SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : FOURTH DEPARTMENT

:
:
In the Matter of the Application pursuant to : VERIFIED REPLY
Public Officers Law § 36 by :
:
Daniel T. Warren : Docket # OP 11-00539
Petitioner, :
:
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. :
:

Petitioner, Daniel T. Warren, as and for his reply to the respective Verified Answers of Respondents
Bielecki and Piotrowski herein alleges:

1. Respondents Bielecki and Piotrowski assert in their respective Verified Answers that the
petition is based on inadmissible hearsay. However, Petitioner has attached copies of public
documents as exhibits to his petition and they are in admissible form.

2. Exhibit "1" annexed to the Verified Petition is a government record maintained and kept by the
State of New York Office of the State Comptroller on its official government web site.
Therefore the information contained in the document is an exception to the hearsay rule under
CPLR § 4518(a), business records exception and under State Technology Law § 306 and the
Common-Law Hearsay Exception for Public Documents (See Miriam Osborn Mem. Home
Assn. v. Assessor of City of Rye, 9 Misc. 3d 1019, 1027 (N.Y. Sup. Ct. 2005)). Additionally
this document contains statements made in writing 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"]). ").

3. Exhibits “2”, “3”, “4”, & “5” annexed to the Verified Petition are government records
maintained and kept by the Town of West Seneca on its official government web site.
 Therefore the information contained in the documents fall under an exception to the hearsay
rule under CPLR § 4518(a), business records exception and under State Technology Law § 306
and the Common-Law Hearsay Exception for Public Documents (See Miriam Osborn Mem.
Home Assn. v. Assessor of City of Rye, supra). The Statements in these exhibits that are
attributed to, and made by, West Seneca Town Council members Clarke and Meegan are
admissible because the Town Clerk, Patricia DePasquale recorded them herself based upon her
personal knowledge in the performance of her duties, and the information imparted to her by
them were under a business duty to do so by virtue of their official position with the Town of
West Seneca. Statements made by either Respondent to these proceedings that are contained in
these exhibits are also admissible as a statement of a party opponent.

4. Exhibits “1”. “2”, “3”, “4”, & “5” annexed to the Verified Petition are also admissible under
the common-law hearsay exception rule for official written statements, often called the
"official entries" or "public document" rule. The common-law rule, which is much broader in
scope, has not been superseded by CPLR § 4520 (see Richards v. Robin, 178 App. Div. 535,
539; see, also, 5 Weinstein-Korn-Miller, N. Y. Civ. Prac., par. 4520.01; 5 Wigmore, Evidence
[3d ed.], § 1638a, n. 1; Practice Commentary on CPLR 4520 in McKinney's Cons. Laws of N.
Y., Book 7B, p. 480). Additionally Petitioner respectfully request that the Court take Judicial
Notice of these documents.

5. Exhibit “6” attached to the Verified Petition is an article that appeared in The Buffalo News, a
newspaper of general circulation and is self-authenticated pursuant to CPLR § 4532 that
contains statements made by Respondent Piotrowski and is therefore admissible for the same
reason their written statements to the State Comptroller’s report contained in Exhibit “1” are as
set forth above. Additionally, this document is under an exception to the hearsay rule under
CPLR § 4518(a), business records exception and under State Technology Law § 306 (See
Miriam Osborn Mem. Home Assn. v. Assessor of City of Rye, supra).

6. Exhibit “7” attached to the Verified Petition is an article that appeared in The Buffalo News, a
newspaper of general circulation and is self-authenticated pursuant to CPLR § 4532 and is
admissible under an exception to the hearsay rule under CPLR § 4518(a), business records
exception and under State Technology Law § 306 (See Miriam Osborn Mem. Home Assn. v.
Assessor of City of Rye, supra).

7. Out of an abundance of caution Petitioner has currently before the Court a motion for a
subpoena duces tecum pursuant to CPLR § 2307 to obtain a copy of Exhibit “1” to the Verified
Petition together with any and all documents, notes, memoranda, correspondence. e-mails, and
other materials in the State Comptroller’s possession that this report was based upon in whole
or part.

8. Additionally, out of an abundance of caution Petitioner has obtained from the West Seneca
Town Clerk certified copies of the minutes that Petitioner attached to the Verified Petition and
additionally the Minutes relied upon Respondent Piotrowski attached as Exhibit “A” to his
Verified Answer.

9. Attached hereto and Marked as Exhibit “A” is a certified copy of the minutes of the West
Seneca Town Board’s meeting held on January 14, 2008.
10. Attached hereto and Marked as Exhibit “B” is a certified copy of the minutes of the West
Seneca Town Board’s meeting held on March 2, 2009.

11. Attached hereto and Marked as Exhibit “C” is a certified copy of the minutes of the West
Seneca Town Board’s meeting held on August 16, 2010.

12. Attached hereto and Marked as Exhibit “D” is a certified copy of the minutes of the West
Seneca Town Board’s meeting held on September 20, 2010.

13. Attached hereto and Marked as Exhibit “E” is a certified copy of the minutes of the West
Seneca Town Board’s meeting held on February 7, 2011.

14. Attached hereto and Marked as Exhibit “F” is a certified copy of the minutes of the West
Seneca Town Board’s meeting held on March 7, 2011.

15. Exhibits “A”, “B”, “C”, “D”, “E”, & “F” attached hereto are admissible pursuant to CPLR §§
4518(c), 4520, 4540 and under the common-law hearsay exception rule for official written
statements, often called the "official entries" or "public document" rule. Additionally Petitioner
respectfully request that the Court take Judicial Notice of these documents.

16. In reply to paragraph 29 of Respondent Piotrowski’s Verified Answer, Petitioner is not

personally or politically allied with Councilmember Sheila Meegan. Respondent Piotrowski’s
perception of an alliance stems from his apparent assertion that this is true because it appears to
him I knew of her candidacy first and did not disclose my source of this information.
However, I did disclose the source of my information; The Buffalo News article published on
March 8, 2011 and attached as Exhibit “7” to the Verified Petition reports that “Councilwoman
Sheila M. Meegan, who has said she will challenge Piotrowski for supervisor.”

17. Petitioner objects in point of law pursuant to CPLR § 404(b) to the following paragraphs of
Respondent Piotrowski’s Verified Answer on the grounds that it contains irrelevant,
inadmissible opinion and inflammatory, prejudicial and scandalous allegations and/or needless
commentary that he has unnecessarily inserted in his Answer: 56, 57, 58, 59, 60, 61, 62, 64, 65,
66, 67 & 68. In the event that this objection is overruled Petitioner requests that he be provided
with an opportunity to supplement this Verified Reply to respond to these allegations.

18. In reply to paragraph 63 of Respondent Piotrowski’s Verified Answer it is true that I do not
make any allegations against Sheila Meegan in this proceeding. I did not learn of the events
that occurred at the March 7, 2011, meeting of the West Seneca Town Board until well after
the filing of the Verified Petition on March 16, 2011. It is the practice of the West Seneca
Town Clerk to not publicly publish the minutes of the Town Board until they are approved
absent a FOIL request as evidenced by the e-mail exchange between the Town Clerk and
Petitioner contained in Exhibit “5” attached to the Verified Petition as well as my comments at
the January 14, 2008 meeting of the West Seneca Town Board (Page 4 of Exhibit “A” attached
hereto and Exhibit “2” attached to the verified Petition at page 6.).

19. Petitioner objects in point of law pursuant to CPLR § 404(b) to Respondent Piotrowski’s
Piotrowski’s Second Defense on the ground that a defense is not stated and/or has no merit
because the fact, even if proven true, that another person has committed some type of
perceived wrong and petitioner did not include them as a Respondent in this proceeding or
otherwise moved against them is not relevant unless such conduct would mitigate or negate
Petitioner’s claim against Respondent Piotrowski in this proceeding. In the event that this
 objection is overruled Petitioner requests that he be provided with an opportunity to
supplement this Verified Reply to respond to these allegations.

20. Petitioner objects in point of law pursuant to CPLR § 404(b) to Respondent Piotrowski’s Third
Defense on the ground that it is duplicative of his First Defense. In the event that this objection
is overruled Petitioner requests that he be provided with an opportunity to supplement this
Verified Reply to respond to these allegations.

21. Petitioner objects in point of law pursuant to CPLR § 404(b) to Respondent Piotrowski’s
Fourth Defense on the ground that it is duplicative of his First Defense. In the event that this
objection is overruled Petitioner requests that he be provided with an opportunity to
supplement this Verified Reply to respond to these allegations.

22. Petitioner objects in point of law pursuant to CPLR § 404(b) to Respondent Piotrowski’s Fifth
Defense on the ground that a defense is not stated and/or has no merit. In the event that this
objection is overruled Petitioner requests that he be provided with an opportunity to
supplement this Verified Reply to respond to these allegations.

23. Petitioner objects in point of law pursuant to CPLR § 404(b) to Respondent Bieleck’s Second
Affirmative Defense on the ground that it is duplicative of his First Affirmative Defense. In the
event that this objection is overruled Petitioner requests that he be provided with an
opportunity to supplement this Verified Reply to respond to these allegations.

24. Petitioner objects in point of law pursuant to CPLR § 404(b) to Respondent Bieleck’s Third
Affirmative Defense on the ground that it is duplicative of his First Affirmative Defense. In the
event that this objection is overruled Petitioner requests that he be provided with an
opportunity to supplement this Verified Reply to respond to these allegations.

25. Petitioner objects in point of law pursuant to CPLR § 404(b) to Respondent Bieleck’s Fourth
Affirmative Defense on the ground that a defense is not stated and/or has no merit. In the event
that this objection is overruled Petitioner requests that he be provided with an opportunity to
supplement this Verified Reply to respond to these allegations.

WHEREFORE, your petitioner prays that Robert J. Bielecki be removed from the office of
Comptroller of the Town of West Seneca, Erie County, New York; and/or Wallace C. Piotrowski be
removed from the office of Budget Officer and Supervisor of the Town of West Seneca, Erie County,
New York.

DATED: May 6, 2011

Buffalo, New York
Yours, etc.

____________________________
Daniel T. Warren
Petitioner, Pro Se
836 Indian Church Road
West Seneca, New York 14224
State of New York )
County of Erie ) ss:
City of Buffalo )

I, Daniel T. Warren, am the Petitioner in the within proceeding. I have read the foregoing
reply and know the contents thereof. The contents are true to my own knowledge except as to matters
therein stated to be alleged upon information and belief, and as to those matters I believe them to be
true.

________________________________
Daniel T. Warren
Sworn to before me this
__ day of May, 2011

__________________________
Notary Public
EXHIBIT “A”
EXHIBIT “B”
EXHIBIT “C”
EXHIBIT “D”
EXHIBIT “E”
EXHIBIT “F”