Former Police Commish Robert Kelly Fires Back Against City Lawsuit

TABLE OF CONTENTS
City of Mount Vernon et al. v. Robert Kelly et al.

CV-18-3007 SDNY
ANSWER to a VERIFIED COMPLAINT
I. INTRODUCTION and SUMMARY……………..……………………..….……...Page 1

a) Paragraphs (1-7)
MOTION FOR SUMMARY DISMISSAL……………………………....…..…....Page 4

a) Paragraph (7)
II. BACKROUND TO SUPPORT PLAINTIFFS VIOLATION OF RULE 11b ….....Page 4

a) Paragraphs (1-60)
III. ADMISSSIONS AND DENIALS SUMMARY……………………………....…...Page 17
ADMISSIONS AND DENIALS………………………………….……...….……..Page 17

a) Paragraphs (1- 379)
IV. AFFIRMATIVE DEFENSES…………………………………………………...…Page 49

a) Paragraphs (1-8)
V. RELIEF SOUGHT BY DEFENDANT……………………………………………Page 52
0

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
________________________________________________
CITY OF MOUNT VERNON and CITY OF MOUNT
VERNON URBAN RENEWAL AGENCY
Plaintiffs,
Civil Action No.
-against- CV-18-3007
ROBERT KELLY, as City of Mount Vernon

Police Commissioner and as an Individual, PRO SE
ERNEST D. DAVIS, MAUREEN WALKER,

JAMIE MARTINEZ, MARCUS GRIFFITH, ANSWER TO A VERIFIED
ANDRE WALLACE, WILLIAM O. COMPLAINT
WAGSTAFF III, ATLANTIC DEVELOPMENT
GROUP LLC, PETER FINE, BLUE RIO LLC-
New York, BLUE RIO KENWOOD LLC, BLUE
RIO LLC-Connecticut, TITUS MOUNT
VERNON LLC, JOHN SARACENO and JOHN
DOE #1 TO JOHN DOE #10.

_________________________________________________
I.
INTRODUCTION
1. With this Answer to the Plaintiffs’ summons and complaint, Defendant Robert Kelly
(herein KELLY) seeks relief from the Court to dismiss the Complaint pursuant to Federal Rules,
applicable case law, and for reason that the Statute of Limitations has expired.
2. KELLY asks the Court to apply the plausibility standard at the pleadings stage to
summarily dismiss this action. The Plaintiffs have failed in their claim, specific to KELLY, to
satisfy the Twombly test (Plausibility Standard, 61 Clev. St. L. Rev. 231 (2013). It is incumbent
upon the Plaintiffs to allege, “enough facts to state a claim to relief that is plausible on its face.”
(Twombly, 550 US at 570). The allegations against KELLY are based upon legal conclusions
1

made by the Plaintiffs, asserting legal actions that KELLY should or should not have taken in his
role as Police Commissioner. Consequently, the Court has judicial review at this pleading stage
to summarily dismiss Plaintiffs’ action, as the elements of the Plaintiffs’ claim, specific to
KELLY, have not satisfied the plausibility standard and are based upon legal conclusions rather
than factual conclusions.
2. Based upon information and belief, upon review of Plaintiffs’ complaint and the
background materials provided herein, Plaintiffs and Plaintiffs’ Counsel have violated Federal
Rules 11b(1) and 11b(2). The Plaintiffs’ claims in this action are designed by default to impugn
the good name and reputation of KELLY. It is wholly retaliatory in nature for actions KELLY
took as Police Commissioner for the City of Mount Vernon that negatively impacted the Mayor
of Mount Vernon, Richard Thomas (herein THOMAS). Additionally, based upon information
and belief, THOMAS assigns blame in part, to KELLY for THOMAS’s arrest on corruption
charges on March 12, 2018, by the New York State Attorney General’s Office. Absent of
material facts and chock-full of falsehoods in this Complaint, the Plaintiffs have no expectation
to prevail. Rather the Plaintiffs’ success rests in tarnishing KELLY’s reputation and causing the
defendant to incur inordinate legal costs to defend this action. The Plaintiffs face no economic
hardship in promoting this action as taxpayer dollars are utilized to underwrite Plaintiffs’ costs.
3. The fact that Plaintiffs file this action after the Statute of Limitations has expired,
specific to the claims alleged against KELLY, is further evidence of Plaintiffs and Plaintiffs’
Counsel violation of Federal Rule 11b(1). KELLY was not an employee of the City of Mount
Vernon at the time of the alleged misappropriation of funds, which allegedly occurred prior to
2016. The events that encumbered the changes to police reports and retrieval of property from
City Hall, that Plaintiffs contend constitute criminal conduct, occurred in February and March of
2

2016. The Computer Fraud Act Violation cited by Plaintiffs has a two-year statute of
limitations. Plaintiffs request to the Court for a summons for KELLY in this action was not filed
until April 5, 2018, and was not served on KELLY until April 9, 2018.
4. It was KELLY who took a principled position as Police Commissioner, one that was
contrary to his own interests, which would subsequently cost him his employment. KELLY
electively choose not to reinstate THOMAS’s brother to his position of firefighter, after
THOMAS’s brother had been convicted of illegally selling handguns to the Federal Bureau of
Investigation. KELLY had every expectation of having his employment terminated by
THOMAS as a consequence; nonetheless KELLY demonstrated a level of integrity of the kind
expected of public servants, placing service before self.
5. The Plaintiffs should not be rewarded by the Court with the continuance of this action,
specific to KELLY. Public service executed with integrity should be embraced by government
and communities alike. Leveraging the Court to impose retaliatory action against those who take
such principled decisions, if only by having KELLY incur legal expenses to defend this action,
the loss of personal time and, undue distress should be vigorously discouraged by the Court.
Twombly (Twombly, 550 US at 570), offers the Court the opportunity to correct an injustice at its
infant stage. Furthermore, KELLY appeals to the Court to apply Plaintiffs’ violation of Federal
Rule 11b, in furtherance of summary dismissal.
6. Furthermore, KELLY requests the Court to apply Federal Rule 11c(3) to Plaintiffs for
for advancing vexatious litigation. A dismissal in this action later in the process after multiple
appearances and correlative court filings remains a win for the Plaintiffs, as it will have
compelled KELLY to incur future costs to defend the action, sullied his good name in the
process, and contributed to personal duress. KELLY also asks the Court to take correlative
3

disciplinary action against Plaintiff’s Counsel for professional misconduct, also in violation of
Federal Rule 11c(3). The background information provided herein provides clear evidence of
the Plaintiffs motive(s) for maliciously targeting KELLY in this legal action and Plaintiffs
violation of Federal Rule 11b.
7. KELLY respectfully submits this memorandum of law in support of its MOTION TO
DISMISS the Complaint, specific to Defendant KELLY.
II.
BACKGROUND INFORMATION SUPPORTING PLAINTIFFS

ALLEGED VIOLATION OF FEDERAL RULE 11(B)
1. On December 15, 2015, THOMAS contacted KELLY and offered him the position of
Commissioner of Public Safety upon the inception of THOMAS’s term of office, which would
begin on January 1, 2016. KELLY accepted.
2. THOMAS recruited KELLY to serve as Police Commissioner based largely in part on
KELLY’s highly regarded professional reputation, earned across more than three decades of
service in public safety. On January 3, 2016, addressing a church congregation THOMAS
stated that KELLY is a “man of integrity” and that, “I trust in him the same way I trust in the
Lord.” KELLY’s appointment added credibility to a newly minted and inexperienced
administration.
3. On December 17, 2015, THOMAS invited KELLY to an event in Mount Vernon to
publicly announce KELLY’s impending appointment. Immediately following that event
THOMAS and KELLY attended a meeting at the Riverside Memorial Chapel in Mount Vernon,
at which THOMAS spoke. Immediately following that meeting, THOMAS invited KELLY to
engage in a conversation at the Bayou Restaurant in Mount Vernon.
4

4. While at the Bayou Restaurant, for the first time THOMAS spoke to KELLY about
assuming the additional responsibility of being Commissioner of the Fire Department
concurrently with being Commissioner of the Police Department. KELLY asked THOMAS if he
was aware that THOMAS’ brother, Henry-George Thomas, had been arrested and convicted
upon a plea of guilty to selling illegal firearms to the Federal Bureau of Investigation within the
last several months. THOMAS stated that he was aware. THOMAS’s brother was employed at
that time as a firefighter for the City of Mount Vernon.
5. KELLY told THOMAS that because his brother had made these illegal sales of
handguns while employed as a firefighter and did so during working hours, that KELLY would
be required to take disciplinary action if he were to assume responsibility for the Fire
Department. At that time no disciplinary action had been taken and the arrest and conviction of
THOMAS’s brother was not publicly reported.
6. On January 6, 2016, KELLY prepared a written report that he hand-delivered to
THOMAS in the Mayor’s Office outlining the circumstances of THOMAS’s brother’s arrest and
conviction. The report contained KELLY’s recommendation for the immediate suspension of
THOMAS’s brother as a firefighter for the City of Mount Vernon, with disciplinary action to
follow that would result in his involuntary separation of service.
7. KELLY returned to his office at Police Headquarters only to be called back to the
Mayor’s conference room in City Hall, later that same afternoon. Present in the conference room
were THOMAS, Joseph Spiezio (herein SPIEZIO), an associate of THOMAS who had made
both political and personal financial contributions to THOMAS, and Arthur “Jerry” Kremer,
counsel to THOMAS, among others also present. At this same meeting, KELLY was
5

subsequently handed back the report he had earlier hand delivered THOMAS and was told that
the Mayor (THOMAS) cannot see this until “we figure this out”.
8. KELLY subsequently returned to Police Headquarters. Upon returning to Police
Headquarters, SPIEZIO came unannounced to meet with KELLY in KELLY’s office. At that
meeting, SPIEZIO unequivocally represented that he was speaking on THOMAS’s behalf, and
asked what could be done to resolve the issue of THOMAS’s brother employment. KELLY
stated that his (KELLY’s) recommendations were in the report and that there were no
alternatives available.
9. On or about January 7, 2016, THOMAS’s brother, Henry-George Thomas, resigned
from his position as a firefighter.
10. Following media inquiries into the matter, THOMAS was advised by his counsel,
Arthur “Jerry” Kremer, in the presence of KELLY, to allow KELLY to address all press
inquiries regarding the issue and that THOMAS should recuse himself from the matter.
THOMAS declined to follow his Counsel’s advice.
11. In a broadcast interview with NEWS12/Westchester THOMAS was asked by a
reporter when he first learned of his brother’s arrest. Incredulously, THOMAS said that he had
no prior knowledge of the arrest until receipt of KELLY’s report. This contradicts the facts of
the meeting between KELLY and THOMAS in December of 2015.
12. On or about January of 2016, following THOMAS’s brother’s resignation,
THOMAS inquired of KELLY at City Hall, “How is my brother supposed to pay his mortgage?”
THOMAS followed that inquiry by stating, “Why didn’t you (KELLY) treat my brother the
same way you treated Dumser?” Dumser was a Deputy Police Chief intending to retire. These
6

inquiries dispel THOMAS’s later claim(s) that he recused himself from matters related to his
brother’s employment as a city firefighter.
13. On or about January of 2016, KELLY was informed directly by THOMAS that he
was appointing SPIEZIO as a Deputy Police Commissioner. KELLY clarified with THOMAS in
person at City Hall, that this was only an honorary position and provided THOMAS with an
Honorary Deputy Police Commissioner badge for this purpose. THOMAS acknowledged same
and accepted the honorary badge he would give to SPIEZIO.
14. As a matter of law, the City of Mount Vernon Charter does not allow the Mayor
(THOMAS) to make appointments of Deputy Commissioner to the Police Department but that
duty is delegated by Charter to the Police Commissioner (Mount Vernon City Charter Article X
§ 114).
15. On or about January of 2016, KELLY held a staff meeting at Police Headquarters
where he informed senior police staff that SPEIZIO had no line authority in the Police
Department. KELLY informed staff that SPIEZIO, as an Honorary Deputy Police
Commissioner, did not have authority to make decisions or give orders impacting police
operations.
16. Following that meeting on or about January of 2016, SPIEZIO sent KELLY multiple
text messages, one that read in part, “Please make certain that the men know my position in the
department and please refrain to (sic) statements that I have no authority and not to listen to me
or like I am a nobody…. but if anyone wants to challenge my authority then that will be an
issue… I suggest those in the staff people are corrected.” In a follow-up text message,
SPEIZIO wrote, “I have meetings in Florida tomorrow and flying shortly”, indicating that he
would follow-up this issue upon this return to New York.
7

17. Following SPIEZIO’s text messages to KELLY, on or about January 2016,
THOMAS directed KELLY to provide SPIEZIO with a police department issued Deputy Police
Commissioner badge and identification card, absent any notation of honorary.
18. On February 1, 2016, SPEIZIO was present at police headquarters and completed
personnel forms to formalize his position as a Deputy Police Commissioner with the City of
Mount Vernon. These form(s) required KELLY’s endorsement to legitimize SPIEZIO’s
appointment pursuant to the City Charter.
19. As a form of identification in support of required documentation, SPEIZIO provided
a Florida driver’s license. As a matter of law, New York Consolidated Laws, Public Officers
Law - PBO § 3-b(1), appointment to a sworn law enforcement position requires New York State
residency. SPEIZIO’s prima facie out of state residency made him ineligible to hold a sworn law
enforcement position in New York. KELLY subsequently refused to endorse SPEIZIO’s
personnel appointment.
20. On February 26, 2016, THOMAS called KELLY to report that Defendant City
Council President Marcus Griffith (herein GRIFFITH) and Defendant City Councilman Andre
Wallace (herein WALLACE) were in the City Hall Office of Defendant Jaime Martinez (herein
MARTINEZ) after business hours. THOMAS directed that the police respond to investigate the
matter.
21. KELLY contacted the Desk Officer at Police Headquarters and directed the Desk
Officer to send officers to investigate. The Desk Officer was directed by KELLY to ensure that
a written report was prepared to memorialize the event. This action by KELLY would be
counterintuitive to the Plaintiff’s claim that there was intent to “cover-up” the incident.
8

22. Within days, WALLACE approached KELLY regarding the police report prepared
for the February 26, 2016 incident. WALLACE reports that he was listed as a “suspect” in the
police report, which was labeled Trespass Investigation.
23. WALLACE pointed out that as a matter of law, both WALLACE and GRIFFITH,
elected members of the City Council, had license and privilege to be within City Hall. As such,
under the circumstances listing WALLACE as a suspect in a trespass investigation in City Hall
was incongruent with meeting a legal threshold for a trespass offense. More so, WALLACE
stated that incorrectly identifying him as a “suspect” in a police report was particularly injurious
to his reputation as an elected official and as a person of color.
24. The practice of the Mount Vernon Police Department and other police agencies is for
supervisors to review every report and, when necessary, or required, correct inaccurate or
incorrect content, as KELLY has done as a police Sergeant, Lieutenant, and Captain.
KELLY acknowledged the error and directed that the report be amended to list
WALLACE and GRIFFITH as persons interviewed rather than as suspects. No changes to the
body of the report were made. Thereafter, KELLY personally informed THOMAS of the
correction to the report.
25. On February 27, 2016, THOMAS called defendant City Council President
GRIFFITH and surreptitiously recorded the phone call. THOMAS specifically inquired of
GRIFFITH about his and WALLACE’s entry into MARTINEZ’s Office on February 2, 2016.
GRIIFITH consistently reported to THOMAS that GRIFFITH and WALLACE went to remove
MARTINEZ’s personal effects, including his college diploma. THOMAS called KELLY
thereafter, to apprise KELLY that he had made the recording.
9

26. In the recorded conversation, GRIFFITH asks of THOMAS what had happened to
MARTINEZ’s personal computer, which GRIFFITH had not found in the office. THOMAS
reported to GRIFFITH that detectives had taken possession of it and placed it in safekeeping.
27. THOMAS’s admission that detectives had taken custody of property for safekeeping
prior to the entry of GRIIFITH and WALLACE is contrary to the Plaintiffs claim that the office
of MARTINEZ was being preserved for later inventory purposes.
28. Furthermore, based upon information and belief, the same computer THOMAS says
was recovered by detectives for safekeeping, remained for several weeks in the office of the
Human Resources Department within City Hall. This would be contrary with chain of custody
procedures by police, if in fact a crime scene were being inventoried as Plaintiffs suggest.
29. The Plaintiffs claim that MARTINEZ’s office was sealed off with tape is absurd. It is
ludicrous to think that if such tape was in place that it would be used to “prevent” entry as the
Plaintiffs claim. Tape of this kind, is used most often by police to create a perimeter barrier
keeping the public at a distance while a crime scene is processed. It is not used to secure a crime
scene. The Plaintiffs confuse broadcast television police procedures with actual policing
standard operating procedures.
30. The Police Department never took custody of MARTINEZ’s office. There is no
police report to reflect any such an action. A host of persons in city government and those in
support roles including but not limited to cleaning services, had access to these City Hall office
areas. If a crime scene were in place, under these circumstances, it would have been
unconscionable for the office to be left unattended. Standard operating police procedures would
not allow for the chain of custody of potential evidence to be compromised by leaving a scene
10

unsecured and unattended. To suggest that further property of evidentiary value would have
been left behind is not plausible.
31. On or about March 2016, KELLY was called to a meeting in the Mayor’s Office. In
attendance were THOMAS, Corporation Counsel Lawrence Porcari (herein PORCARI) and
Deputy Fire Commissioner Ernest Richardson. At this meeting PORCARI insisted that
THOMAS’s brother, Henry-George Thomas, should be reinstated as a firefighter. KELLY and
Richardson objected to reinstatement. KELLY refused to reinstate Henry-George Thomas and
the meeting concluded.
32. On March 22, 2016, Corporation Counsel PORCARI forwarded an email to KELLY
directing that no member of the police or fire department may be suspended without pay.
PORCARI directed that any persons presently suspended without pay should be placed back on
the payroll. In this same email PORCARI directed that this apply to THOMAS’s brother, Henry-
George Thomas, who had previously gave his resignation effective January 7, 2016.
33. On March 22, 2016, KELLY responded to PORCARI’s email that THOMAS brother
was no longer a city employee and could not be placed back on the payroll because he had
resigned.
34. On March 11, 2016, KELLY forwarded a written communication to the Westchester
County District Attorney’s office related to an open homicide investigation.
35. Effective with that communication and a directive to Mount Vernon detectives, over
the objections of private counsel Deveraux Cannick, who represented a witness to the homicide,
KELLY told detectives to locate and interview the witness.
36. On or about March 2016, based upon information and belief, THOMAS came into
receipt of KELLY’s written correspondence to the District Attorney’s Office.
11

37. Pursuant to receipt of that correspondence, THOMAS in March and April of 2016,
engaged in unilateral communications with a member of the District Attorney’s Office. In an
April 13, 2016, broadcast on local radio station, THOMAS confirmed these conversations. These
conversations would ultimately negatively impact the homicide investigation, wherein Deveraux
Cannick stated his earlier objections related to his client. THOMAS did not seek KELLY’s
counsel as to the status and/or merits of the investigation. Based upon information and belief, the
witness to the homicide, represented by Counsel Deveraux Cannick was never interviewed by
police following KELLY’s termination as Police Commissioner on April 9, 2016.
38. In an email dated March 31, 2016, City Corporation Counsel PORCARI reports that
he met with the very same Deveraux Cannick who was representing THOMAS’s brother, Henry-
George Thomas. PORCARI’s email states that THOMAS’s brother would be reinstated to his
firefighter position retroactively to January 7, 2016. KELLY was not included in the email
chain.
39. THOMAS’s conversations with a member of the District Attorney’s Office that
touched upon an interest of Deveraux Cannick, within the context of Cannick’s representation of
a client related to a homicide investigation, at the same time Cannick was representing
THOMAS’s brother is troubling. This ethical lapse demonstrated by THOMAS for failing to
recuse himself in this matter with a member of the District Attorney’s Office, when the same
private counsel was advocating for his brother’s reinstatement as a firefighter, merits greater
scrutiny, as to THOMAS’s motive(s).
40. On April 1, 2016, KELLY was apprised of PORCARI’s March 31, 2016, email.
41. On April 2, 2016, at 12:31 o’clock p.m., KELLY sent an email to PORCARI,
THOMAS, Arthur “Jerry” Kremer, and others, unequivocally stating that KELLY would not
12

reinstate THOMAS’s brother as a city firefighter. KELLY stated in no uncertain terms that to do
so would be criminal and constitute fraud.
42. On April 2, 2016, at 12:32 o’clock p.m., Arthur “Jerry” Kremer, counsel to
THOMAS, contacted KELLY and stated that, KELLY had exposed the principal (THOMAS)
and that KELLY should have known better than to send the email.
43. On April 2, 2016, at 1:01 o’clock p.m., KELLY contacted THOMAS by telephone
and informed him that the email referenced in paragraph 41, had been sent to his personal email
address and recounted the contents of the email.
44. On or about April 12, 2016, following public disclosure of the email, THOMAS
adamantly maintained that he never received the email or was ever made aware of the email’s
content. However, it would constitute gross professional misconduct of Counsel Arthur “Jerry”
Kremer not to confer with THOMAS on this matter, especially so if he felt the principal
(THOMAS) was exposed by the email’s content. It is inconceivable that Arthur Kremer, a
veteran lawmaker, having served thirteen (13) terms as a member of the New York State
Assembly, would not consult with THOMAS on this exchange. THOMAS’s public declaration
that he was never aware of the content of KELLY’s email lacks credibility.
45. On April 7, 2016, THOMAS directed KELLY to change the police report that
reflected the events of GRIFFITH and WALLACE entering MARTINEZ’s office. THOMAS
indicated to KELLY that the original correction (removing WALLACE as a suspect) to the
report, might have an unfavorable impact upon pending litigation between THOMAS (as the
City of Mount Vernon) and WALLACE.
46. On April 7, 2016, THOMAS directed KELLY by text message to send the changed
report to his office inquiring, “Did you drop off the amended police report?”
13

47. On April 8, 2016, THOMAS directed KELLY to respond to the Mayor’s Conference
Room. THOMAS surreptitiously recorded this conversation with KELLY. THOMAS indicated
that he wanted to end KELLY’s employment as Police Commissioner and spoke of termination
verses resignation possibilities. Bruce Jackson was also present during this sensitive personnel
matter. Bruce Jackson was not a member of city government in any form but rather a civilian
advisor to THOMAS.
48. On April 9, 2016, THOMAS asked KELLY to commit to a joint press release to
publicly report KELLY’s resignation, not termination. As an ordinary business practice,
inducing a resignation rather than applying a termination is a sound business practice. However,
comments made by THOMAS’s to KELLY contradict Plaintiffs claim(s) that KELLY was
terminated for cause. THOMAS stated to KELLY that he wanted to use the press conference to
promote “mutual admiration” and “mutual respect”. THOMAS stated, “I want people to know I
think highly of you.” This would seem to be a clear contradiction to the Plaintiffs claim that
KELLY was terminated with cause for an egregious offense. Rather it appears that Plaintiffs
have retrospectively reconstructed their representations of events to better suit their frivolous
litigation.
49. In the absence of KELLY agreeing to participate in a joint press conference, on April
9, 2016, THOMAS unilaterally issued a press release regarding KELLY’s termination of
employment, in which he stated, “I made a business decision that is best for the interest of Mount
Vernon.” THOMAS does not suggest nor imply that there was just cause for the termination.
50. On April 11, 2016, THOMAS held a press conference regarding KELLY’s
termination. When THOMAS was asked the reason behind KELLY’s termination, THOMAS
stated, in substance, that it was a personnel matter and as such, he couldn’t get into it.
14

51. On April 12, 2016, emails damaging to THOMAS’s credibility and ethics were
widely reported by the press. Included in these emails, was the one written by KELLY on April
2, 2016, in which KELLY stated, that reinstating THOMAS’s brother, as a firefighter, would
constitute fraud and be criminal in nature.
52. On April 13, 2016, THOMAS spoke on a locally broadcast radio program. In an
abrupt departure from his earlier position that he does not comment on personnel matters,
THOMAS boldly stated that information from the District Attorney’s Office led to KELLY’s
termination. THOMAS clearly implied that there was an ongoing investigation into this matter.
This poorly guided decision, to speak about personnel matters and to do so in such a public
forum, was designed to injure and impugn KELLY’s reputation.
53. On April 14, 2016, in a published report, the Westchester County District Attorney’s
Office unequivocally denounced THOMAS’s claim. The press release from the District
Attorney’s Office read, “The DA's Office plays no role in the personnel decision with regards to
any city, town or village in this county and played no role in the decision made by Mount
Vernon City Hall with regards to the Public Safety Commissioner."
54. On April 14, 2016, in a published news report, THOMAS stated that a primary factor
in Kelly’s termination was, “I learned that an attorney had reached out to the authorities alleging
that Bob Kelly violated his client’s civil and constitutional rights”. Based upon information and
belief, that attorney was Deveraux Cannick, the same attorney representing THOMAS’s brother
seeking reinstatement as a firefighter.
55. On April 19, 2016, based upon information and belief, KELLY was informed that
THOMAS had shared part(s) of the surreptitious recordings he made of KELLY on April 4,
2016, with a local Mount Vernon resident to win their favor. This person holds no city or other
15

governmental title. If in fact, there were an on-going investigation into this matter, as THOMAS
said in his radio broadcast (see paragraph 52), THOMAS’s action would be highly irregular.
Rather THOMAS’s effort was designed to paint KELLY in a negative light by sharing edited
and out of context recordings.
56. On or about April of 2016, Corporation Council (PORCARI), at the direction of
THOMAS, offered to show an intra-office confidential personnel memorandum regarding the
matter of KELLY’s termination with the press. This unorthodox measure further clarifies
Plaintiffs ulterior motives in this litigation and Plaintiffs ongoing effort(s) to harass and damage
KELLY.
57. KELLY was not an employee of the City of Mount Vernon at the time of the alleged
misappropriation of funds and Plaintiffs woefully fail to draw any nexus between KELLY and
any benefit derived from the alleged misappropriation to funds.
58. Plaintiffs conveniently omit to inform the Court in their claim that it was KELLY
who directed that the incident be memorialized in written form in the first instance. That is
completely contrary to the Plaintiffs representation to the Court that efforts were undertaken to
“cover-up” the incident (Plaintiffs paragraph 114).
59. Plaintiffs assert that KELLY had no right to prevent the arrest of person(s) on the
scene (Plaintiffs paragraph 115). This is factually incorrect on two counts. As Police
Commissioner KELLY was duty bound to ensure that the laws of New York State and the laws
of the Unites States are faithfully executed. This includes provisions in New York State
Criminal Law to ensure that any person(s) unlawfully arrested be immediately released from
custody. Additionally, New York State Penal Law and/or New York State Criminal Procedure
16

Law only mandate instant arrests in certain incidents of domestic abuse. There is no other
mandate for immediate arrests of persons alleged to have committed other criminal offenses.
Plaintiffs whimsically make a claim (Plaintiffs paragraph 115) to KELLY’s state of mind
and what KELLY should have known about instant events transpiring at MARTINEZ’s office, a
location where KELLY was not present. This claim, like others underscores the reach Plaintiffs
are making to include KELLY in this litigation.
60. It is notable that the Plaintiffs omit to share with the Court that after PORCARI
presented Plaintiffs allegations against KELLY to the Westchester District Attorney’s Office in
2016, that the Prosecutors Office saw no merit to take any action.
III.
ADMISSIONS AND DENIALS
Defendant KELLY Admits to paragraphs 17, 19, 20, 44, 48, 91, and 92 of the Plaintiffs
complaint. KELLY Admits in part and Denies in part to paragraph 24. KELLY Denies the
allegations contained in all other paragraphs, not previously noted, of the Plaintiffs complaint,
paragraphs 1-379.
1. Denies as KELLY is without knowledge or information sufficient to form a belief
as to the truth of each and every allegation contained in this paragraph.
17

6. Denies.
7. Denies.
10. Denies.
Denies as KELLY is without knowledge or information sufficient to form a belief
13. Denies.
14. Denies.
15. Denies.
16. Denies.
18

17. Admits.
19. Admits.
20. Admits.
24. Denies residency in the Town of Mamaroneck and Admits to employment as
Police Commissioner for the City of Mount Vernon.
19

33. Denies.
34. Denies.
38. Denies.
39. Denies.
20

44. Admits.
48. Admits.
21

22

70. Denies.
71. Denies.
72. Denies.
77. Denies.
79. Denies.
23

81. Admits.
83. Denies. No probable cause existed for an arrest.
85. Denies.
91. Admits.
92. Admits.
24

94. Denies.
95. Denies.
97. Denies. Plaintiffs fail to specify which police report they are referencing.
25

113. Denies.
114. Denies.
115. Denies.
116. Denies.
117. Denies.
118. Denies.
119. Denies.
26

27

28

29

30

31

32

33

34

35

226. Denies.
36

37

38

39

276. Denies.
277. Denies.
278. Denies.
40

279. Denies.
280. Denies.
281. Denies.
282. Denies.
283. Denies.
284. Denies.
285. Denies.
286. Denies.
287. Denies.
293. Denies.
41

298. Denies.
299. Denies.
300. Denies.
301. Denies. No response possible. Plaintiffs’ grammatically challenged sentence
effectively makes no claim.
302. Denies.
303. Denies..
304. Denies.
42

313. Denies.
314. Denies
315. Denies.
43

327. Denies.
331. Denies.
332. Denies. No response possible. Plaintiffs’ grammatically challenged sentence
effectively makes no claim.
333. Denies.
334. Denies.
335. Denies.
44

336. Denies.
45

46

47

48

IV.
DEFENSES
AS AND FOR A FIRST AFFIRMATIVE DEFENSE
1. With regard to Defendant KELLY, the Plaintiffs have failed to sufficiently satisfy the
plausibility clause. The Plaintiffs claims, specifically against KELLY, are fraught with errors
inaccuracies, and flawed legal conclusions. Defendant KELLY requests that the Court consider
adopting the pleading standards set forth by the United States Supreme Court in Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 555 (2007), which directs that “a plaintiff's obligation to
provide the ‘grounds' of his ‘entitle[ment] to relief’ requires more than labels and conclusions
[or] a formulaic recitation of the elements of a cause of action.”
The allegations against KELLY are based upon legal conclusions not factual allegations.
The Plaintiffs allege that KELLY should have taken specific legal actions and or measures in his
capacity as Police Commissioner. The Plaintiffs claim that KELLY should have made/ordered
arrests and that KELLY was precluded from having inaccurate police reports corrected is
without legal foundation and factually incorrect. Accordingly, the Court may remedy these
deficiencies in the Plaintiffs’ complaint with a summary dismissal.
AS AND FOR A SECOND AFFIRMATIVE DEFENSE
2. The alleged theft of monies preceded KELLY’s employment as Police Commissioner
with the City of Mount Vernon. Furthermore, the Plaintiffs have failed to draw any nexus or
correlation to the alleged theft and benefit to KELLY.
The Plaintiffs have failed to satisfy, Federal Rule of Civil Procedure 9(b) which states in
part, “[i]n alleging fraud or mistake, a party must state with particularity the circumstances
constituting fraud or mistake.”
49

AS AND FOR A THIRD AFFIRMATIVE DEFENSE
3. The Plaintiffs claim in paragraph one of their Complaint, that this action is brought
under the Computer Fraud and Abuse Act (18 USC 1030). The statute of limitations for this
offense is two years and has since expired. The Plaintiffs served KELLY with this action on
April 9, 2018, two years and one day following KELLY’s termination as Police Commissioner.
Plaintiffs represent in their claim that THOMAS was aware of alleged computer offense(s) by
KELLY prior to the date of KELLY’s termination. The alleged violations of the Computer Fraud
Act occurred in February and March of 2016. Plaintiffs filed with the Court for issuance of a
Summons on April 5, 2018, and KELLY was not served until April 9, 2018. In every instance,
the Plaintiffs are barred from pursuing this action as a consequence of the expiration of the statue
of limitations.
Furthermore, the Plaintiffs allege in paragraph 1 of their complaint that Plaintiffs are
seeking damages for the Computer Fraud and Abuse Act (18 USC 1030) …” and New York
State laws for a variety of torts.” Plaintiffs’ failure to enumerate which New York State laws
KELLY allegedly violated makes a defense by KELLY impossible.
Defendant KELLY appeals to the Court for a dismissal pursuant to Federal Rule 12b (6)
as the Plaintiffs, specific to KELLY, have failed to state a claim upon which relief can be
granted.
AS AND FOR A FOURTH AFFIRMATIVE DEFENSE
4. The Plaintiffs allege that KELLY contributed to a “cover-up” following WALLACE
and GRIFFITH’s entry into MARTINEZ’s office. A “cover-up” in this context would require a
crime. WALLACE and GRIFFITH, as a matter of law, had license and privilege to be in City
Hall, which makes a trespass offense legally impossible. Furthermore, the Plaintiffs allege that
50

there was a theft of documents, without identifying or enumerating items allegedly stolen.
Plaintiffs apply a broad and overreaching brush to state that URA documents were stolen. The
absence of specificity of items allegedly stolen makes any subsequent claim deficient on its face.
Notably, the reporting officer on the scene memorialized that, they, “… did not observe and (sic)
suspicious activity…”
AS AND FOR A FIFTH AFFIRMATIVE DEFENSE
5. The Plaintiffs allege that MARTINEZ’s office was secured by police for inventory
purposes. However, the day following the incident, THOMAS, in a recorded conversation with
GRIFFITH, confirmed that police had previously removed property from the office for
safekeeping, prior to GRIFFITH and WALLACE’s entry. This is contrary to the Plaintiffs
representation to the Court.
AS AND FOR A SIXTH AFFIRMATIVE DEFENSE
6. The Plaintiffs state the changes to police reports were made, some of which were done
within minutes of one another. The Plaintiffs fail to advise the Court that changes to police
reports are routine for accuracy and are conducted at the direction of police supervisors on a
daily basis. The fact that these reports were changed within minutes of one another is indicative
of that supervisory oversight and direction. The Plaintiffs mislead the Court in inferring a
nefarious motive made when a police report is corrected and more so, fails to clearly advise the
Court that no substantive changes to the facts of the incident within the instant report(s) were
made.
AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE
7. The Plaintiffs report to the Court that certain parties should have been arrested on the
scene. The Plaintiffs allege that KELLY directed that no arrests be made. Defendant KELLY
51

does not concede the Plaintiffs claim but notes that under New York State Criminal Law, arrests
are only mandatory in certain domestic violence offenses. The law does not otherwise dictate
mandatory arrests. The Plaintiffs stretch their credibility by indicating that an instant arrest(s)
should have occurred at the scene. In a politically biased incident like this, the counsel of the
Prosecutor’s Office would have been sought before taking any action, should probable cause had
been present. This is the same protocol that follows major incidents of the kind, like arrests for
murder and other serious offenses.
AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE
8. Defendant KELLY reserves the right to address the abuse of process advanced by the
Plaintiffs and Plaintiffs’ Counsel for promoting a scurrilous attack upon KELLY’s good name,
pursuant to Federal Rules 11a(1) and 11a(3). It should be clear to the casual reader that KELLY
has been incorporated into this legal action as retribution for his refusal to reinstate THOMAS’s
brother as a firefighter and tangentially for the most recent arrest of THOMAS himself, on
corruption charges filed by the New York State Attorney General’s Office. Plaintiffs’ complaint
and underlying motives cannot withstand close scrutiny.
AS AND FOR AN NINTH AFFIRMATIVE DEFENSE
9. Plaintiffs are barred from claiming or recovering any relief set forth in the Verified
Complaint by the doctrines of laches, waiver, estoppel, or documentary evidence.
V.
RELIEF SOUGHT BY DEFENDANT KELLY
WHEREFORE, when government and, or those within positions of government act
contrary to law and ethical behavior, citizens are duty bound to speak truth to those wrongs and,
or social injustices, both as individuals and as a collective community. Because of the
52

formidable resources government has at hand to attack and silence voices of protest and dissent,
which are not equitably available to private citizens, it becomes incumbent upon the Courts to
stand as stewards against such attacks, and to repel them with the full authority of the Court.
WHEREFORE, KELLY asks this Court to dismiss the complaint and enter judgment in
favor of defendant KELLY.
FURTHERMORE, the Defendant KELLY requests of the Court to impose judicial
sanctions, pursuant to Federal Rule 11c(3), against Plaintiff and Plaintiff’s Counsel in light of
Plaintiffs and Plaintiff’s Counsel flagrant violation of Federal Rule 11b.

NOTICE of SERVICE: Pursuant to Federal Electronic Case Filing (ECF) Rule 9.1, with the
submission of this ANSWER to the Pro Se Office of the Southern District of New York and
entry into the ECF system by the Clerk’s Office, the docketing of this ANSWER is deemed to
be service under Rule 5(b) of the Federal Rules of Civil Procedure.
Under Federal Rule of Civil Procedure 11, by signing below, I certify to the best of my
knowledge, information, and belief that this answer: (1) is not being presented for an improper
purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation;
(2) is supported by existing law or by a nonfrivolous argument for extending, modifying, or
reversing existing law; (3) the factual contentions have evidentiary support or, if specifically so
identified, will likely have evidentiary support after a reasonable opportunity for further
investigation or discovery; and (4) the answer otherwise complies with the requirements of
Rule
I agree to provide the Clerk’s Office with any changes to my address where case−related papers
may be served. I understand that my failure to keep a current address on file with the Clerk’s
Office may result in the dismissal of my case.
Date: April 16, 2018

New York, New York
By:
____________________________
Robert Kelly – Pro se
Church Street Station
P.O. Box 1246
New York, New York 10008-1246
Telephone: 914-960-0017
Email: rymesk@gmail.com
53

Former Police Commish Robert Kelly Fires Back Against City Lawsuit

Transféré par

Informations du document

Titre original

Copyright

Formats disponibles

Partager ce document

Partager ou intégrer le document

Options de partage

Avez-vous trouvé ce document utile ?

Ce contenu est-il inapproprié ?

Droits d'auteur :

Formats disponibles

Former Police Commish Robert Kelly Fires Back Against City Lawsuit

Transféré par

Droits d'auteur :

Formats disponibles

TABLE OF CONTENTS

City of Mount Vernon et al. v. Robert Kelly et al.

ANSWER to a VERIFIED COMPLAINT

I. INTRODUCTION and SUMMARY……………..……………………..….……...Page 1

MOTION FOR SUMMARY DISMISSAL……………………………....…..…....Page 4

II. BACKROUND TO SUPPORT PLAINTIFFS VIOLATION OF RULE 11b ….....Page 4

III. ADMISSSIONS AND DENIALS SUMMARY……………………………....…...Page 17

ADMISSIONS AND DENIALS………………………………….……...….……..Page 17

IV. AFFIRMATIVE DEFENSES…………………………………………………...…Page 49

V. RELIEF SOUGHT BY DEFENDANT……………………………………………Page 52

ROBERT KELLY, as City of Mount Vernon

ERNEST D. DAVIS, MAUREEN WALKER,

than factual conclusions.

Investigation. KELLY had every expectation of having his employment terminated by

THOMAS as a consequence; nonetheless KELLY demonstrated a level of integrity of the kind

expected of public servants, placing service before self.

Rule 11b, in furtherance of summary dismissal.

violation of Federal Rule 11b.

7. KELLY respectfully submits this memorandum of law in support of its MOTION TO

DISMISS the Complaint, specific to Defendant KELLY.

BACKGROUND INFORMATION SUPPORTING PLAINTIFFS

begin on January 1, 2016. KELLY accepted.

2. THOMAS recruited KELLY to serve as Police Commissioner based largely in part on

service in public safety. On January 3, 2016, addressing a church congregation THOMAS

Lord.” KELLY’s appointment added credibility to a newly minted and inexperienced

3. On December 17, 2015, THOMAS invited KELLY to an event in Mount Vernon to

publicly announce KELLY’s impending appointment. Immediately following that event

engage in a conversation at the Bayou Restaurant in Mount Vernon.

assuming the additional responsibility of being Commissioner of the Fire Department

that time as a firefighter for the City of Mount Vernon.

THOMAS’s brother was not publicly reported.

6. On January 6, 2016, KELLY prepared a written report that he hand-delivered to

follow that would result in his involuntary separation of service.

8. KELLY subsequently returned to Police Headquarters. Upon returning to Police

9. On or about January 7, 2016, THOMAS’s brother, Henry-George Thomas, resigned

from his position as a firefighter.

THOMAS declined to follow his Counsel’s advice.

11. In a broadcast interview with NEWS12/Westchester THOMAS was asked by a

the meeting between KELLY and THOMAS in December of 2015.

12. On or about January of 2016, following THOMAS’s brother’s resignation,

brother’s employment as a city firefighter.

and accepted the honorary badge he would give to SPIEZIO.

Department. KELLY informed staff that SPIEZIO, as an Honorary Deputy Police

would follow-up this issue upon this return to New York.

Commissioner badge and identification card, absent any notation of honorary.

Mount Vernon. These form(s) required KELLY’s endorsement to legitimize SPIEZIO’s

appointment pursuant to the City Charter.

19. As a form of identification in support of required documentation, SPEIZIO provided

enforcement position in New York. KELLY subsequently refused to endorse SPEIZIO’s

police report, which was labeled Trespass Investigation.

to his reputation as an elected official and as a person of color.

correction to the report.

thereafter, to apprise KELLY that he had made the recording.

of MARTINEZ was being preserved for later inventory purposes.

standard operating procedures.

been left behind is not plausible.

THOMAS’s brother, Henry-George Thomas, should be reinstated as a firefighter. KELLY and

Richardson objected to reinstatement. KELLY refused to reinstate Henry-George Thomas and

the meeting concluded.

County District Attorney’s office related to an open homicide investigation.

KELLY told detectives to locate and interview the witness.

receipt of KELLY’s written correspondence to the District Attorney’s Office.

engaged in unilateral communications with a member of the District Attorney’s Office. In an