SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION : FOURTH DEPARTMENT : : NOTICE OF CROSS-MOTION In the Matter of the

Application pursuant to : FOR AN ORDER CONFIRMING THE Public Officers Law 36 by : REFEREES REPORT IN PART AND : REJECTING THE REPORT IN PART Daniel T. Warren : Petitioner, : Docket # OP 11-00539 : for the removal of : : Robert J. Bielecki from the office of : Comptroller of the Town of West Seneca, Erie : County, New York; and : : Wallace C. Piotrowski from the office of : Budget Officer and Supervisor of the Town of : West Seneca, Erie County, New York, : Respondents. : : : : : 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 this proceeding; b) Summary determination pursuant to CPLR 409(b) and/or judgment pursuant to CPLR 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.

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, 2011 Buffalo, New York Yours, etc.

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

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION : FOURTH DEPARTMENT : : AFFIDAVIT IN SUPPORT OF CROSSIn the Matter of the Application pursuant to : MOTION FOR AN ORDER CONFIRMING Public Officers Law 36 by : THE REFEREES REPORT IN PART AND : REJECTING THE REPORT IN PART AND Daniel T. Warren : IN OPPOSITION TO RESPONDENTS Petitioner, : MOTION TO SEAL, STRIKE AND/OR : REJECT THE REFEREES REPORT for the removal of : : Robert J. Bielecki from the office of : Docket # OP 11-00539 Comptroller of the Town of West Seneca, Erie : County, New York; and : : Wallace C. Piotrowski from the office of : Budget Officer and Supervisor of the Town of : West Seneca, Erie County, New York, : Respondents. : : : : : : State of New York County of Erie City of Buffalo ) ) ) ss:

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 and circumstances of this proceeding. 2. I submit this affidavit in support of my motion for an order confirming in part and rejecting 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 the Respondent Piotrowski and/or Respondent Bielecki from office forthwith. 3. This is a proceeding to remove Respondents Bielecki and Piotrowski from their respective 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 on May 6, 2011. 5. Attached hereto and marked as Exhibit 2 is a true copy of all the prior orders entered in this 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

proceeding; b) Summary determination pursuant to CPLR 409(b) and/or judgment pursuant to CPLR 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. 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 its entirety.

_________________________________ Daniel T. Warren Sworn to before me this ____day of August, 2011

_______________________________ Notary Public

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 CROSS-MOTION Public Officers Law 36 by : FOR AN ORDER CONFIRMING THE : REFEREES REPORT IN PART AND Daniel T. Warren : REJECTING THE REPORT IN PART AND Petitioner, : IN OPPOSITION TO RESPONDENTS : MOTION TO SEAL, STRIKE AND/OR for the removal of : REJECT THE REFEREES REPORT : Robert J. Bielecki from the office of : Docket # OP 11-00539 Comptroller of the Town of West Seneca, Erie : County, New York; and : : Wallace C. Piotrowski from the office of : Budget Officer and Supervisor of the Town of : West Seneca, Erie County, New York, : Respondents. : : : : : : APPLICABLE STANDARD FOR REJECTING/CONFIRMING A REFEREES REPORT Although the Referee's report is not binding upon the court, but is rendered "merely 'to inform the conscience of the court'" ( Matter of Gehr v Board of Educ. of City of Yonkers, 304 NY 436, 440), and the court remains untrammeled in its review and consideration of the record presented. The report of a referee should be confirmed if the findings therein are supported by the record. ( Matter of Holy Spirit Assn. v Tax Commn., 81 AD2d 64.) As the court declared in that case: "Generally, New York courts will look with favor upon a Referee's report, inasmuch as the Referee, as trier of fact, is considered to be in the best position to determine the issues presented." (Supra, at pp 70-71.) There is ample basis in the record for the referee's findings in connection with the instant matter as to findings 1 and 2. Finding 3 should be rejected for the reasons set forth below. In this proceeding the burden of proof is upon Petitioner to establish any misconduct,

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

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, 435436, 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

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

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).

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

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, of Exhibit 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

requirement. (Page 10, paragraph 3, of Exhibit 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 or not 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 6 12). 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

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, of Exhibit 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 for this 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

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, of Exhibit 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

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, of Exhibit N of the Affidavit of Michael B. Powers dated August 26, 2011). The State Comptrollers office rejected this response on page 32 note 5 of Exhibit 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 13 25). 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

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 5 7 ). 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

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 of Petitioners 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.

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

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 of Michael 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

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 this proceeding; b) Summary determination pursuant to CPLR 409(b) and/or judgment pursuant to CPLR 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. 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 its entirety.

DATED:

August 31, 2011 Buffalo, New York Yours, etc.

____________________________ Daniel T. Warren Petitioner, Pro Se 836 Indian Church Road West Seneca, New York 14224 716-822-0476