SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : FOURTH DEPARTMENT

:
: MEMORANDUM OF LAW IN SUPPORT
In the Matter of the Application pursuant to : OF MOTION
Public Officers Law§ 36 by : FOR AN ORDER DIRECTING THE CLERK
: OF THIS COURT TO ACCEPT FOR FILING
Daniel T. Warren : PETITIONER’S VERIFIED REPLY,
Petitioner, : DISMISS VARIOUS DEFENSES AND
: ALLEGATIONS ASSERTED IN THE
for the removal of : RESPECTIVE VERIFIED ANSWERS OF
: THE RESPONDENTS PURSUANT TO
Robert J. Bielecki from the office of : CPLR§§404(b), 3211(b); IMPOSING
Comptroller of the Town of West Seneca, Erie : SANCTIONS PURSUANT TO 22 NYCRR
County, New York; and : PART 130 ON RESPONDENT
: PIOTROWSKI AND/OR HIS COUNSEL,
Wallace C. Piotrowski from the office of : FOR THE COURT TO TAKE JUDICIAL
Budget Officer and Supervisor of the Town of : NOTICE OF CERTAIN PUBLIC
West Seneca, Erie County, New York, : DOCUMENTS AND FOR AN EXTENSION
Respondents. : OF TIME TO SERVE AND FILE
: PETITIONER’S BRIEF
:
: Docket # OP 11-00539
:
:

A VERIFIED REPLY MAY BE ACCEPTED FOR FILING BY THE CLERK WITHOUT LEAVE OF COURT

The Clerk of this Court improperly rejected Petitioner’s Verified Reply presented to her

office for filing on the grounds that leave of court is required pursuant to CPLR§ 402.

Leave of Court is not required for a verified reply in a special proceeding. CPLR§ 402

specifically states that “There shall be a reply to a counterclaim denominated as such and there

may be a reply to new matter in the answer in any case.” Further CPLR§ 404(b) provides that “The

petitioner may raise an objection in point of law to new matter contained in the answer by

setting it forth in his reply . . .”

Leave of Court is not needed for a petition, answer or reply (See: Zenosky v. Graziani,

288 A.D.2d 843 (4th Dept. 2001)).

Lastly, it should be noted that the Respondents were served this Verified Reply on May

6, 2011 and have retained it without objection and therefore they have waived any defects in it.
 CERTAIN DEFENSES CONTAINED IN THE RESPECTIVE VERIFIED ANSWERS OF THE
RESPONDENTS SHOULD BE DISMISSED PURSUANT TO CPLR §§ 404(B), 3211(B)

CPLR§ 404(b) provides that a "petitioner may raise an objection in point of law to new

matter contained in the answer by setting it forth in his reply or by moving to strike such matter .

. ." For the purposes of this motion Petitioner will assume that the First Defense contained in the

respective Verified Answers of the Respondents are asserting that the Verified Petition fails to

state a cause of action and is mere surplusage (Butler v. Catinella, 58 A.D.3d 145).

RESPONDENT PIOTROWSKI’S SECOND DEFENSE ASSERTED IN HIS VERIFIED REPLY

SHOULD BE DISMISSED AND SANCTIONS IMPOSED UPON RESPONDENT PIOTROWSKI

The Second Defense fails to set forth a valid defense to the Petition herein. Even

assuming the truth of its allegations, as the court is required to do, it fails state any valid defense

that would act to negate or mitigate Respondent Piotrowski’s liability for his conduct as alleged in

the Verified Petition and therefore should be dismissed.

The fact that I have challenged other government actions with varying degrees of success

is irrelevant to whether this proceeding will succeed or not. Merely because an action is

unsuccessful, does not mean that it is necessarily frivolous or was without merit. These other

actions do not impair this proceeding because the obvious lack of identity of the parties or the

complete absence of identity of fact or law so as to implicate principles of estoppel or res

judicata. In fact even in this allegation Respondent makes various misrepresentations for

example in citing Warren v. Giambra, 12 Misc.3d 650 he alleges that there was a claim for

damages, there was not, also while I was denied a permanent injunction against the legislature

the court did declare that a number of meetings held by the county legislature to have been held

in violation of the Open Meetings Law. Another example is Upstate Citizens for Equality, Inc,

et al v. Salazar, et al the court only granted a partial motion to dismiss and this action is still

pending before that court, I am also represented by counsel in this action. This allegation is also
irrelevant to the controversy at hand and apparently Respondent Piotrowski makes a leap of

judgment of not only his own actions but also the actions of the Executive and Legislative

branches on each and every level of government. It is the Judiciary that determines what the law

is and whether an act of a co-equal branch of government is lawful.

Respondent Piotrowski as part of this defense alleges that I regularly post messages

regarding political issues in internet forums and have long been a political adversary of

Respondent Piotrowski’s and that I posted a copy of the Verified Petition in this proceeding on

the internet prior to it being served on Respondent Piotrowski. These allegations are not relevant

to the controversy at hand which is Respondent’s misconduct and gross dereliction of duty as

alleged in the Verified Petition. Perhaps Respondent Piotrowski does not believe in the freedom

of speech. Respondent Piotrowski should know after being on the bench in the West Seneca

Town Court for over a decade that there is no statute, rule or regulation prohibiting making the

Verified Petition in this proceeding public after it has been filed in the Court Clerk’s Office, in

fact it is to the contrary and they are open to the public (POL§ 66, Judiciary Law§§255, 255-b,

General Municipal Law§51; Werfel v. Fitzgerald, 23 A.D.2d 306, 310 (N.Y. App. Div. 2d Dep't

1965) [These statutes manifest in our opinion the general policy of our State "to make available

to public inspection and access all records or other papers kept 'in a public office,' at least where

secrecy is not enjoined by statute or rule" ( Matter of New York Post Corp. v. Leibowitz, 2 N Y

2d 677, 686)])

The fact that others may have committed other wrongs as alleged by Respondent

Piotrowski in ¶ 63 of his Verified Answer pertaining to this Second Defense has no bearing on

Respondent Piotrowski’s liability for his conduct as alleged in the Verified Petition. These

allegations are raised by Respondent Piotrowski in an apparent attempt to disparage Council

Member Meegan without affording her the opportunity to defend against them. If Mr.

Piotrowski feels that another individual has acted illegally he may either move for leave to add

them as parties and serve a cross-claim on them or commence his own independent proceeding
wherein those he accuses of wrongdoing will have an opportunity to defend against his charges.

This defense also attempts to link me politically and personally to Council Member

Meegan and that I brought this proceeding for his removal as part of some perceived conspiracy

against him. Even assuming that this is true, as the court must at this stage, does not negate or

mitigate his liability for his conduct as alleged in the Verified Petition.

SANCTIONS SHOULD BE IMPOSED AGAINST RESPONDENT PIOTROWSKI

AND/OR HIS COUNSEL OF RECORD

This defense is frivolous and is completely without merit in law and cannot be supported

by a reasonable argument for an extension, modification or reversal of existing law. This defense

was also interposed solely to harass, annoy or maliciously injure the Petitioner and non-party

Council Member Meegan.

Courts may impose reasonable costs or sanctions for frivolous conduct, namely conduct

which "is completely without merit in law and cannot be supported by a reasonable argument for

an extension, modification or reversal of existing law" (22 NYCRR 130-1.1 [c] [1]; see Citibank

[S.D.] v Alotta, 277 AD2d 547, 548-549, 715 NYS2d 530 [2000]) or that "is undertaken

primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure

another" (22 NYCRR 130-1.1 [c] [2]). This conduct is also a violation of DR 7-102 (a) (1) (22

NYCRR 1200.33 [a] [1] --filing a suit or asserting a position on behalf of a client when he knows

or when it is obvious that such action would serve merely to harass or maliciously injure another)

and DR 7-102 (a) (2) (22 NYCRR 1200.33 [a] [2]-- knowingly advancing a claim that is

unwarranted under existing law that cannot be supported by good faith argument for an

extension, modification or reversal of existing law). In considering whether specific conduct is

frivolous, courts are required to examine "whether or not the conduct was continued when its

lack of legal or factual basis was apparent [or] should have been apparent" (22 NYCRR 130-1.1

[c]).

Respondent Piotrowski is an attorney duly admitted to practice before the courts of this
state since 1987.

Mr. Powers, Respondent Piotrowski’s counsel, is a well respected and experienced

attorney.

If the lack of factual or legal merit of this defense was not apparent when the Verified

Answer was interposed, which is sworn to under oath by Respondent Piotrowski and signed in

accordance with 22 NYCRR§ 130-1.1A, it should have been after the receipt of my Verified

Reply on or about May 6, 2011. However, to this date I have not had any communication

offering to withdraw this defense.

While I do not believe that Mr. Powers would have asserted this frivolous defense and

pursued this course of frivolous conduct on his own and that this conduct was undertaken at the

behest of his client, there is a duty upon the attorney to make an analysis of the case in the

context of the entire record and make a determination of merit independent of the wishes of the

client when determining what claims to interpose in an action or proceeding. (Heilbut v. Heilbut,

18 AD3d 1, 792 N.Y.S.2d 419 (1st Dept. 2005)).

RESPONDENT PIOTROWSKI’S THIRD DEFENSE AND RESPONDENT BIELECKI’S SECOND

AFFIRMATIVE DEFENSE SHOULD BE STRICKEN

The Respondent’s assert that since I do not possess personal knowledge that the Petition

should be dismissed for failure to state a claim under POL§ 36 since it is based on inadmissible

hearsay. While it is true that I lack personal knowledge except as to those parts of the petition

where I specifically state that I was present and observed certain statements the public

documents attached to the Verified Petition are in admissible form and are sufficient to base a

cause of action upon. It should also be noted that the only one who have exclusive knowledge of

these facts are the Respondent’s herein.

This defense as asserted in the Respective Answers of the Respondents are duplicative of

their first defense asserting a failure to state a claim upon which relief may be granted.
 RESPONDENT PIOTROWSKI’S FOURTH DEFENSE AND RESPONDENT BIELECKI’S THIRD
AFFIRMATIVE DEFENSE SHOULD BE STRICKEN

The defense as asserted in the Respondent’s respective Verified Answers that assert that

the allegations in the Verified Petition should be dismissed based upon the same arguments set

forth above relative to Respondent Piotrowski’s Third Defense and Respondent Bielecki’s Seconf

Affirmative Defense.

RESPONDENT BIELECKI’S FOURTH DEFENSE AND

RESPONDENT PIOTROWSKI’S FIFTH DEFENSE SHOULD BE DISMISSED

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

Bielecki’s Fourth Defense and Respondent Piotrowski’s 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). This

defense as asserted in the respective answers of the Respondents is set forth in a conclusory

manner without any factual allegations to support it and should be stricken on this basis alone

(see Bentivegna v Meenan Oil Co., 126 AD2d 506, 510 N.Y.S.2d 626; Glenesk v Guidance

Realty Corp., 36 AD2d 852, 321 N.Y.S.2d 685). The Verified Petition is based on a report of the

NYS Office of the Comptroller released to the public in September 2010 on the first cause of

action and in the case of the second cause of action on events that transpired in February and

March of 2011 so the Respondents have failed to demonstrate that Petitioner unduly delay in
bringing this proceeding in March 2011.

PETITIONER’S REQUEST FOR JUDICIAL NOTICE

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

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)).

At least one court in this district has also taken judicial notice of material downloaded

from a government website in Proscan Radiology of Buffalo v. Progressive Cas. Ins. Co., 2006

NY Slip Op 51242U, 6 (Buffalo City Ct. 2006).

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

documents downloaded from government websites:

 · The following documents attached as exhibits to the Verified Petition:

o Exhibit “1”downloaded from the website of the Office of the New York State

Comptroller

o Exhibits “2”,“3”,“4” &“5” downloaded from the website of the Town of West Seneca,

New York

· 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.

PETITIONER’S REQUEST FOR AN EXTENSION OF TIME PURSUANT TO CPLR § 2004

CPLR§ 2004 provides that “[e]xcept where otherwise expressly prescribed by law, the

court may extend the time fixed by any statute, rule or order for doing any act, upon such terms

as may be just and upon good cause shown, whether the application for extension is made before

or after the expiration of the time fixed.”

A court enjoys broad discretion when considering such motion where, as here, the motion

precedes the time for doing any act ( General Acc. Group v Scott, 96 AD2d 759, appeal

dismissed 60 NY2d 651; see also, A & J Concrete Corp. v Arker 54 NY2d 870, 872; Dolgin

Enters. v Central Adj. Bur., 118 AD2d 680, 681).

The respondents will suffer no prejudice if this relief is granted. This matter is currently

scheduled to be heard during the September 6, 2011 term of this court. The Court of Appeals has

stated that prejudice“must be some indication that the [opposing parties] has been hindered in the

preparation of his case or has been prevented from taking some measure in support of his

position (Wyman v Morone, 33 AD2d 168, 172 [Cooke, J, dissenting], supra)." Loomis v.

Civetta Corinno Constr. Corp., 54 N.Y.2d 18, 23-24 (N.Y. 1981).

DATED: May 27, 2011
Buffalo, New York

Yours, etc.

____________________________
Daniel T. Warren
Petitioner, Pro Se
836 Indian Church Road
West Seneca, New York 14224