FILED: ONONDAGA COUNTY CLERK 02/13/2024 02:27 PM INDEX NO.

000609/2022
NYSCEF DOC. NO. 84 RECEIVED NYSCEF: 02/13/2024

STATE
STATE OF NEW YORK
OF NEW YORK
COURT COUNTY
SUPREME COURT
SUPREME COUNTY OF
OF ONONDAGA
ONONDAGA

SHAWN BROTON,
SHAWN BROTON,

Plaintiff,
Plaintiff,
NOTICE OF
NOTICE APPEAL
OF APPEAL
vs
VS.
Index
Index No.
No. 000609/2022
00060912022
COUNTY OF
COUNTY ONONDAGA, ONONDAGA
OF ONONDAGA, ONONDAGA
COUNTY BOARD
COUNTY BOARD OF WILLIAM J.
ETHICS, WILLIAM
OF ETHICS, J.
FITZPATRICK individually
FITZPATRICK individually andand inin his
his
capacity
capacity asas Onondaga
Onondaga County District
County District
Attorney, ROBER
Attorney, ROBER DURR individually and
DURR individually in
and in
his capacity as
his capacity as Onondaga
Onondaga County
County Attorney,
Attorney,
JOHN AND
JOHN AND JANE
JANE DOES individually and
DOES individually in
and in
their capacity
their capacity asas Onondaga
Onondaga County
County Public
Public
Officers, DUANE OWENS
Officers, DUANE individually and
OWENS individually and
in his
in his capacity
capacity asas Onondaga
Onondaga Commissioner
Commissioner of of
Personnel,
Personnel, STEVE WILLIAMS individually
STEVE WILLIAMS individually
and in his
and in his capacity
capacity as investigative
as investigative
consultant to
consultant to the
the Onondaga
Onondaga County
County Board
Board ofof
Ethics, JOHN CUCINOTTA
Ethics, JOHN CUCINOTTA in in his
his capacity
capacity
as
as aa member
member of the Onondaga
of the County Board
Onondaga County Board
of Ethics, MARY
of Ethics, MARY BETH BETH PRIMO in in her
her
capacity
capacity asas aa member
member of of the
the Onondaga
Onondaga
county Board
county Board of of Ethics, and
and FR. ROBERT
SCULLY, SJ
SCULLY, in his
SJ in his capacity
capacity as as aa member
member ofof
the Onondaga
the Onondaga County
County Board
Board of of Ethics,

Defendants.
Defendants.

PLEASE TAKE
PLEASE TAKE NOTICE that
that Defendant,
Defendant, STEVE
STEVE WILLIAMS, individually
WILLIAMS, individually

and in his capacity

and. in capacity as investigative consultant
as investigative consultant to the Onondaga
Onondaga County
County Board
Board of
of

Ethics, hereby appeals the Supreme

appeals to the Supreme Court,
Court, Appellate Division, Fourth

Department, from the Decision and

Department, and Order of the Honorable
Order of Honorable Gregory
Gregory R. Gilbert, in
Gilbert, in

above-entitled action,
the above-entitled action, dated
dated February 8, and entered in the office
2024, and
8,2024, office of
of the

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Onondaga County Clerk

Onondaga County Clerk on
on February
February 8, 2024, which
8,2024, which Order
Order denied
denied defendant's
defendant's

motion to
motion to disqualify plaintiffs counsel.
disqualify plaintiff's counsel.

This Appeal
This Appeal is
is being
being taken
taken from
from each and every
each and part of
every part of the
the said
said Order as well
Order as well

as from the
as from the whole
whole thereof.
thereof.

Dated: February13,
Dated: February 13,2024
2024

SMITH, SOVIK,
SMITH, KENDRICK &
SOVIK, KENDRICK & SUGNET,
SUGNET, P.C.
P.C.

By:
By:
Kevin H Pander,, Esq.
Kevin E. Hul Esq
Attorneys
Attorneys for Defendant Steve
for Defendant Steue Williams
Williams
250 South Clinton
250 South Clinton Street,
Street, Suite
Suite 600
600
Syracuse,
Syracuse, New York 13202
New York 13202
Telephone:
Telephone: (315)
(315) 474-2911
47 4-29LL
Email: khulslander@smithsovik.com
Email: khuislander@,smithsovik.com

TO: Gary
TO: Gary J. Lavine, Esq.
J. Lavine, Esq.
BOUSQUET HOLSTEIN PLLC
BOUSQUET HOLSTEIN PLLC
Attorneys
Attorrueys for
for Plain'tiff
Plaintiff
110
1L0 West
West Fayette
Fayette Street,
Street, 10th
l-0th Floor
Floor
Syracuse, New York L3202
Syracuse, New York 13202
Email: glavine@bhlawp11c.com
Email: glavine@bhlawpllc.com

CC: John
CC: John E. Heisler, Jr.
E. Heisler, Jr. Esq.
Esq.
ONONDAGA COUNTY
ONONDAGA COUNTY DEPARTMENT
DEPARTMENT OF OF LAW
LAW
Attorneys
Attorneys for Defendants Robert Durc and Duane Owens
for Defendants Robert Durr and Duane Owens
421 Montgomery Street,
42L Montgomery Street, 10th
10th Fl.
Fl.
Syracuse,
Syracuse, NYNY 13202
13202
Telephone: (3L5) 435-2170
Telephone: (315) 435-2L70
Email: JohnHeislerJr@ongov.net
Email: JohnHeisierJr@ongov.net

Donald S.
Donald S. DiBenedetto,
DiBenedetto, Esq.
Esq.
COSTELLO COONEY
COSTELLO COONEY & & FEARON,
FEARON, PLLCPLLC
Attorneys
Attorneys for
for Defendan
Defendant t Williarn
William J.
J. Fitzpatrick
Fitzpatric h
211
21-1 West Jefferson Street
Street
Syracuse, York 13202
Syracuse, New York 13202
Telephone: (315)
Telephone: (315) 422-1152
422-l'1.52
Email: ddibenecletto@ccf-law.com
Email: ddihenedetto@ccf-law.com

(S1992266.1)
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NYSCEF NO. 82
DOC. NO. 82 t*WADNE6EPF:oNIPMA24
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o

STATE OF
STATE OF NEW YORK
NEW YORK
SUPREME COURI : : COUNTY
$UPR"SMS COURT COUNTY OF
OF ONONDAGA
OI{ONDASA,

BROTON,
S}IAWN BROTON,
SHAWN

Plaintiff
Plaintiff DECISION & ORDER
DECISION & ORDER
v.
v

COUNTY OF
COUNTY OF ONONDAGA,
ONONDAGA, Index No.: 000609/2022
Index No.: 000609nA72
ONONDAGA COUNTY
ONONDAGA COUNTY BOARD BOARD OF Otr'ETHIC
ETHICS, S' HON. GREGORY
HON. GREGORY R. R, GILBERT
GILBERT JSC
JSC
WILLIAM FITZPATRICK individually
WILLIAM J.J.FITZPATRICK individually and andininhis
his
Capacity
Capacity as as Onondaga
Onondaga County
County District
District Attorney,
Attorney,
ROBERT
ROBERT DURR DURR individually
individually and and in inhis
his capacity
captcity asas
Onondaga
0nondaga CountyCounty Attorney,
Attomey,
JOHN
JOHN AND JANE DOES
AND JANE DOES individually
individually and andin in their
their
capacity as Onondaga County public
capacity as Onondaga County public offtcers officers
DUANE
DUANE OWENS OWENS individually
individually and andin inhis
his capacity
capacity as as
Onondaga
Onondaga County Commissioner
Counry Commissioner of
of Personnel,
Personnel,
WILIAMS individually
STEVIN WILLIAMS
STEVEN individuatly and and inin his
his capacity
capacity
asinvestigative
as constrltatrt to
investigrtive consultant to the
the Onondaga
Onclndaga County County
Board of
Board of Ethics,
Ethlcs,
JOHN CUCINOTTA
JOHN CUCTNOTTA in in his
his capacity
capacity as member of
as anmember of
The
The Onondaga County Board
Onondaga County Board of of Ethics,
Ethics,
MARY
MARY BETH PRIMO in
BETH PRIMO in her
her capacity
capacity as as ae member
member of of
'l"he Onondaga
The County Board
Onondaga County Board of Ethics, and
ol'Ethics, nnd
Fr, SCULLY, S.J.
ROBERT SCULLY,
Fr, ROBERT S.J. inin his
lris capacity
capacity as as aamember
member
Of
Of the
th6 Onondaga
Onondaga County
County Board
Board of of Ethics,
Ethios,

Defendants.
Defcndants,

Gary J.
Appcarnnces: Gary
Appearances: J. Lavine,
[,avine, Esq.
Esq. John E, Heisler,
John E. lleisler, Jr.,
Jr., Esq.
Esq.
Bousquet Holstein PLLC
Bousquet Holstein PLLC Onondaga CountY Dept.
Onondaga County Dept. of
of Law
Law
Attorneys
Attorneys for Plain tilf
tbr Plaintiff Attorneys
Attorneys for
for Defendants County/ Durr
Defendants County/ Dun
110
1t0 W.
W. Fayette
Fayette St.,
St., Ste.
Ste. 1000
1000 421 Montgomery
421 Montgomery Street
Street
Syracuse,
Syracuse, New
New York
York 13202
13202 Syracuse,
Syracuse, New York 13202
New York 13202

Kevin
Kevin E.
E. Hulslander,
Hulslander, Esq.
lisq, Donald
Donald S.
S. DiBenedetto,
DiBenedetto, Esq.
Esq.
Smith,
Smith, Sovik,
Sovik, Kendrick
Kendrick & & Sugnet,
Sugnet, P,C.
P.C. Costello,
Costello, Cooney
Cooney & & Fearon,
Fearon, PLLC
PLLC
Attorneys
Attorneys for
for Defendant
Del'endant Williams
Wi lliarns Attorneys lbr Defendant
Attorncys for Defendant Fitzpatrick
Fitzpauick
250
250 South
South Clinton
Clinton Street,
Street, Ste.
Ste. 600
600 21 I W.
211 W. Jefferson
Jefferson Street,
Street, Ste.
Ste. 1I
Syracuse,
Syracuse, New York 13202
New York 13202 Syracuse, New York 13202
Syracuse, New York 11202

This
This action
aotion was
was commenced
commenced January 27, 2022. Discontinuance
27,2022. Discontinuance was
was filed
filed as
as to
to the
the Board
Board
of
of Ethics,
Ethics, Cucinotta,
Cucinotta, Primo,
Primo, and
and Scully
Scully on June 17,
onJure 2022. The
17,7A22. The action
action has
has continued against
continued against the
the

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RECEIVED NYSCEF: 02/13/2024
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County, Fitzpatrick, I)urr,

County, Fitzpatrick. and Williarns.
Durr, and Plaintiff previously
Williams. PlaintitT fi led aa motion
previously Frlecl motion to compel production
to compel production
of all
of investigator po(es by Williarns during lnquiry
all investigator notes made by Williams during inquiry into
nrade irito aa complaint
complaint made
made to
to the
the Onondaga
Onondaga
Board in
Ethics Board
County Ethics
Counry in 2019, T'his was grantciuni
2019. This was granted and was ,"o, l'ollorvccl
followed hy
by aa trial
trial note
note of issue
issue t'iled
filed
November 29,2023
Noventber 29, 2023 as directed
as directed by the Court.
by the Court.

A consent to
A conscrrt change atlorney
w cl-range was tiled
attorney was filed for defendant Williarns
for clefcndant Williams on December
December 19, 19, 2023
2023 and
and
to strike
motion to
aa nrotion strike the trial lote
the trial note ol'issue brought. l'his
was brought.
of issue was This was denied. Plaintift'lile
was denied. Plaintiff filedd aa cross motion
cross motion
to disqualily.
to disqualify counsel representing
counsel representi.n g Williams
Williams and
and other relief. 'l"his
other rElief' This was also denied'
was also denied.

A further moriol
A firrthor motion has been {iled
has been filed hry Williams to
by Williams to clisqualily plaintiffs counsel and this
disqualify plairitifT's this is
is
As with
opposed. As
opposed, thc disqualilica
with the previous disqualification
prer.,ious motinn, it is
iion motion, is based on
basccl on the
the attonroy-wit ness
attorney-witness rule
rule antt
and
involves Attorney
involvcs Mieha Ordway
Attorney Micira Ordway and requested interview
and aa recluestecl interview or examination under
or exetmination of plaintifl'
oath of
under oath plaintiff

Wiliams that plaintilf

asserts thar
Williams Asser{s refused, cancellccl.
plaintiff refused, cancelled, ancl failed to respond
and t'aited requests for
respond to requests
interview examination under oath. Orclway's
interview or examination testimony is not viewed
Ordway's testimony viewed as necessary
necessary as as asserted
asserted
Wiliams. Williarls ptaintiff
by Williams. Williams and plaintiff
by ancl are capabie of providing-te srirnony
capable of providing testimony as as to
to the
the investigatio
investigation.n"The
The
pup"r.
papers in reply sratc this ,o*.
state rhis propusition
same proposition [DKT #-81
[DKT # 81 1[61. Williams points
61. Williams points out the Cour:t
and the Court also
ar]'d also
observes thatplaintif
observes has lot
t'5as
that plaintiff potential icsiimony
the. potontial
addressed tlie.
not o<ldiessett Ordway liom
testimony of Ordwny from any substantive
substantive
standpoint. 'l'5is
stnndpoipt, plaintiff has no
conclude that ptaintilT
Court to conclticle
This leaves the Clourt plan t0
no plan to calt
call Ordway as aa
substantive witness or it woulcl defended the motion on that
would have det'endecl basis. Williams makes no
that basis' no
inclication
indication that he will reqrrire substantivc testirnony
require substantive testimony from liorn ()rdrvay
Ordway either'
either.

Ordway might be
Even to the extent that C)rdr.vay
h-tven called to testify,
he calted testimony would be
testify, such testitnony be linrited
limited
to matters ol'evideptin
to matters ry foundntiol
of evidentiary foundation lbrfor clocurnents
documents itrin the case including
the case including hishis e'mail
e-mail oorresponde
correspondencence
and/or agreement or otirerwise
and/or $grcement otherwise tcr confirm receipt o('a
to corrfinrr email that went unanswered
Williams ernail
of a Will.iarns unanswered.''[heThe
Court has no intentiop
C6urt intention of allorving
allowing Ordway to testily
Ordway testify about about the concluct
conduct of
of tl'te
the investigatio
investigationn or his
his
opinions o{'thc
opinions of the same as lopg plaintiflisire presenteclbby
long as plaintiff is represented y his cun'ent
current attorneys wherc plaintiff has
where plaintiff has
claim of aly
no clairn
made rro
matle inrcritiori to off'er
any intention offer Orciway'ste stimony to thrit.eff'ect'
Ordway's testimony that effect. TheThe justificati.on
justification lor
for
4isqualitica rion is insutficient.
disqualification Jozefik v. Jgefiiq
insufficient. Jozefik Joselik, 89 AD3d 1489 (4rh 201l); I"loganVilli
(411' Dept 2011); IloganWillig, g'
pLLC
PI.LC v. Swomrville
Sworrnvil le Fire Cqmnanv. Inc., 210 AD3cl
Company, Irrc., (41r' DcpL2022).
AD3d 1369 (4111 Dept 2022).

Accordingly
Accordingly,, it is
is

OllDEItllD" that thc

ORDERED, ol'the
the motion of Steven Willianrs,
clefendant, Steven
the defendant, Williams, io disqualily plaintiffs
to disqualify plaintiff's
counse:l DBNIIiD in all tespccts.
counsel is DENIED respects.

r"r'rs s0 OILDBRED
IT IS SO ORDERED. . d

BNTEII
ENTER

Fcbruaty 8,
Dated: February 8,2024
2024
Oswego, Nen'\'ork
Osrvego, New York GII.E(;ORY R. GILBERT
ON. GREGORY
-ION. GII,I}EII.'T
STJPRRME COURT'
SUPREME COURT JUSTICE
2

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STATE OF
STATE NEW YORK
OF NEW YORK
SUPREME
SUPREME COURT COURT
COUNTY OF ONONDAGA
COUNTY OF ONONDAGA

SHAWN
SHAWN BROTON,
BROTON,

Plaintiff,
Plaintiff,

VS
vs. AFFIDAVIT
AFFIDAVIT OF
OF SERVICE
SERVICE
Index
Index No.
No. 00060912022
000609/2022
COUNTY
COUNTY OF ONONDAGA, ONONDAGA
OF ONONDAGA, ONONDAGA
COUNTY BOARD
COUNTY BOARD OF ETHICS, WILLIAM
OF ETHICS, WILLIAM J. J.
FITZPATRICK individually
FITZPATRICK individually andand inin his
his
capacity
capacity as County District
Onondaga County
as Onondaga District
Attorney, ROBER DURR
Attorney, ROBER DURR individually
individually and and in
in
his capacity
his capacity as Onondaga County
as Onondaga Attorney,
County Attorney,
JOHN AND
JOHN AND JANE
JANE DOESDOES individually
individually andand inin
their
their capacity
capacity asas Onondaga County Public
Onondaga County Public
Officers, OWENS individually
Officers, DUANE OWENS individually and
DUANE and
in
in his
his capacity
capacity asas Onondaga Commissioner of
Onondaga Commissioner of
STEVE WILLIAMS
Personnel, STEVE
Personnel, individually
WILLIAMS individually
and in
and in his
his capacity
capacity as as investigative
investigative
consultant to
consultant to the Onondaga
Onondaga County Board of
County Board
Ethics, JOHN CUCINOTTA in
Ethics, JOHN CUCINOTTA in his capacity his capacity
as a member
member of the Onondaga County
of the County Board
Board
of Ethics, MARY
of Ethics, BETH PRIMO
MARY BETH PRIMO in her in her
capacity as a member
capacity member of of the Onondaga
Onondaga
county Board
Board of of Ethics, and FR.
Ethics, and FR. ROBERT
ROBERT
SCULLY,
SCULLY, SJ SJ in
in his member of
his capacity as a member
County Board
Onondaga County
the Onondaga Board ofof Ethics,
Ethics,

Defendants
Defendants.

STATE OF NEWYORK
NEW YORK )
COUNTY OF ONONDAGA
ONONDAGA ) ss.:
ss.:

DIANE that II am not

DIANE DEVINE, being duly sworn, deposes and says that a party
not a party to
to

18 years
this action, am over 18 in Baldwinsville,
years of age, and reside in York. On
Baldwinsville, New York. On

13,2024,I
February 13, with the
electronically filed the foregoing notice of appeal with
2024, I electronically the

notification of such
Clerk of the Court using the CM/ECF system, which sent notification filing
such filing

tsree254l.1l
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following:
to the following:

Gary J. Lavine, Esq.

BOUSQU
BOUSQUET HOLSTEIN PLLC
ET HOLSTEIN
Email: glavine@bhlawp11c.corn
glavipe@ bhlawpllc.corn

John E. Heisler, Jr. Esq.

ONONDAGA COUNTY DEPARTMENT
ONONDAGA DEPARTMENT OF LAW
Email: JohnHeislerJr@ongov.net
Email: JohnHeislerJr@ongov.net

DiBenedetto, Esq.
Donald S. DiBenedetto, Esq.
COSTELLO COONEY
COSTELLO FEARON, PLLC
COONEY & FEARON,
Email: ddibenedetto@ccf-law.mm
Email: ddibenedetto@ccf-law.com
ts

?1\--)
Diane Devine

Sworn to & subscribed

subscribed before me
this 13th February,2024
13th day of February, 2024

Notary Public
CHR]STINE M. VERI
CHRISTINE VERI
Public-Slate of New York
Notary Public-State
Notary
No. 01VE4831798
No.01VE4831 798
Qualified in Onondaga County -, {
CountY , .,
Commission
Commission Expires
Expires December 2OA)
December 31, 20 -•-)

{s1992541. l }
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