when they know that the courts and executive ignore both the legislature and the will of the people.

    We’re only halfway through day 1 at Gettysburg here. We got 2 and a half days left.

  2. Sun says:

    Misery loves company, but in this instance, I support the Zuppa.

  3. Larry Rogak says:

    I don’t pretend to know much about criminal law, but my impression is that the decision to prosecute is always at the discretion of the prosecutor.

    I’ve come to the conclusion that, just like news reporters pick and choose which stories are newsworthy, prosecutors decide for themselves which crimes they will prosecute.

  4. Sun says:

    Prosecutorial descretion fails when everyone has their hand out.

    I’ve been in litigation since 1991 and I see the progressive slide downhill. The failure to due process has gone in lockstep with the rise in earnings of the ultra wealthy in relation to the middle class.

    When successive Presidents fail to abide by the rule of law, when members of the SCOTUS are hopelessly conflicted, when the President directs the DOJ to fail to prosecute Sub Prime felons, the standard is set, the hat is tipped.

  5. Kurt Lundgren says:

    Well said Sun, well said.

  6. Larry Rogak says:

    @Sun: Although I don’t disagree with the general premise of your post, I am an avid reader of American history, and I have found that the same sentiments have been repeated during numerous eras. The names and particulars change, but the general theme remains the same: crooks get away with murder, the working man gets fleeced, politicians line their pockets, judges are either corrupt or indifferent. It’s nothing new — which is cold comfort.

  7. raymond Zuppa says:

    I am in lock step with Sun’s comment.

    Larry prosecutorial discretion is far from absolute. What I tried to get into the Court’s head; and I am sure I did –hence the evasively short decision and incorrect citation –is that the District Attorney’s deal with statutes that simply define the elements of a crime.

    However when you have a statute that states: “criminal violations shall be prosecuted by the Attorney general” — that is mandatory order from the legislature that must be obeyed.

    I already discussed the history behind the statute. Read my brief and you’ll see that I listed a number of statutes wherein it said the Attorney General may prosecute and statutes that said the “Attorney General shall prosecute.”

    The point is the legislature knows when it want something to be mandatory or precatory. The history behind the statute and the way in which it has been interpreted is “remedial in nature … interpreted to the fullest extent possible to effectuate its purpose” — demonstrates why the legislature said “shall.”

    Moreover “prosecutorial discretion is not a magical incantation that allows prosecutors absolute discretion.” You can find this Federal Circuit Court law and the Court of Appeals.

    The oral argument was a joke. They kept throwing out silly hypos that they abandoned.

    The Court cannot nullify the legislature. That’s worse then judicial lawmaking. That is the Court disenfranchising its citizens — in this case on behalf of a multi billion dollar industry.

    Now you all can write letters home to your moms bragging about how you stole the citizens’ right to democracy.

    And for you idiots out there the only way that a court can invalidate a statute — according to the law including the constitution — is to strike the statute down as unconstitutional.

  8. Kurt Lundgren says:

    Ray,

    Of some comfort, check out North State Autobahn v. Progressive, a decision that came out this week in Westchester Supreme. BCL 349 and interesting.

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