DW-RJB-WCP-Xmot-Confirm-083111

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

In the Matter of the Application pursuant toPublic Officers Law 36 by

Daniel T. WarrenPetitioner,

for the removal of

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

Wallace C. Piotrowski from the office ofBudget Officer and Supervisor of the Town of

West Seneca, Erie County, New York,Respondents.

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NOTICE OF CROSS-MOTIONFOR AN ORDER CONFIRMING THEREFEREES REPORT IN PART ANDREJECTING THE REPORT IN PART

Docket # OP 11-00539

Please take notice that upon the affidavit of Daniel T. Warren, duly sworn to the 31st

day

of August, 2011, and the exhibits attached thereto and the pleadings and proceed had heretofore

had herein, the undersigned will cross-move the Supreme Court, Appellate Division, Fourth

Department, at a Special Term to be held at its courthouse in the City of Rochester, New York,

on the 6th day of September, 2011, at the opening of the Court on that day, or as soon thereafter

as counsel may be heard, for an order:

a) Confirming in part and rejecting in part the Referees Report filed in thisproceeding;

b) Summary determination pursuant to CPLR 409(b) and/or judgment pursuant toCPLR 411 on the merits and removing the Respondent Piotrowski and/or

Respondent Bielecki from office forthwith;

c) Such other, further or different relief as the Court deems just and proper.


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Please Take Further Notice that this motion will be submitted without oral argument (see

22 NYCRR 1000.13 [a] [6]).

Please Take Further Notice that answering affidavits, if any, must be filed with the Court

on or before the Friday preceding the return date.

DATED: August 31, 2011Buffalo, New York

Yours, etc.

____________________________Daniel T. Warren

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


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

In the Matter of the Application pursuant toPublic Officers Law 36 by

Daniel T. WarrenPetitioner,

for the removal of

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

Wallace C. Piotrowski from the office ofBudget Officer and Supervisor of the Town of

West Seneca, Erie County, New York,Respondents.

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AFFIDAVIT IN SUPPORT OF CROSS-MOTION FOR AN ORDER CONFIRMINGTHE REFEREES REPORT IN PART ANDREJECTING THE REPORT IN PART AND

IN OPPOSITION TO RESPONDENTSMOTION TO SEAL, STRIKE AND/OR

REJECT THE REFEREES REPORT

Docket # OP 11-00539

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

Daniel T. Warren, being duly sworn, deposes and says:

1. I am the petitioner in the within proceeding and I am fully familiar with the facts andcircumstances of this proceeding.

2. I submit this affidavit in support of my motion for an order confirming in part andrejecting in part the Referees report and for a summary determination pursuant to CPLR 409(b) and/or judgment pursuant to CPLR 411 on the merits and removing theRespondent Piotrowski and/or Respondent Bielecki from office forthwith.

3. This is a proceeding to remove Respondents Bielecki and Piotrowski from theirrespective offices of the Town of West Seneca, New York.

4. Attached hereto and marked as Exhibit 1 is a copy of my Verified Reply verified onMay 6, 2011.

5. Attached hereto and marked as Exhibit 2 is a true copy of all the prior orders entered inthis proceeding.

Wherefore your deponent prays for an order of this Court:

a) Confirming in part and rejecting in part the Referees Report filed in this


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proceeding;



c) Such other, further or different relief as the Court deems just and proper.d) the order issued by Justice Fahey sealing the referees report should be vacated

forthwith and the Respondents motion insofar as it seeks to permanently seal the

Referees report should be denied;

e) Respondents motions to reject the Referees report should be denied in itsentirety.

_________________________________Daniel T. Warren

Sworn to before me this____day of August, 2011

_______________________________Notary Public


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malfeasance, maladministration or malversation on the part of respondents and such proof must

be established by a preponderance of the evidence. Application of Baker, 87 Misc. 2d 592, 597

(N.Y. Sup. Ct. 1976) Petitioner has established a pattern of intentional and reckless wrongdoing,

and breach of trust sufficient to warrant the relief requested in the petition (see, e.g., Matter of

Swope v Kean, 71 AD2d 972, 419 N.Y.S.2d 792; De Falco v. Doetsch, 208 A.D.2d 1047; cf.,

Matter of Deats v Carpenter, 61 AD2d 320, 322, 403 N.Y.S.2d 128).

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 (Exhibit 2 attached to the Affidavit of

Daniel T. Warren. dated August 31, 2011) 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); [*11] 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 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


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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; 5 McQuillin, Municipal Corporations 14.07, at 17-18 [3d ed 1988]; 6

McQuillin, id., 22.42, at 491-493).

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

documents downloaded from government websites:

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

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

from the West Seneca Town Clerk.

EVIDENCE OF RECORD SUPPORTS THE REFEREES FINDINGS

CONCERNING RESPONDENTS BIELECKI AND PIOTROWSKI

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 was admitted into evidence at the hearing

before the referee. This is also Exhibit N attached to the Affidavit of Michael B. Powers, Esq.

dated August 26, 2011. 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


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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 (References to the transcript is to that transcript attached as

Exhibit B to the Affidavit of Michael B. Powers, Esq. dated August 26, 2011)). 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).

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


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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.

Additionally this document 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 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).


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Town Law 119 requires the Town Comptroller, in this case Respondent Bielecki, to

cause each claim presented to him for audit to be numbered consecutively, beginning with the

number one in each year and to be stamped or otherwise marked with the date of presentation.

The claims shall be available for public inspection at all times during office hours. The town

comptroller shall not be required to audit any claim until thirty days after presentation to him.

The town comptroller may, in considering a claim, require any person presenting the same to be

sworn before him, relative to the justness and accuracy of such claim, and may take evidence and

examine witnesses in respect to the claim and for that purpose the town comptroller may issue

subpoenas for the attendance of witnesses, except as otherwise provided by law. 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. No fund and no appropriation account shall be overdrawn nor

shall any warrant be drawn against one fund or appropriation account to pay a claim chargeable

to another fund or appropriation account. It shall be the duty of the town comptroller to keep a

separate account with each appropriation for expenditure for which funds are appropriated or

raised by tax, in such manner as the state department of audit and control may direct and

determine.

Town Law 125 provides that the Supervisor, in this case Respondent Piotrowski, can

not pay out any money except upon the warrant, order or draft of the town comptroller, after

audit and allowance thereof.

According to the Report of the State Comptroller, Respondent Bielecki did not properly

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

well. Specifically the report states that The Comptroller did not perform a proper audit of


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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 10, paragraph 2, of Exhibit N of the Affidavit of

Michael B. Powers dated August 26, 2011). As much as Respondent Bielecki, while not

disputing that this 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, ofExhibit N of the Affidavit of Michael B. Powers dated

August 26, 2011). 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 him for

payment nor does he explain why he did not. Even assuming the failure of WNY Americorps to

failure 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

32 note 2 of Exhibit N of the Affidavit of Michael B. Powers dated August 26, 2011.

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


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requirement. (Page 10, paragraph 3, ofExhibit N of the Affidavit of Michael B. Powers dated

August 26, 2011). Despite this finding neither Respondent Bielecki nor Respondent Piotrowski

dispute it in their respective responses to the State Comptrollers report. In a conclusory and

self-serving fashion Respondent Bielecki in paragraph 11 of his Verified Answer (Exhibit J of

the Affidavit of Michael B. Powers dated August 26, 2011) asserts that he has always submitted

proof of auditing claims. However, he fails to state whether ornot 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 (Exhibit I of the Affidavit of Michael B. Powers dated August 26, 2011). Respondent

Bielecki testified that he only started preparing an abstract of claims after the State Comptrollers

report was issued (Tr. Page 21 lines 612).

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


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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

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

decisions." (Page 11, paragraph 3, ofExhibit N of the Affidavit of Michael B. Powers dated

August 26, 2011).

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 forthis 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 11, paragraph 4, of

Exhibit N of the Affidavit of Michael B. Powers dated August 26, 2011 to Page 12, Paragraph


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1).

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

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 12, paragraph 2, of Exhibit N of the Affidavit of Michael B.

Powers dated August 26, 2011).

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 12, paragraph 3, of Exhibit N of the Affidavit of Michael B. Powers dated

August 26, 2011).

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

revenue and expenditure reports with the Town Board (Page 14, paragraph 3, ofExhibit N of

the Affidavit of Michael B. Powers dated August 26, 2011). 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


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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 requested by them. (Page 29, paragraph 3, ofExhibit

N of the Affidavit of Michael B. Powers dated August 26, 2011). The State Comptrollers

office rejected this response on page 32 note 5 ofExhibit N of the Affidavit of Michael B.

Powers dated August 26, 2011 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 1325).

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.

The referees findings of fact as found in 1 & 2 on Page 3 of the Referees report

should be confirmed. Further Respondent Bielecki and/or Respondent Piotrowski should be

removed from office on these findings alone.

THE REFEREES REPORT AS TO THE FINDING SET FORTH IN 3 ON PAGE 3 THROUGH PAGE 4

SHOULD BE REJECTED AND THIS COURT SHOULD FIND THAT RESPONDENT PIOTROWSKI DID

OFFER HIS VOTE IN THE PROMOTION OF COUNCIL MEMBER MEEGANS HUSBAND IN EXCHANGE

FOR HER VOTE TO APPOINT JOE 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


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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 ). 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

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 submitted on this motion as Exhibit

1 to the Affidavit of Daniel T. Warren dated August 31, 2011).

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


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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 submitted on this motion as Exhibit 1 to the Affidavit of Daniel

T. Warren dated August 31, 2011). 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).

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.

This aspect of the Referees report should be rejected and that is should be found that this

fact was established and constitutes misconduct sufficient on its own to warrant the removal of

Respondent Piotrowski.

RESPONDENTS HAD AMPLE OPPORTUNITY TO PRESENT EVIDENCE

The Respondents assert that they were somehow prevented from introducing evidence or

examine Petitioner is meritless and belied by the record. The Respondents apparently took the

trial strategy that what was presented by the time that at the closure ofPetitioners case was

insufficient to warrant their removal and they rested without presenting any evidence or calling

any witnesses (Tr. Page 42 line 22 through Page 43 line 4). The Respondents if they wished to

examine me further could have called me as a witness on their case just as I called Mr.

Piotrowski on my direct case, but they chose not to. They could have elicited testimony from

their respective parties as well, but chose not to.


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APPLICABLE STANDARD FOR SEALING COURT RECORDS

News media and the public have a Federal constitutional right pursuant to the First, Sixth

and Fourteenth Amendments of the US Constitution, a presumptive State constitutional right

under article I, 8 of the New York State Constitution, a statutory right as set forth in Judiciary

Law 4 and Civil Rights Law 12 and common-law right to access to judicial proceedings and

a common-law right to inspect things filed or admitted into evidence therein. ( Globe Newspaper

Co. v Superior Ct., 457 US 596 [1982]; Richmond Newspapers v Virginia, 448 US 555 [1980];

In re National Broadcasting Co. v Myers, 635 F2d 945 [2d Cir 1980]; Matter of Newsday, Inc. v

Sise, 71 NY2d 146, 153, n 4 [1987], cert denied 486 US 1056 [1988]; Matter of Associated Press

v Bell, 70 NY2d 32 [1987]; Matter of Hearst Corp. v Clyne, 50 NY2d 707 [1980]; cf., Fed Rules

Civ Pro, rule 77 [b].)

There is a strong presumption favoring public access to court records. People v. Burton,

189 AD2d 532, 597 N.Y.S.2d 488 (3d Dept. 1993); Doe v. NYU, 6 Misc. 3d 866, 786 N.Y.S.2d

892 (Sup. Ct. 2004). It is believed that public scrutiny of court proceedings and records, is an

important check against corruption and incompetence. Danco Lab., Ltd. v. Chemical Works of

Gedeon Richter Ltd., 274 AD2d 1, 711 N.Y.S.2d 419 (1st Dept. 2000). Privacy is a limited

right, which is not recognized in New York common law ( Roberson v. Rochester Folding Box

Co., 171 N.Y. 538, 64 N.E. 442 [1902]) and exists only to the extent created by statute (

Messenger v. Gruner + Jahr Print. & Publ., 94 N.Y.2d 436, 706 N.Y.S.2d 52 [2000]; Stephano v.

News Group Publs., 64 N.Y.2d 174, 474 N.E.2d 580, 485 N.Y.S.2d 220 [1984]).

This is an original proceeding commenced pursuant to Public Officers Law 36 and

therefore this court is acting as a trial court. 22 NYCRR 216.1 applicable to trial courts

provides that court records shall not be sealed except upon a written finding of good cause

"which shall specify the grounds thereof." The rule further requires the Court to consider the


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competing interests of the public and the parties. Thus, the court must, in the exercise of its

discretion, engage "in a balancing process weighing the potential for harm and embarrassment to

the litigants and public alike . . . ." Coopersmith v. Gold, 156 Misc 2d 594, 606, 594 N.Y.S.2d

521 (citations omitted). The party seeking to seal the records has the burden of establishing the

requisite "good cause." Doe v. NYU, supra 6 Misc. 3d 866, 786 N.Y.S.2d 892 at 899-900.

The allegations contained in the Verified Petition have been publicly disseminated and

discussed since March 2011 and was the topic of articles in both The Buffalo News and The

West Seneca Bee. The results of the New York State Comptrollers report that the petition relies

on and that has been admitted into evidence at the hearing before the referee has been publicly

available and discussed since September 2011. The hearing before the referee was open to the

public and the transcript of that hearing has been available public since July 2011. This

proceeding has been discussed publicly often on the internet. The public has a justifiable,

significant, and legitimate interest in the observation, participation, and comments on trial

events. Denying access to a copy of the Referees report will not prevent or "un-ring" the bell of

publicity that has attended this case.

The Referees Report was disseminated prior to Respondent Piotrowskis application to

strike was converted into one to seal and at no time prior to the issuance to the referees report

had any party to this proceeding sought to seal of any part of these proceedings.

In making the application upon which Justice Fahey temporarily sealed the referees

report and which is available to the public Respondent Piotrowskis attorney Michael B. Powers,

Esq. avered that it is Of most serious concern to respondents is the fact that petitioner will, as

has been his practice over the years, use the Referees report to affect the upcoming primary

election for the Supervisors race in West Seneca on September 13, 2011. ( Powers Affidavit

15 dated August 24, 2011 attached as Exhibit G to the Affidavit ofMichael B. Powers, Esq.

dated August 26, 2011). Respondent Piotrowski claims that by releasing this affidavit (without

the exhibits attached to it) constitutes a violation of Justice Faheys temporary order sealing the


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Referees report or at least its spirit. However, nothing in this affidavit discloses any of the

content of the Referees report, does not quote any of its content or even summarizes which facts

were, or were not, found. The public has a right to know on what grounds any part of a court

record is sealed and why it was asked for.

Likewise, regardless of whether or not this Court confirms or rejects this report in whole

or in part the public at large should know the full reasons therefore.

Given the aforementioned Respondents cannot show the effectiveness of issuing a sealing

order of the Referees report at this juncture nor at all.

The public's interest in this case, both at the time the sealing motion was made and even

now, is substantial. This proceeding involves the acts and omissions of the Respondents, who

are public officers, relative to the public fisc of the Town of West Seneca, New York and their

attorneys are being paid by the taxpayers of the Town of West Seneca.

The First Department has held that "neither the potential for embarrassment or damage to

reputation, nor the general desire for privacy, constitutes good cause to seal court records (see

Liapakis v Sullivan, 290 AD2d 393, 394, 736 N.Y.S.2d 675 [2002]; Matter of Benkert, 288

AD2d 147, 734 N.Y.S.2d 427 [2001]; Matter of Hofmann, 284 AD2d at 94)." Mosallem v

Berenson, 76 A.D.3d 345 (1st

Dep't 2010).

Wherefore an order of this Court should be entered:

a) Confirming in part and rejecting in part the Referees Report filed in thisproceeding;



c) Such other, further or different relief as the Court deems just and proper.d) the order issued by Justice Fahey sealing the referees report should be vacated

forthwith and the Respondents motion insofar as it seeks to permanently seal the


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Referees report should be denied;

e) Respondents motions to reject the Referees report should be denied in itsentirety.

DATED: August 31, 2011Buffalo, New York

Yours, etc.

____________________________Daniel T. WarrenPetitioner, Pro Se836 Indian Church Road

West Seneca, New York 14224716-822-0476

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