DW-RJB-WCP-reply

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SUPREME COURT OF THE STATE OF NEW YORKAPPELLATE DIVISION : FOURTH DEPARTMENT

In the Matter of the Application pursuant to

Public Officers Law 36 by

Daniel T. WarrenPetitioner,

for the removal of

Robert J. Bielecki from the office of Comptroller of the Town of West Seneca, ErieCounty, New York; and

Wallace C. Piotrowski from the office of Budget Officer and Supervisor of the Town of West Seneca, Erie County, New York,

Respondents.

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VERIFIED REPLY

Docket # OP 11-00539

Petitioner, Daniel T. Warren, as and for his reply to the respective Verified Answers of RespondentsBielecki and Piotrowski herein alleges:

1. Respondents Bielecki and Piotrowski assert in their respective Verified Answers that thepetition is based on inadmissible hearsay. However, Petitioner has attached copies of publicdocuments as exhibits to his petition and they are in admissible form.

2. Exhibit "1" annexed to the Verified Petition is a government record maintained and kept by theState of New York Office of the State Comptroller on its official government web site.Therefore the information contained in the document is an exception to the hearsay rule underCPLR 4518(a), business records exception and under State Technology Law 306 and theCommon-Law Hearsay Exception for Public Documents (See Miriam Osborn Mem. HomeAssn. v. Assessor of City of Rye, 9 Misc. 3d 1019, 1027 (N.Y. Sup. Ct. 2005)). Additionallythis document contains statements made in writing by the Respondents and is admissibleagainst them. See: People v. Caban, 5 N.Y.3d 143, 151 (N.Y. 2005) ("Plainly, defendant's ownstatements could be received in evidence as party admissions (see People v Chico, 90 N.Y.2d585, 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, wheneveror 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 evidenceagainst the party at trial"]). ").

3. Exhibits 2, 3, 4, & 5 annexed to the Verified Petition are government recordsmaintained and kept by the Town of West Seneca on its official government web site.


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Therefore the information contained in the documents fall under an exception to the hearsayrule under CPLR 4518(a), business records exception and under State Technology Law 306 and the Common-Law Hearsay Exception for Public Documents (See Miriam Osborn Mem.Home Assn. v. Assessor of City of Rye, supra). The Statements in these exhibits that areattributed to, and made by, West Seneca Town Council members Clarke and Meegan are

admissible because the Town Clerk, Patricia DePasquale recorded them herself based upon herpersonal knowledge in the performance of her duties, and the information imparted to her bythem were under a business duty to do so by virtue of their official position with the Town of West Seneca. Statements made by either Respondent to these proceedings that are contained inthese exhibits are also admissible as a statement of a party opponent.

4. Exhibits 1. 2, 3, 4, & 5 annexed to the Verified Petition are also admissible underthe common-law hearsay exception rule for official written statements, often called the"official entries" or "public document" rule. The common-law rule, which is much broader inscope, has not been superseded by CPLR 4520 (see Richards v. Robin, 178 App. Div. 535,539; see, also, 5 Weinstein-Korn-Miller, N. Y. Civ. Prac., par. 4520.01; 5 Wigmore, Evidence[3d ed.], 1638a, n. 1; Practice Commentary on CPLR 4520 in McKinney's Cons. Laws of N.Y., Book 7B, p. 480). Additionally Petitioner respectfully request that the Court take JudicialNotice of these documents.

5. Exhibit 6 attached to the Verified Petition is an article that appeared in The Buffalo News, anewspaper of general circulation and is self-authenticated pursuant to CPLR 4532 thatcontains statements made by Respondent Piotrowski and is therefore admissible for the samereason their written statements to the State Comptrollers report contained in Exhibit 1 are asset forth above. Additionally, this document is under an exception to the hearsay rule underCPLR 4518(a), business records exception and under State Technology Law 306 (SeeMiriam Osborn Mem. Home Assn. v. Assessor of City of Rye, supra).

6. Exhibit 7 attached to the Verified Petition is an article that appeared in The Buffalo News, anewspaper of general circulation and is self-authenticated pursuant to CPLR 4532 and isadmissible under an exception to the hearsay rule under CPLR 4518(a), business recordsexception and under State Technology Law 306 (See Miriam Osborn Mem. Home Assn. v.Assessor of City of Rye, supra).

7. Out of an abundance of caution Petitioner has currently before the Court a motion for asubpoena duces tecum pursuant to CPLR 2307 to obtain a copy of Exhibit 1 to the VerifiedPetition together with any and all documents, notes, memoranda, correspondence. e-mails, andother materials in the State Comptrollers possession that this report was based upon in wholeor part.

8. Additionally, out of an abundance of caution Petitioner has obtained from the West SenecaTown Clerk certified copies of the minutes that Petitioner attached to the Verified Petition andadditionally the Minutes relied upon Respondent Piotrowski attached as Exhibit A to hisVerified Answer.

9. Attached hereto and Marked as Exhibit A is a certified copy of the minutes of the WestSeneca Town Boards meeting held on January 14, 2008.


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10. Attached hereto and Marked as Exhibit B is a certified copy of the minutes of the WestSeneca Town Boards meeting held on March 2, 2009.

11. Attached hereto and Marked as Exhibit C is a certified copy of the minutes of the WestSeneca Town Boards meeting held on August 16, 2010.

12. Attached hereto and Marked as Exhibit D is a certified copy of the minutes of the WestSeneca Town Boards meeting held on September 20, 2010.

13. Attached hereto and Marked as Exhibit E is a certified copy of the minutes of the WestSeneca Town Boards meeting held on February 7, 2011.

14. Attached hereto and Marked as Exhibit F is a certified copy of the minutes of the WestSeneca Town Boards meeting held on March 7, 2011.

15. Exhibits A, B, C, D, E, & F attached hereto are admissible pursuant to CPLR 4518(c), 4520, 4540 and under the common-law hearsay exception rule for official writtenstatements, often called the "official entries" or "public document" rule. Additionally Petitioner

respectfully request that the Court take Judicial Notice of these documents.

16. In reply to paragraph 29 of Respondent Piotrowskis Verified Answer, Petitioner is notpersonally or politically allied with Councilmember Sheila Meegan. Respondent Piotrowskisperception of an alliance stems from his apparent assertion that this is true because it appears tohim I knew of her candidacy first and did not disclose my source of this information.However, I did disclose the source of my information; The Buffalo News article published onMarch 8, 2011 and attached as Exhibit 7 to the Verified Petition reports that CouncilwomanSheila M. Meegan, who has said she will challenge Piotrowski for supervisor .

17. Petitioner objects in point of law pursuant to CPLR 404(b) to the following paragraphs of Respondent Piotrowskis Verified Answer on the grounds that it contains irrelevant,

inadmissible opinion and inflammatory, prejudicial and scandalous allegations and/or needlesscommentary that he has unnecessarily inserted in his Answer: 56, 57, 58, 59, 60, 61, 62, 64, 65,66, 67 & 68. In the event that this objection is overruled Petitioner requests that he be providedwith an opportunity to supplement this Verified Reply to respond to these allegations.

18. In reply to paragraph 63 of Respondent Piotrowskis Verified Answer it is true that I do notmake any allegations against Sheila Meegan in this proceeding. I did not learn of the eventsthat occurred at the March 7, 2011, meeting of the West Seneca Town Board until well afterthe filing of the Verified Petition on March 16, 2011. It is the practice of the West SenecaTown Clerk to not publicly publish the minutes of the Town Board until they are approvedabsent a FOIL request as evidenced by the e-mail exchange between the Town Clerk andPetitioner contained in Exhibit 5 attached to the Verified Petition as well as my comments at

the January 14, 2008 meeting of the West Seneca Town Board (Page 4 of Exhibit A attachedhereto and Exhibit 2 attached to the verified Petition at page 6.).

19. Petitioner objects in point of law pursuant to CPLR 404(b) to Respondent PiotrowskisPiotrowskis Second Defense on the ground that a defense is not stated and/or has no meritbecause the fact, even if proven true, that another person has committed some type of perceived wrong and petitioner did not include them as a Respondent in this proceeding orotherwise moved against them is not relevant unless such conduct would mitigate or negatePetitioners claim against Respondent Piotrowski in this proceeding. In the event that this


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objection is overruled Petitioner requests that he be provided with an opportunity tosupplement this Verified Reply to respond to these allegations.

20. Petitioner objects in point of law pursuant to CPLR 404(b) to Respondent Piotrowskis ThirdDefense on the ground that it is duplicative of his First Defense. In the event that this objectionis overruled Petitioner requests that he be provided with an opportunity to supplement thisVerified Reply to respond to these allegations.

21. Petitioner objects in point of law pursuant to CPLR 404(b) to Respondent PiotrowskisFourth Defense on the ground that it is duplicative of his First Defense. In the event that thisobjection is overruled Petitioner requests that he be provided with an opportunity tosupplement this Verified Reply to respond to these allegations.

22. Petitioner objects in point of law pursuant to CPLR 404(b) to Respondent Piotrowskis FifthDefense on the ground that a defense is not stated and/or has no merit. In the event that thisobjection is overruled Petitioner requests that he be provided with an opportunity tosupplement this Verified Reply to respond to these allegations.

23. Petitioner objects in point of law pursuant to CPLR 404(b) to Respondent Bielecks SecondAffirmative Defense on the ground that it is duplicative of his First Affirmative Defense. In theevent that this objection is overruled Petitioner requests that he be provided with anopportunity to supplement this Verified Reply to respond to these allegations.

24. Petitioner objects in point of law pursuant to CPLR 404(b) to Respondent Bielecks ThirdAffirmative Defense on the ground that it is duplicative of his First Affirmative Defense. In theevent that this objection is overruled Petitioner requests that he be provided with anopportunity to supplement this Verified Reply to respond to these allegations.

25. Petitioner objects in point of law pursuant to CPLR 404(b) to Respondent Bielecks FourthAffirmative Defense on the ground that a defense is not stated and/or has no merit. In the event

that this objection is overruled Petitioner requests that he be provided with an opportunity tosupplement this Verified Reply to respond to these allegations.

WHEREFORE, your petitioner prays that Robert J. Bielecki be removed from the office of Comptroller of the Town of West Seneca, Erie County, New York; and/or Wallace C. Piotrowski beremoved from the office of Budget Officer and Supervisor of the Town of West Seneca, Erie County,New York.

DATED: May 6, 2011Buffalo, New York

Yours, etc.

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


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State of New York )County of Erie ) ss:City of Buffalo )

I, Daniel T. Warren, am the Petitioner in the within proceeding. I have read the foregoingreply and know the contents thereof. The contents are true to my own knowledge except as to matterstherein stated to be alleged upon information and belief, and as to those matters I believe them to betrue.

________________________________Daniel T. Warren

Sworn to before me this__ day of May, 2011

__________________________Notary Public


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EXHIBIT A


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EXHIBIT F


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Date post:	08-Apr-2018
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