In a cross-appeal, what is the current state of the law in relation to the issue before this panel?

In September 2009, the parties each filed a notice of appeal, and their cross-appeals were returned to this panel. See Docket, Novella v. Westchester County, Nos. 094061(L), 093826(XAP) (2d Cir.). Pursuant to a scheduling order issued by this panel, the parties filed supplemental briefing, which briefing was later withdrawn on the parties' motion. As a result, we now address only the issues presented when the parties first filed their cross-appeals in 2008.