DW-RJB-WCP-Brief

8/4/2019 DW-RJB-WCP-Brief

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Submitted on Brief

Supreme Court of the State of New York

Appellate Division, Fourth DepartmentDocket # OP 11-00539

In the Matter of the Application pursuant to Public Officers Law 36 by

Daniel T. WarrenPetitioner

-Against-

Robert J. Bielecki from the office of Comptroller of the Town of West Seneca, Erie County,New York; and Wallace C. Piotrowski from the office of Budget Officer and Supervisor of theTown of West Seneca, Erie County, New York

Respondents

Petitioners Brief

Daniel T. Warren

Petitioner, Pro Se836 Indian Church RoadWest Seneca, New York 14224


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TABLE OF CONTENTS

TABLE OF CONTENTS ............................................................................................................................................ 1TABLE OF CITATIONS ............................................................................................................................................ 2QUESTIONS PRESENTED ....................................................................................................................................... 4PRELIMINARY STATEMENT ................................................................................................................................ 4ARGUMENT ............................................................................................................................................................... 5

APPLICABLE STANDARD............................................................................................................................................. 5PETITIONERS REQUEST FOR JUDICIAL NOTICE............................................................................................................ 6PETITIONERS REQUEST FOR AN ADVERSE INFERENCE TO BE DRAWN FROM RESPONDENTS FAILURE TO PRODUCEEVIDENCE AND TESTIMONY ........................................................................................................................................ 8EVIDENCE OF RECORD SUPPORTS THE REMOVAL OF RESPONDENTS BIELECKI AND/OR PIOTROWSKI ON THE FIRSTCAUSE OF ACTION ALLEGED IN THE VERIFIED PETITION ............................................................................................ 9EVIDENCE OF RECORD SUPPORTS THE REMOVAL OF RESPONDENT PIOTROWSKI ON THE SECOND CAUSE OF ACTIONALLEGED IN THE VERIFIED PETITION ........................................................................................................................ 22RESPONDENTS ALLEGED DEFENSES TO THIS PROCEEDING....................................................................................... 27

CONCLUSION .......................................................................................................................................................... 28


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TABLE OF CITATIONS

State CasesDe Falco v. Doetsch, 208 A.D.2d 1047 ....................................................................................................................... 28Donovan v. West Indian American Day Carnival Assoc., Inc., 6 Misc.3d 1016[A], 800 NYS2d 345 (2005) .......... .. 10Farrell v Labarbera, 181 A.D.2d 715 ............................................................................................................................. 8Gumo v. Canzoneri, 263 A.D.2d 456 .......................................................................................................................... 29In re Breann B., 185 A.D.2d 711 .......... ........... .......... ........... .......... ........... .......... .......... ........... .......... ........... .......... ...... 8Kaiser v Metropolitan Transit Authority, 170 Misc. 2d 321 ............ .......... ........... .......... ........... .......... .......... ........... .. 10Kingsbrook Jewish Medical Ctr. V. Allstate Insurance Co., 61 AD3d 13................ ........... .......... ........... .......... .......... . 6Kozlowski v City of Amsterdam, 111 A.D.2d 476...................................................................................................... 10Loos v City of New York, 257 App Div 219 .......... .......... ........... .......... .......... ........... .......... ........... .......... ........... ......... 7Matter of Baker v Baker, 87 Misc.2d 592 .......... ........... .......... ........... .......... ........... .......... .......... ........... .......... ....... 5, 28Matter of Chandler v Weir, 30 AD3d 795 ................................................................................................................... 29Matter of Feustel v. Rosenblum, 36 A.D.3d 615 ........... .......... ........... .......... .......... ........... .......... ........... .......... ........... .. 5

Matter of McCarthy v Sanford, 24 AD3d 1168 ........................................................................................................... 29Matter of Mergenhagen, 50 AD3d 1486 ...................................................................................................................... 27Matter of Sloane v Walsh, 245 NY 208 ........... .......... ........... .......... ........... .......... .......... ........... .......... .......... ........... ...... 7Namer v 152-54-56 West 15th Street Realty Corp et al, 108 AD2d 705 ......... ........... .......... ........... .......... ........... ......... 6Newman v Strobel, 236 App Div 371................. ........... .......... ........... .......... .......... ........... .......... .......... ........... ........... .. 5Noce v. Kaufman, 2 N.Y.2d 347 .......... ........... .......... ........... .......... ........... .......... .......... ........... .......... ........... .......... ...... 8People ex rel. Barr v Zeyst, 23 NY 140 ........... .......... ........... .......... ........... .......... .......... ........... .......... .......... ........... ...... 7People ex rel. Katz v. Jones, 10 Misc. 2d 1067 ........... .......... ........... .......... ........... .......... ........... .......... ........... .......... .. 11People ex rel. Lynch v Pierce, 149 App Div 286 ........... .......... ........... .......... .......... ........... .......... ........... .......... ........... .. 7People ex rel. Regan v York, 78 App Div 432 .......... ........... .......... .......... ........... .......... ........... .......... ........... .......... ...... 7People v. Caban, 5 N.Y.3d 143 ................................................................................................................................... 12People v. Conrow, 200 N.Y. 356 ................................................................................................................................. 13People v. Koerner, 154 N.Y. 355 ................................................................................................................................. 13

Perkins v Perkins, 130 AD 193 ...................................................................................................................................... 6Ptasznik v Schultz, 247 AD2d 197 ................................................................................................................................ 6Reed v. Reed, 195 A.D.2d 451 .................................................................................................................................... 27Smith v. Perlman, 105 A.D.2d 878 .............................................................................................................................. 29Summers v City of Rochester, 60 AD3d 1271 .......... ........... .......... .......... ........... .......... ........... .......... ........... .......... .... 27Thurmond v. Thurmond, 155 A.D.2d 527 ................................................................................................................... 27Town Bd. v. Hallock, 2 Misc. 3d 826 .......................................................................................................................... 28West v. Grant, 243 A.D.2d 815 ................................................................................................................................... 27

StatutesArticle 3 of the General Municipal Law ........................................................................................................................ 9Article 8 of the Town Law.......... .......... ........... .......... ........... .......... .......... ........... .......... ........... .......... ........... ........ 21, 30CPLR 4520 ................................................................................................................................................................. 9General Construction Law 41-a .................................................................................................................................. 7

General Municipal Law 35 ......................................................................................................................................... 9Penal Law 200.00 ......................................................................................................................................... 22, 24, 26Penal Law 200.45 ......................................................................................................................................... 22, 24, 26Public Officers Law 36 ............................................................................................................................................... 5Town Law 101 .......................................................................................................................................................... 19Town Law 119 ........................................................................................................................................ 13, 15, 20, 29Town Law 123 .................................................................................................................................................... 19, 29Town Law 125 ................................................................................................................................................... passimTown Law 29 .................................................................................................................................................. 9, 16, 20


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Town Law 30 .............................................................................................................................................................. 9Town Law 34 ............................................................................................................................................................ 19Town Law 63 ...................................................................................................................................................... 20, 28

Federal CasesBeech Aircraft Corp. v Rainey, 488 U.S. 153 ......... ........... .......... ........... .......... ........... .......... ........... .......... .......... 10, 11Bradford Trust Co. v. Merrill Lynch, Pierce, Fenner and Smith, Inc., 805 F.2d 49, 54 (2d Cir. 1986).......... ........... .. 11

Ellis v. International Playtex, Inc., 745 F.2d 292 .......... .......... ........... .......... .......... ........... .......... ........... .......... ........... 11United States v. Hudson, 884 F.2d 1016 .......... ........... .......... ........... .......... ........... .......... ........... .......... .......... ........... .. 11

Federal RulesFederal Rules of Evidence, Rule 803(8)(C) ................................................................................................................. 10

Treatises48 NY Jur, Public Officers and Employees, 232 ......... ........... .......... ........... .......... ........... .......... ........... .......... .......... . 448 NY Jur, Public Officers and Employees, 233 ......... ........... .......... ........... .......... ........... .......... ........... .......... .......... . 4Alexander, Practice Commentaries, McKinney's Cons. Laws of NY, Book 7B, CPLR C4520:3, p. 246 .......... ......... 10

Opinion of the State Comptroller1978 Op St Compt File #916 ....................................................................................................................................... 191982 N.Y. Comp. LEXIS 479; 1982 N.Y. St. Comp. 313 ........................................................................................... 29


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QUESTIONS PRESENTED

1. Should Respondent Bielecki be removed from office pursuant to Public OfficersLaw 36 based on the first cause of action alleged in the verified petition?

2. Should Respondent Piotrowski be removed from office pursuant to PublicOfficers Law 36 based on the first cause of action alleged in the verified

petition?

3. Should Respondent Piotrowski be removed from office pursuant to PublicOfficers Law 36 based on the second cause of action alleged in the verified

petition?

PRELIMINARY STATEMENT

This is a proceeding seeking the removal of Respondent Piotrowski from the office of

Supervisor and Budget Officer of the Town of West Seneca and Respondent Bielecki from the

office of Comptroller of the Town of West Seneca pursuant to Public Officers Law 36.

The grounds for removal that this proceeding is based upon are: on the First Cause of

Action against Respondents Bielecki and Piotrowski for their gross dereliction of duty and

pattern of routine disregard of mandates of the law and procedure as set forth in the September

2010 report by the Office of the State Comptroller, Division of Local Government and School

Accountability entitled Report of Examination of the Town of West Seneca Misuse of Town

Credit Cards and Resources that was admitted into evidence at the hearing before the referee

(hereinafter State Comptrollers Report) ; The Second Cause of Action seeks the removal of

Respondent Piotrowski based upon his "corrupt bargaining for appointment (48 NY Jur, Public

Officers and Employees, 232), and [attempted] bribery (48 NY Jur, Public Officers and

Employees, 233)." Application of Baker, 87 Misc. 2d 592, 594 (N.Y. Sup. Ct. 1976).


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This proceeding was commenced by the filing of a Notice of Petition with Verified

Petition in the Court Clerks Office on March 16, 2011. Issue was joined when Respondents

filed and served their respective answers on or about April 29, 2011. This Court then appointed

the Hon. Stephen R. Sirkin as referee to hear testimony and take evidence and issue findings of

facts by order dated June 10, 2011. A hearing was held before the referee on July 20, 2011.

Petitioner thereafter served and filed his Verified Reply by leave of this Court on or about

August 5, 2011. The referee issued his report on or about August 24, 2011. By order of this

Court entered on September 9, 2011 the Referees Report was sealed and the parties were

prohibited from disclosing the report or its contents. For the purposes of this brief Petitioner will

presume the parties and the Courts familiarity with this report and will not disclose or

summarize its contents herein.

ARGUMENT

APPLICABLE STANDARD

Pursuant to Public Officers Law 36 this court is empowered to remove a public official

for what amounts to intentional wrongdoing, gross dereliction, moral turpitude or a violation of a

public trust. The applicable burden of proof to this proceeding if proof by a preponderance of the

evidence (see Matter of Feustel v. Rosenblum, 36 A.D.3d 615; Matter of Baker v Baker, 87

Misc.2d 592). As the court noted in Matter of Newman v Strobel, 236 App Div 371, 373, the

object of section 36 of the Public Officers Law is "not to punish the offender, but to improve the

public service."

The report of a Referee should be confirmed if the findings therein are supported by the

record. Generally, New York courts will look with favor upon a Referee's report, inasmuch as


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the Referee, as trier of fact, is considered to be in the best position to determine the issues

presented (see, Namer v 152-54-56 West 15th Street Realty Corp et al, 108 AD2d 705, 485

N.Y.S.2d 1013 [1985]; see also, Perkins v Perkins, 130 AD 193, 114 N.Y.S. 960, 1 Civ. Proc.

Rep. (n.s.) 177 [1st Dept 1909]).

PETITIONERS REQUEST FOR JUDICIAL NOTICE

Petitioner previously sought by way of a motion for this Court to take judicial notice of

various documents. In this Courts July 21, 2011 order on the motion, in this regard, was

dismissed without prejudice to petitioner raising this issue either before the referee or in the brief

to this Court.

Case law recognizes generally, two disjunctive circumstances where information may be

judicially noticed. The first is when information "rests upon knowledge [that is] widely

accepted" (Ptasznik v Schultz, 247 AD2d 197 at 198 [emphasis added]) such as calendar dates,

geographical locations, and sunrise times (id. at 198). The second "rests upon . . . sources [that

are] widely accepted and unimpeachable" (id. [emphasis added]), such as reliable uncontested

governmental records.

The Appellate Division, Second Department has noted numerous cases in which courts

took judicial notice of documents downloaded from government websites. Kingsbrook Jewish

Medical Ctr. V. Allstate Insurance Co., 61 AD3d 13, 20, 871 N.Y.S.2d 680 (2d Dept. 2009) (J.

Dillion, in dictum) (citing Munaron v. Munaron, 21 Misc.3d 295, 862 N.Y.S.2d 796 (NY Sup.

Ct. 2008); Parrino v. Russo, 19 Misc.3d 1127[A], 866 N.Y.S.2d 93, 2008 NY Slip Op 50925[U],

2008 WL 1915133, at *3 (NY Civ. Ct. 2008); Nairne v. Perkins, 14 Misc.3d 1237[A], 836

N.Y.S.2d 501, 2007 NY Slip Op 50336[U], 2007 WL 656301, at *1 (NY Civ. Ct. 2007); Proscan


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Radiology of Buffalo v. Progressive Casualty Insurance Co., 12 Misc.3d 1176[A], 820 N.Y.S.2d

845, 2006 NY Slip Op 51242[U], 2006 WL 1815210, at *5 (NY City Ct. 2006); see also

Bernstein v. City of New York, 2007 N.Y. Slip Op 50162[U], 14 Misc.3d 1225[A], 836

N.Y.S.2d 491 (NY Sup. Ct. 2007); Miriam Osborn Memorial Home Assn. v. Assessor of City of

Rye, 9 Misc.3d 1019, 800 N.Y.S.2d 909 (NY Sup. Ct. 2005)).

Lastly minutes of the meetings of public bodies are prima facie evidence of the events

that occurred therein (General Construction Law 41-a). Also ordinarily, extrinsic evidence is

inadmissible to contradict, supplement, add to or explain municipal records, including the

minutes of a town board meeting (see, Matter of Sloane v Walsh, 245 NY 208, 214; People ex

rel. Barr v Zeyst, 23 NY 140; Loos v City of New York, 257 App Div 219, 223; People ex rel.

Lynch v Pierce, 149 App Div 286, 288-289; People ex rel. Regan v York, 78 App Div 432, 435-

436, affd 174 NY 533).

Petitioner respectfully requests that this Court take judicial notice of the following

documents:

Exhibits A, B, C, D, E, and F attached to Petitioners Verified Reply which

are certified copies of minutes of various meetings of the West Seneca Town Board obtained

from the West Seneca Town Clerk.


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PETITIONERS REQUEST FOR AN ADVERSE INFERENCE TO BE DRAWN FROM

RESPONDENTS FAILURE TO PRODUCE EVIDENCE AND TESTIMONY

At the hearing before the referee on July 20, 2011 both Respondents were present and

called to testify on the Petitioner case as adverse witnesses. Both Respondents were given the

opportunity to present their own evidence but declined, not just once but twice (Tr. Page 42 line

22 through Page 43 line 4; Page 46 lines 48 (References to the transcript is to the hearing held

before the Hon. Stephen R. Sirkin, Referee, on July 20, 2011)) and Respondents rested upon

Petitioners proof at the hearing. The Court of Appeals in Noce v. Kaufman, 2 N.Y.2d 347, 353

held that "where an adversary withholds evidence in his possession or control that would be

likely to support his version of the case, the strongest inferences may be drawn against him

which the opposing evidence in the record permits ( Perlman v. Shanck, 192 App. Div. 179;

Milio v. Railway Motor Trucking Co., 257 App. Div. 640; Borman v. Henry Phipps Estates, 260

App. Div. 657)." (See also In re Breann B., 185 A.D.2d 711 (4th Dept. 1992). "It is well settled

that where one party to an action, knowing the truth of a matter in controversy and having the

evidence in his possession, omits to speak, every inference against him warranted by the

evidence may be considered" (Farrell v Labarbera, 181 A.D.2d 715, 716, 581 N.Y.S.2d 226

[1992]).


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EVIDENCE OF RECORD SUPPORTS THE REMOVAL OF RESPONDENTS BIELECKI

AND/OR PIOTROWSKI ON THE FIRST CAUSE OF ACTION ALLEGED IN THE

VERIFIED PETITION

This report is the result of an audit performed by the Office of the State Comptroller

pursuant to his duties under Article 3 of the General Municipal Law under the supervision of

Chief Examiner, Robert E. Meller. The records that were reviewed in conducting this audit were

the records kept by the Town Comptroller and Town Supervisor and the minutes of the Town

Board minutes. The Respondents, Supervisor Piotrowski and Comptroller Bielecki were under a

business duty to properly and accurately record in their records the financial transactions of the

town (Town Law 29). The West Seneca Town Clerk, Patricia DePasquale, was under a

business duty to accurately record the minutes of every meeting of, and record the business

transacted by, the Town Board and is the custodian of all the records, books and papers of the

town (Town Law 30(1)). According to the report the audit was conducted in accordance with

generally accepted government auditing standards (GAGAS) and used procedures and

methodologies as set forth in Appendix C of this document.

General Municipal Law 35(1) requires that this report be on file in the Town

Comptrollers office. Respondent Bielecki, who is the Town Comptroller, testified that it is a

true copy of a document that is on file in his office and is therefore admissible pursuant to CPLR

4520 (Tr. Page 29 lines 8-17). It is after this testimony and some colloquy between counsel for

the parties and the referee that the referee admitted it into evidence (Tr. Page 29 line 18 to Page

31 line 15).


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All parties stipulated as to this documents authenticity prior to the hearing as evidenced

by the colloquy at the hearing (Tr. Page 26 line 17 to Page 27 line 13)

New York courts may look to the Federal counterpart in the Federal Rules of Evidence,

Rule 803(8)(C) and the judicial treatment thereof (Donovan v. West Indian American Day

Carnival Assoc., Inc., 6 Misc.3d 1016[A], 800 NYS2d 345 (2005)). Under FRE 803(8)(C)

factual finding resulting from an investigation made pursuant to authority granted by law are

admissible and will not be excluded as hearsay unless the sources of information or other

circumstances indicate lack of trustworthiness. It should be noted that "[a]lthough the Federal

rule speaks only of the admissibility of investigatory reports containing factual findings, the

Supreme Court of the United States has interpreted the rule broadly to permit opinions and

conclusions contained in such reports" (Kaiser v Metropolitan Transit Authority, 170 Misc. 2d

321, 325, citing Beech Aircraft Corp. v Rainey, 488 U.S. 153, 102 L. Ed. 2d 445, 109 S. Ct. 439

[1988]). "The touchstone for admissibility, the Court reasoned, should not be an arbitrary

distinction between 'facts' and 'opinion,' but an analysis of whether the particular portion of the

report in question, or the report as a whole, is trustworthy" (Alexander, Practice Commentaries,

McKinney's Cons. Laws of NY, Book 7B, CPLR C4520:3, p. 246, citing Beech Aircraft, 488

U.S. at 167 n. 11). At the very least this document falls within the common law public

documents exception to the rule against hearsay (see Kozlowski v City of Amsterdam, 111

A.D.2d 476, 478, 488 N.Y.S.2d 862 [1985], citing Sklar, Practice Commentaries, McKinney's

Cons. Laws of NY, Book 7B, CPLR C4520, p. 480, and Richardson on Evidence 342, 346, at

308-309 [Prince 10th ed.]) and worthy of consideration.

On a previous motion the Respondents asserted that they were unable to cross-examine

the Comptrollers report or any of the unidentified persons who were apparently interviewed in


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connection with it. (Paragraph 37 of the affidavit of Timothy Hoover dated September 2, 2011).

However, even in criminal cases, where there is a specific Constitutional Right to Confrontation

under the Sixth Amendment of the U.S. Constitution it has been long established that The right

of an accused in a criminal action to be confronted by the witnesses who testify against him, is

not violated by the introduction of so-called public documents or official records required to be

kept. ( Heike v. United States, 192 F. 83, 94, 95, affd. 227 U.S. 131; Commonwealth v. Slavski,

245 Mass. 405, 414, 415, 417; People v. Reese [1932], 258 N. Y. 89, 96; People v. Corey, 157

N. Y. 332; 5 Wigmore on Evidence, 1398, pp. 136, 141, 142; Richardson on Evidence [6th

ed.], 615, 616, 646, 647.)" People ex rel. Katz v. Jones, 10 Misc. 2d 1067, 1074 (N.Y. Magis.

Ct. 1958).

The credibility of a government report and the weight attached to it are matters to be

decided by the trier of fact. Bradford Trust Co. v. Merrill Lynch, Pierce, Fenner and Smith, Inc.,

805 F.2d 49, 54 (2d Cir. 1986) (citing Rosario v. Amalgamated Ladies Garment Cutters' Union,

605 F.2d 1228, 1251 (2d Cir. 1979), cert. denied, 446 U.S. 919, 64 L. Ed. 2d 273, 100 S. Ct.

1853 (1980)). The Supreme Court has observed that "the admission of a report containing

'conclusions' is subject to the ultimate safeguard -- the opponent's right [at trial] to present

evidence tending to contradict or diminish the weight of those conclusions." Beech Aircraft v.

Rainey, 488 U.S. 153, 109 S. Ct. 439, 449, 102 L. Ed. 2d 445 (1988). See, e.g., United States v.

Hudson, 884 F.2d 1016, 1022-23 (7th Cir. 1989) (Congress did not intend to allow reports

admitted under 803(8)(C) to escape rigorous scrutiny; such scrutiny serves policy favoring

admission and retains desirability of careful scrutinization of reliability) (citations omitted); Ellis

v. International Playtex, Inc., 745 F.2d 292, 303 (4th Cir. 1984) (same). In the case at bar

Respondents knew in advance of the hearing that Petitioner intended to offer the State


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Comptroller's Report into evidence. This knowledge is evidenced by the fact that it was annexed

to the Verified Petition as Exhibit 1 combined with Petitioners motion for a subpoena duces

tecum to obtain it from the Office of the State Comptroller (See this Courts order dated June 10,

2011) and the subsequent stipulation as to its authenticity (Tr. Page 26 line 17 to Page 27 line

13), but failed to introduce any such evidence.

The Respondents failed to introduce documentary or testimonial evidence that would

negate or diminish the weight of the conclusions of the State Comptrollers Report or its factual

findings. The Respondents also failed to introduce evidence that what is reported in the State

Comptrollers Report did not occur during their respective terms of office. Therefore, an

inference should be drawn that no such evidence exists and the strongest inference should be

drawn against them that the State Comptrollers Report permits.

Additionally the State Comptroller's Report contains written statements made by the

Respondents and is admissible against them. See: People v. Caban, 5 N.Y.3d 143, 151 (N.Y.

2005) ("Plainly, defendant's own statements could be received in evidence as party admissions

(see People v Chico, 90 N.Y.2d 585, 589, 687 N.E.2d 1288, 665 N.Y.S.2d 5 [1997]; Reed v

McCord, 160 NY 330, 341, 54 N.E. 737 [1899 v McCord, 160 NY 330, 341, 54 N.E. 737 [1899]

["admissions by a party of any fact material to the issue are always competent evidence against

him, wherever, whenever or to whomsoever made"]; Prince, Richardson on Evidence 8-201, at

510 [Farrell 11th ed] [defining an admission as "an act or declaration of a party . . . which

constitutes evidence against the party at trial"])."). Within these written statements both

Respondents made tacit admissions and at time outright admissions as detailed below. The rule

is settled that such accusatory statements, not denied, may be admitted against the one accused,

as admissions, but only when the accusation was "fully known and fully understood" by


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defendant ( People v. Koerner, 154 N.Y. 355, 374), and when defendant was "at full liberty to

make answer thereto, and then only under such circumstances as would justify the inference of

assent or acquiescence as to the truth of the statement by his remaining silent" ( People v.

Conrow, 200 N.Y. 356, 367).

Respondent Piotrowski is an attorney duly admitted to practice before the Courts of the

State of New York since 1987 and served as a town justice in the West Seneca Town Court for

16 years ( 35 of Respondent Piotrowskis Verified Answer)

Respondent Bielecki is a certified public accountant and has been practicing public

accounting since 1977 and is a member of the New York Society of Certified Public Accountants

and the American Institute of Certified Public Accountants ( 34 of Respondent Bieleckis

Verified Answer). Respondent Bielecki is also employed as a partner in the accounting firm of

Schunk, Wilson & Company (Tr. Page 18 lines 13 ).

Respondent Bielecki also failed to properly audit claims prior to the Respondent

Piotrowski paying them. The State Comptroller found that The Comptroller also did not

prepare an abstract of audited claims for the Town Supervisor; therefore,proper authorization

was not obtained prior to printing and disbursing the checks for payment. Although the

Comptroller initials the claims indicating his audit, he stated that, in some cases, checks are

printed and signed prior to his audit, which could result in a circumvention of the audit of claims

requirement. (Page 9, paragraph 3, of the State Comptroller's Report). Despite this finding

neither Respondent Bielecki nor Respondent Piotrowski dispute it in their respective responses to

the State Comptrollers Report and this is an admission of a violation of Town Law 119, 125.

In a conclusory and self-serving fashion Respondent Bielecki in paragraph 11 of his Verified

Answer asserts that he has always submitted proof of auditing claims. However, he fails to


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state whether or not the proof was submitted before or after the Supervisor paid out on the claim.

Respondent Bielecki also does not submit any documentary evidence to support his assertion in

paragraph 11 of his Verified Answer. Additionally, in denying this allegation Respondent

Bielecki points to an apparent audit of WNY Americorps by the Inspector General that

purportedly found no fault with any improper expenditures, but the question is whether or not

Respondent Bielecki was in compliance with State Law that governs his duties and powers the

Inspector Generals findings under federal law is irrelevant. Respondent Piotrowski merely

denies this allegation in paragraph 2 of this Verified Answer. Respondent Bielecki testified that

he only started preparing an abstract of claims after the State Comptrollers Report was issued

(Tr. Page 21 lines 612).

Nowhere in Respondent Piotrowskis response to the audit finding does he dispute that he

permitted checks to be printed and disbursed without proper authorization and this constitutes an

admission on his part. Respondent Piotrowski did not require Respondent Bielecki to prepare an

abstract of the audited claims as required by law due to the fact that Respondent Bielecki

testified that he did not begin to prepare an abstract of audited claims until after the State

Comptrollers report (Tr. Page 21 lines 6 12). Respondent Piotrowski between January 1, 2008

through sometime in August 2010 allowed checks to be printed and disbursed in the absence of

such abstract of audited claims. Therefore Respondent Piotrowski allowed a break-down in the

intricate checks and balance scheme embodied in Article 8 of the Town Law.

Respondent Piotrowski stated that there was to be a review of the Comptrollers office at

the January 14, 2008 meeting of the West Seneca Town Board (second last paragraph of page 8

of Exhibit A of Petitioners Verified Reply). While Respondent Bielecki testified I dont

know of any formal review, no. I mean, the supervisor is always going through and asking


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questions and determining what were doing andhow were doing that, I dont know if you would

count that as a review but, yes, that was ongoing (Tr. Page 22 lines 8 12 ). Yet despite this

ongoing questioning Respondent Piotrowski failed to detect and attempt to address the

fundamental breakdown in the intricate checks and balance system as set forth in Article 8 of the

Town Law.

According to the State Comptroller's Report, Respondent Bielecki did not properly audit

claims presented to him not just by WNY Americorps, but from any other department as well.

Specifically the State Comptroller's Report states that The Comptroller did not perform a proper

audit of claims submitted by the Executive Director, or those he supervised, for WNY

AmeriCorps or Youth Bureau activity. Such claims generally lacked any supporting

documentation, such as invoices or receipts to identify the nature of the charges. The

Comptroller stated that the financial activity and account coding is based on the Executive

Directors judgment. He also stated that he did not require any Town departments to submit

documentation supporting credit card claims. Instead he relies, without any verification, on the

respective department heads to retain this documentation for review, even though it is the

responsibility of the Comptroller to audit and approve these claims. We found no evidence that

any review of supporting documentation had been performed by the Comptroller. (Page 9,

paragraph 2, of the State Comptroller's Report). As much as Respondent Bielecki, while not

disputing that this violation of Town Law 119 did in fact occur, points to the lack of

cooperation from the Executive Director of WNY Americorps as an excuse why proper

documentation was not obtained prior to payment of claims (Page 29, paragraph 2, of the State

Comptroller's Report). Interestingly, at no time did he invoke his power of subpoena under

Town Law 119 to obtain the required supporting documentation for the claims presented to


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him for payment nor does he explain why he did not. Even assuming the failure of WNY

Americorps to cooperate with Respondent Bielecki excuses the payment of claims in the absence

of proper supporting documentation and audit it does not explain his failure to require this

documentation from the other department heads as the State Comptrollers report notes on page

31 note 2 of the State Comptroller's Report.

Respondent Bielecki in his position as Town Comptroller was, and is, required to keep

an accurate and complete account of the receipt and disbursement of all moneys which shall

come into his hands by virtue of his office, in books of account in the form prescribed by the

state department of audit and control for all expenditures under the highway law and in books of

account provided by the town for all other expenditures. Such books of account shall be public

records, open and available for inspection at all reasonable hours of the day, and, upon the

expiration of his term, shall be filed in the office of the town clerk. (Town Law 29(4)).

The State Comptrollers report found that the "Financial activity for the Towns Youth Bureau,

WNY AmeriCorps and grant programs was improperly accounted for in the general, special

grant and trust and agency funds. During our audit period, the Comptroller recorded related

expenditures of $862,900 in the general fund and $7.6 million in the special grant fund. In

addition he recorded disbursements related to these programs totaling $2.8 million10 in the trust

and agency fund. The Towns external auditor subsequently analyzed and reclassified cash

receipt and disbursement activity recorded in the trust and agency fund as revenues and

expenditures in other Town funds. However, the Comptroller did not adjust the Towns

accounting records to reflect these significant reclassifications. Therefore, the Towns accounting

records are inaccurate and do not agree with the audited financial statements. Moreover, the


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Board cannot rely on the Comptrollers accounting records to make informed financial

decisions." (Page 10, paragraph 3, of the State Comptroller's Report).

According to this report The Executive Director of WNY Americorps and employees

under his supervision would make deposits in various accounts and Respondent Bielecki did not

determine the source of these moneys to properly account for this activity as it occurred. Rather,

after the deposits were made, the Executive Director or other employees under his supervision

provided a deposit slip to the Comptroller and indicated what fund (e.g., special grant fund or

trust and agency fund) to record the activity in. During our audit period approximately $2.5

million was recorded as cash receipts in the trust and agency fund for this activity. This was

composed of program income, donations, proceeds from fundraising, other grants and a transfer

of $283,796 from the general fund. The transfer (fn8 The Town Board approved this transfer in

October 2008. However, the Town accounting records and the audited financial statements

reflected this transaction as having occurred in 2007.) in effect is the amount borne by Town

taxpayers to address salary and other cost allocation errors that presumably occurred in previous

years between the Town Youth Bureau and WNY AmeriCorps. Because these transactions were

recorded in the trust and agency fund, no revenues or expenditures were recognized to properly

account for grant activity at the time these transactions occurred. (Page 10, paragraph 4, of the

State Comptroller's Report).

The State Comptroller found that Respondent Bielecki also improperly approved claims,

generally without any supporting documentation, which were disbursed from the trust and

agency fund. These disbursements totaled $1.1 million for the period January 1, 2006 through

August 14, 2009. The Executive Director and certain other employees under his supervision

stated that they decided where disbursements should be charged by the Comptroller in the


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Towns accounting records. If they believed the disbursement was grant related and would be

allowed, (Federal grant awards are subject to Federal audit. If the Federal auditors identify

disallowances (expenditures that are not chargeable to the grant) the Grantee (in this case the

Town) will not be reimbursed.) they would have the Comptroller account for it in the special

grant fund. If they believed the disbursement was related to Town operations, they would have

the Comptroller charge it to Youth Bureau appropriations in the general fund. If neither of these

conditions could be met, they had the Comptroller account for the disbursement in the trust and

agency fund. As such, the Comptroller allowed employees to dictate the use of this money and

how it should be recorded. (Page 11, paragraph 2, of the State Comptroller's Report).

The State Comptroller also found that Respondent Bielecki did not properly record

inter-fund activity associated with transfers made to the special grant fund from other Town

funds. (Page 11, paragraph 3, of the State Comptroller's Report).

The State Comptrollers Office also found that Respondent Bielecki failed to file monthly

revenue and expenditure reports with the Town Board (Page 13, paragraph 3, of the State

Comptroller's Report). According to the State Comptrollers report Respondent Bielecki

indicated that he was unaware of this requirement (See Town Law 125(2)). However, in

paragraph 12 of his Verified Answer he states that he has always provided these reports to the

Town Board and in September 2010 they were merely formally presented to the Town Board at

the meeting. Respondent Bielecki has not provided any documentary evidence to support this

self-serving denial. Furthermore, if Respondent Bieleckis position on this issue is correct then

why was this not countered in his response to the State Comptrollers report? In fact what he did

say on this issue was The Comptroller[]s office provides monthly printouts to all department

heads and has provided all Town Board members with specific financial documents when


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requested by them. (Page 28, paragraph 3, of Exhibit the State Comptroller's Report). The State

Comptrollers office rejected this response on page 31 note 5 of the State Comptroller's Report

and in any event Respondent Bielecki was required to provide the monthly reports to the Town

Board each month not just when they were requested. Respondent Bielecki ultimately testified

that these revenue and expenditure reports were not given to town board members prior to the

State Comptrollers report although they were available upon request. (Tr. Page 21 lines 13

25). However, the law requires that it be provided to the Town Board not just made available to

them upon request.

The State Comptrollers Office also found that Respondent Bielecki did not perform an

annual audit of the records of Town officials and employees that received or disbursed moneys

on behalf of the Town as required by Town Law. Respondent Bielecki testified that this is done

by an outside independent auditor and there is no specific time when it is to be completed (Tr.

Page 19 line 16 through Page 20 Line 9). In towns which have a town comptroller, it is his

responsibility to examine the accounts of town officers and employees in accordance with

Section 123 of the Town Law (Town Law 34; 1978 Op St Compt File #916). Even assuming

that it was proper for this to be delegated to an outside/third-party auditor it must be completed

within 60 days of the close of the towns fiscal year (Town Law 123 ). The fiscal year for the

Town of West Seneca ends on December 31st

of each year (Town Law 101). The State

Comptrollers report states that "In the March 2, 2009 Board minutes, a Board member

questioned the Comptroller regarding annual audits. The Comptroller responded that he had not

performed them." (Footnote 16 on Page 14, of the State Comptroller's Report). This report stated

that The failure to perform an annual audit reduces accountability over Town assets and

increases the risk that errors and irregularities will not be detected and corrected. (Paragraph 1


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on Page 14, of the State Comptroller's Report). This is corroborated by the minutes of the Town

Board Meeting held on May 2, 2009 (second last paragraph of page 17 of Exhibit B of

Petitioners Verified Reply).

Respondent Piotrowski as the Town Supervisor, along with other administrative staff, is

responsible for the administration and supervision of the day-to-day operations of the Town and

is the presiding officer of the Town Board (Town Law 29 & 63).

Respondent Piotrowski, as well as others, undertook a department by department review

that began with the Town Attorneys Office andthe Town Comptrollers Office beginning in

January 2008 in order to in an effort to make those departments more efficient and effective.

(Exhibit 2 attached to the Verified Petition, page 10, last paragraph).

Respondent Piotrowski was prohibited by Town Law 125 from paying out any town

money except upon the warrant, order or draft of the town comptroller, after audit and

allowance thereof. That despite this provision of law Respondent Piotrowski disbursed funds in

the absence of an abstract prepared by Respondent Bielecki as required by Town Law 119

(When a claim has been audited by the town comptroller, he shall file the same in numerical

order as a public record in his office and prepare an abstract of the audited claims specifying the

number of the claim, the name of the claimant, the amount allowed and the fund and

appropriation account chargeable therewith and such other information as may be deemed

necessary or essential,directed to the supervisor of the town, authorizing and directing him to

pay to the claimant the amount allowed upon his claim..). Respondent Bielecki testified that

he only started preparing an abstract of claims after the State Comptrollers report was issued

(Tr. Page 21 lines 612). The State Comptroller found that The Comptroller also did not

prepare an abstract of audited claims for the Town Supervisor;therefore, proper authorization


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21

was not obtained prior to printing and disbursing the checks for payment . Although the

Comptroller initials the claims indicating his audit, he stated that, in some cases, checks are

printed and signed prior to his audit, which could result in a circumvention of the audit of claims

requirement. (Page 9, paragraph 3, of the State Comptroller's Report).

Nowhere in Respondent Piotrowskis response to the audit finding does he dispute that he

permitted checks to be printed and disbursed without proper authorization in violation of Town

Law 125 and this constitutes an admission on his part. Respondent Piotrowski did not require

Respondent Bielecki to prepare an abstract of the audited claims as required by law due to the

fact that Respondent Bielecki testified that he did not begin to prepare an abstract of audited

claims until after the State Comptrollers report (Tr. Page 21 lines 6 12). Respondent

Piotrowski between January 1, 2008 through sometime in August 2010 allowed checks to be

printed and disbursed in the absence of such abstract of audited claims. Therefore Respondent

Piotrowski allowed a break-down in the intricate checks and balance scheme embodied in Article

8 of the Town Law.

Neither Respondents presented any evidence or testified as to how these above acts were

not a result of gross dereliction of duty and pattern of routine disregard of mandates of the law

and procedure despite their years of experience in their respective fields.

Surely Respondent Piotrowski upon taking office would have, given his experience as an

attorney and town justice, would have looked into what were his legal obligations of taking

office and would have reviewed Town Law 119, 125 among other provisions of the Town

Law. Had Respondent Piotrowski done so he could have properly guided Respondent Bielecki

upon discovering that what he was producing was not sufficient for him to perform his statutory

duties.


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22

EVIDENCE OF RECORD SUPPORTS THE REMOVAL OF RESPONDENT PIOTROWSKI

ON THE SECOND CAUSE OF ACTION ALLEGED IN THE VERIFIED PETITION

Penal Law 200.45provides A person is guilty of bribe giving for public office when

he confers,or offers or agrees to confer,any money or other property upon a public servant or

a party officer upon an agreement or understanding that some person will or may be appointed

to a public office or designated or nominated as a candidate for public office.

Penal Law 200.00provides A person is guilty of bribery in the third degree when he

confers, or offers or agreesto confer, any benefit upon a public servant upon an agreement or

understanding that such public servant's vote, opinion, judgment, action, decision or exercise of

discretion as a public servant will thereby be influenced.

The parties stipulated that if Mrs. Meegan were to testify that she would testify that she

abstained from voting on her husband Michael Meegans promotion (Tr. Page 43 line 25 through

page 44 line 14). The parties further stipulated that there were discussion between Mrs. Meegan

and Mr. Piotrowski regarding the promotion of Michael Meegan to working crew chief and the

appointment of Joe Lorigo to town prosecutor and in the end Michael Meegan was not promoted

to working crew chief and Joe Lorigo was not appointed town prosecutor (Tr. Page 45 Line 14

through Page 46 Line 3).

Council Member Dale Clarke testified that he stated that I would tell the people out in

front that a deal was being made to vote for Michael Meegan in place of Joey Lorigo getting

town prosecutor. (Tr. Page 12 lines 2124 ). That Mr. Piotrowski was present when he made

that statement and Mr. Piotrowski did not make any statement or take any actions in response to

hearing that statement. (Tr. Page 13 lines 57 ). This constitutes a tacit admission on the part

of Respondent Piotrowski that there was a deal being made to Mrs. Meegan for him to vote for


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Michael Meegan in exchange for Mrs. Meegans vote to appoint Joe Lorigo Town Prosecutor.

This is corroborated by the Minutes of the February 7, 2011 meeting of the West Seneca Town

Board (Exhibit E page 11 attached to the Verified Reply).

When confronted with this by Charlie Specht, a reporter for The Buffalo News,

Respondent Piotrowski made the statement These kinds of deal are made every day, in every

town, every year. And Respondent Piotrowski went on to state The deals are always made. Is

it right that its made? Yeah, I dont see any problem, its not illegal. I want something and Im

asking for it. (Tr. Page 39 line 1 - 12 ).

Respondent Piotrowski made the following statement to Charlie Specht: If youre going

to take this one vote that I did and not look at the other 3,000 votes that Ive taken for the

residents to save money, to save expenses, to reduce taxes, to try to consolidate departments . . . I

think all the other things far outweigh any negatives someone may have for me making this type

of decision. (Tr. Page 39 lines 13 22 ).

Notably, Respondent Piotrowski did not immediately move to appoint anyone else to the

position of working crew chief until the March 7, 2011 meeting. (Tr. Page 41 line 23 through

page 42 line 6). This is corroborated by the Minutes of the February 7, 2011 and March 7, 2011

meetings of the West Seneca Town Board (Exhibit E page 11 and Exhibit F pages 3 and 4

attached to the Verified Reply). This leads one to the conclusion that if Respondent Piotrowski

had moved to appoint someone else to the position of working crew chief on February 7, 2011

that he would lose the leverage he had in order to obtain an appointment to town prosecutor for

Joe Lorigo.

Because Mrs. Meegan would financially benefit on the vote to promote her husband she

was required to abstain from voting on that question (General Municipal Law Article 18).


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Respondent Piotrowskis offer to Mrs. Meegan to vote for her husbands promotion in exchange

for her vote for the appoint Joe Lorigo to the position of town prosecutor constitutes a bribe offer

within the contemplation of Penal Law 200.00, 200.45.

Counsel for Respondent Piotrowski has conceded that Respondent Piotrowskis vote in

favor of Council member Sheila Meegans husband would constitute a financial benefit to her.

(Paragraph 24 of the affidavit of Timothy Hoover dated September 2, 2011). Respondent

Piotrowski admitted in 24 of his Verified Answer that she was personally interested in her

husbands promotion.

The evidence is clear Respondent Piotrowski offered to confer a financial benefit to a

public officer, Councilmember Sheila Meegan, in the form of his vote in favor of her husband

Michael Meegans promotion, a vote that she could not participate in, which would provide a

financial benefit to her in exchange for her vote for Joseph Lorigo as Town Prosecutor.

The parties stipulated that if Mrs. Meegan were to testify that she would testify that she

abstained from voting on her husband Michael Meegans promotion (Tr. Page 43 line 25 through

page 44 line 14). The parties further stipulated that there were discussion between Mrs. Meegan

and Mr. Piotrowski regarding the promotion of Michael Meegan to working crew chief and the

appointment of Joe Lorigo to town prosecutor and in the end Michael Meegan was not promoted

to working crew chief and Joe Lorigo was not appointed town prosecutor (Tr. Page 45 Line 14

through Page 46 Line 3).

Council Member Dale Clarke testified that he stated that I would tell the people out in

front that a deal was being made to vote for Michael Meegan in place of Joey Lorigo getting

town prosecutor. (Tr. Page 12 lines 21 24 ). Although Mr. Clarke testified that the Town

Board went into an executive session that lasted 30 to 45 minutes (Tr. Page 11 lines 1318) it


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was actually approximately 1 hour 55 minutes according to the minutes of the West Seneca

Town Board meeting of February 7, 2011 (Page 10 of Exhibit E attached to the Verified

Reply). That Mr. Piotrowski was present when he made that statement and Mr. Piotrowski did

not make any statement or take any actions in response to hearing that statement. (Tr. Page 13

lines 57 ). Mr. Clarke did in fact make such a statement to the public and Respondent

Piotrowski did not make any statement to dispute it during the open session after he made a

motion to appoint Mike Meegan to working crew chief and it died for lack of a second (Exhibit

E page 11 attached to the Verified Reply). These constitute tacit admissions on the part of

Respondent Piotrowski that there was a deal being made to Mrs. Meegan for him to vote for

Michael Meegan in exchange for Mrs. Meegans vote to appoint Joe Lorigo Town Prosecutor.

When confronted with this by Charlie Specht, a reporter for The Buffalo News,

Respondent Piotrowski made the statement These kinds of deal are made every day, in every

town, every year. And Respondent Piotrowski went on to state The deals are always made. Is

it right that its made? Yeah, I dont see any problem, its not illegal. I want something and Im

asking for it. (Tr. Page 39 line 1 - 12 ).

Respondent Piotrowski made the following statement to Charlie Specht: If youre going

to take this one vote that I did and not look at the other 3,000 votes that Ive taken for the

residents to save money, to save expenses, to reduce taxes, to try to consolidate departments . . . I

think all the other things far outweigh any negatives someone may have for me making this type

of decision. (Tr. Page 39 lines 1322 ).

Interestingly at no time did Respondent Piotrowski testify that he did not offer to vote for

Michael Meegans promotion in exchange for Mrs. Meegans vote for Joseph Lorigo nor did he

testify as to the other parts of the conversation he had with the news reporter Charlie Specht


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26

despite his attorney having an opportunity to elicit such testimony (Tr. Page 42 lines 715 ).

One can reasonably conclude that this was so because it would not have helped him, but rather

further incriminate him and an adverse inference should be drawn against him for this failure to

testify and present evidence.

Notably, Respondent Piotrowski did not immediately move to appoint anyone else to the

position of working crew chief until the March 7, 2011 meeting. (Tr. Page 41 line 23 through

page 42 line 6). This is corroborated by the Minutes of the February 7, 2011 and March 7, 2011

meetings of the West Seneca Town Board (Exhibit E page 11 and Exhibit F pages 3 and 4

attached to the Verified Reply). At no time did Respondent Piotrowski offer evidence to explain

this delay in nominating someone other than Michael Meegan to the position of working crew

chief. This leads one to the conclusion that if Respondent Piotrowski had moved to appoint

someone else to the position of working crew chief on February 7, 2011 that he would lose the

leverage he had over Council Member Meegan in order to obtain an appointment to town

prosecutor for Joe Lorigo.

Because Mrs. Meegan would financially benefit on the vote to promote her husband she

was required to abstain from voting on that question (General Municipal Law Article 18).

Respondent Piotrowskis offer to Mrs. Meegan to vote for her husbands promotion in exchange

for her vote for the appoint Joe Lorigo to the position of town prosecutor constitutes a bribe offer

within the contemplation of Penal Law 200.00, 200.45.

For this act of misconduct alone Respondent Piotrowski should be removed from office.


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RESPONDENTS ALLEGED DEFENSES TO THIS PROCEEDING

Respondents allege that the Petition is barred by the doctrine of laches (Respondent

Bieleckis Fourth Defense and Respondent Piotrowskis Fifth Defense asserted in their

respective Verified Answers). "The defense of laches requires both delay in bringing an action

and a showing of prejudice to the adverse party" (Summers v City of Rochester, 60 AD3d 1271,

1273, 875 N.Y.S.2d 658) and, here, Respondents have failed to plead, let alone demonstrate an

ability to prove, that they were prejudiced by any delay (see Matter of Mergenhagen, 50 AD3d

1486, 1487, 856 N.Y.S.2d 389). The party asserting this defense must establish prejudice by

reason of a change in circumstances making it inequitable to grant the relief being sought. The

party interposing a laches defense must establish an injury, change in position, loss of evidence

or prejudice resulting from the delay. Reed v. Reed, 195 A.D.2d 451, 599 N.Y.S.2d 847 (2nd

Dept. 1993); and Thurmond v. Thurmond, 155 A.D.2d 527, 547 N.Y.S.2d 385 (2nd Dept. 1989).

The Respondents have failed to present any evidence establishing any of these elements.

Despite the upcoming election for West Seneca Town Supervisor, if Respondent

Piotrowski is reelected he is still subject to removal for these acts. "It is well settled that a public

official may be removed from office for acts of malfeasance committed during a prior term of

office (see, Matter of Phillips v Dally, 143 AD2d 273; Matter of Abare v Hatch, 21 AD2d 84,

86)." West v. Grant, 243 A.D.2d 815, 817 (N.Y. App. Div. 3d Dep't 1997).

In the event Respondent Piotrowskis is reelected it will not act as a bar to his removal in

this instance because the allegations raised in this proceeding have not been ruled upon as being

true as of yet nor admitted to be true by Respondent Piotrowski before the election and he has


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steadfastly maintained that this was a baseless and frivolous proceeding. Consequently the

"condonation" or "full disclosure" principle is inapplicable in this proceeding (Application of

Baker, 87 Misc. 2d 592, 595).

On the other hand if Respondent Piotrowski is not reelected and this matter comes before

the Court after January 1, 2012 it will be rendered moot as against him (De Falco v. Doetsch,

208 A.D.2d 1047, 1048).

Similarly if Respondent Bielecki is not re-appointed to the position of Town Comptroller

in January 2012 this proceeding will be rendered moot as against him.

The remaining alleged defenses do not act as a bar to this proceeding nor do they act to

mitigate Respondents respective culpability and should be dismissed for the reasons set forth in

Petitioners Verified Reply. For example Respondent Piotrowski points to the fact that I have

not commenced a similar proceeding against Council Member Sheila Meegan as somehow

negating his culpability in this matter. Respondent Piotrowski contends that Council Member

Meegan engaged in some type of misconduct by seconding the appointment of her husband to

the position of working crew chief at the March 7, 2011. Even he did not see anything wrong

with this at that time because as the presiding officer he did not rule that motion out of order on

that, or any other, ground (Town Law 63; Town Bd. v. Hallock, 2 Misc. 3d 826). However,

even if there was some wrong committed by Council Member Meegan it would not negate or

mitigate Respondent Piotrowskis culpability for his acts and omissions as detailed above.

CONCLUSION

Removal is a "drastic remedy" reserved for "'unscrupulous conduct or gross dereliction of

duty' or [conduct that] . . . 'connote[s] a pattern of misconduct and abuse of authority'" (Matter of


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Chandler v Weir, 30 AD3d 795, 796, 817 NYS2d 194 [2006] [citations omitted]; see Matter of

McCarthy v Sanford, 24 AD3d 1168, 1168-1169, 807 NYS2d 431 [2005]).

Removal is appropriate in this case. On the first cause of action asserted against

Respondents Piotrowski and Bielecki. In Williams v. Travis, 194 A.D.2d 969 (N.Y. App. Div.

3d Dep't 1993) it was established that the "respondent had failed to attend the last 27 meetings

of the board, had failed either directly or indirectly to participate in the conduct of the affairs of

the board, and refuses to resign his office as commissioner." The Court removed the Respondent

in that case finding "The uncontroverted allegations in the pleadings demonstrate that respondent

has been grossly derelict in his duties. Such dereliction amounts to misconduct warranting his

removal." It should also be noted that it is the opinion of the State Comptroller that "[u]nder this

section a supervisor may be removed from office for willfully refusing to perform the duties of

his office as required by law (13 Opns St Comp, 1957, p 250). Although administrative

oversights in the performance of one's duties would not warrant removal, intentional disregard of

official responsibilities would. (In re Pisciotta, 41 AD2d 949, 343 NYS2d 992 [1973]). " 1982

N.Y. Comp. LEXIS 479; 1982 N.Y. St. Comp. 313. Also in the case of Gumo v. Canzoneri, 263

A.D.2d 456 the Court held that a pattern of routine disregard of mandates of the law and

procedure is suggestive of a gross dereliction or intentional disregard of duties that could justify

removal.

An act of intentional wrongdoing, moral turpitude or violation of public trust is sufficient

to support removal of Respondent Piotrowski on the second cause of action asserted against him

(Smith v. Perlman, 105 A.D.2d 878).

In this case the evidence establishes that there was a complete disregard by the

Respondents of their respective duties under Town Law 119, 123, 125 at least for the period


31/31

covering January 1, 2008 through August 2010 that resulted in the breakdown in the financial

checks and balances established under Article 8 of the Town Law. It has also been established

that Respondent Piotrowski committed an act of misconduct as proscribed by the Penal Law as

detailed above.

Based on the above the referees findings of fact as found in 1 & 2 on Page 3 of the

Referees report should be confirmed and the finding of fact as found in 3 on Page 3 through

Page 4 should be rejected and Respondent Bielecki and/or Respondent Piotrowski should be

removed from office.

DATED: September 22, 2011Buffalo, New York

Yours, etc.

____________________________Daniel T. WarrenPetitioner, Pro Se836 Indian Church RoadWest Seneca, New York 14224

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