With All Due Respect

I learned on October 6th that a member of the public (an individual who has never been one of my clients) made an incorrect comment at the October 5, 2017 public hearing before the City of Buffalo’s Preservation Board concerning the Hon. Paula L. Feroleto and Chason Affinity’s proposed project at the corner of Elmwood and Forest avenues. Justice Feroleto is the mother of Delaware District Council Member Joel Feroleto, who is a staunch supporter of Chason Affinity’s plans to demolish eleven century-old buildings that comprise an important and highly visible part of the Elmwood (East) Historic District (see SHPO’s 12-19-2016 letter) which is listed in both the State and National Registers of Historic Places.

I did not attend or have any involvement in the Preservation Board meeting – where, according to WBFO’s 10/06/2017 report), the board “unanimously rejected demolition permits for the buildings at Elmwood and Forest to make way for the Chason Affinity project”.  However, out of respect for Justice Feroleto and the neighbors who have fought for a decade to preserve the historic character of the Elmwood Village, I would like to share what I know about the role Councilmember Feroleto’s mother played – inadvertently, or otherwise – in making the current plans for the southeast corner of Elmwood and Forest possible.

I.  Joel Feroleto’s failure to disclose his communications with Chason Afinity

Before doing that, however, I would like to update my blog post from June 27, 2017 – entitled, “Disappointed by Councilmember Joel Feroleto.” Two of the factors that I found most discouraging about Joel’s handling of the proposed Chason Affinity project – known as “1111 Elmwood” – were the “timing of political contributions” he received from individuals affiliated with Chason Affinity’s project, and the Councilman’s “parroting of the developer’s positions.” As a result of these concerns, on June 8, 2017, I sent an email to the City Clerk (Gerald Chwalinski), the City’s Corporation Counsel (Timothy Ball, Esq.), the Common Council Interim Chief of Staff (Malcolm A. Ertha), and Councilmember Feroleto, making the following request for records pursuant to the Freedom of Information Law (FOIL):

All communications in written or electronic form (including, without limitation, correspondence, letters, memoranda, notes of meetings or conversations, emails, telephone messages, text messages, audio or video recordings,) between Councilmember Joel Feroleto or his staff and the Chason Affinity Companies, any of its affiliates (including, without limitation, Affinity Elmwood Gateway Properties, LLC), its officers and managers (including, without limitation, Mark Chason and P. Jeffrey “Jeff” Birtch), and/or its agents (including, without limitation, Steven Carmina and Steven J. Ricca, Esq.), from 09/01/2015 to 06/08/2017, regarding (1) any proposed development at the southeast corner of Elmwood & Forest avenues (including, without limitation “1111 Elmwood”); (2) the Green Code/UDO; and/or (3) required approvals at the Common Council, Planning Board, or Zoning Board of Appeals.

[See Feroleto FOIL – email to city officials 06-08-17  and FOIL Request by AJGiacalone 06-08-2017 .]

Despite the passage of four months, neither the city’s top lawyer, nor the Common Council’s chief of staff, nor Councilmember Feroleto, has responded to this request. Althouh the City Clerk did reply on June 9, 2017, he washed his hands of any obligation to provide the FOILed documents. According to Mr. Chwalinski, the City Clerk’s office “only maintains records that are filed for Common Council meetings.”

Not surprisingly, Joel did not submit his communications with Chason Affinity to the City Clerk’s office as part of the official record. That shouldn’t matter, however. The purpose of FOIL is to expose to the public the workings of government. Any records, documents, papers, notes, etc., in Joel Feroleto’s possession that relate in any way to the performance of his duties as a Common Councilmember – including his communications with Chason Affinity and its agents pertaining to the Elmwood/Forest project – constitute “agency records” and are subject to the rights of access conferred by FOIL.

[Note: See the opinion expressed by the Executive Director of the State’s Committee on Open Government, Robert J. Freeman, regarding a village trustee’s “private” papers, in FOIL-AO-13904.]

I urge Councilmember Feroleto’s constituents in the Delaware District to ask their elected official: Joel, with all due respect, what are you hiding?

II. Justice Paula Feroleto’s role in furthering Chason Affinity’s goals

A.  John Michalek’s retention of Chason Affinity’s “Commercial Division” lawsuit.

Since September 2009, Justice Feroleto has been the Administrative Judge for the Eighth Judicial District of New York State’s Supreme Court, which includes Erie and seven nearby counties. As reflected in her official biography, she is a well-respected jurist and administrator.

State Supreme Court includes a “Commercial Division” where a specified list of business-related cases are heard. An Eighth Judicial District justice is assigned to the Commercial Division for a three-year stint, and a “Court Attorney” assists the assigned justice in progressing the cases. Former (and, now-disgraced) State Supreme Court Justice John A. Michalek served as the Commercial Division’s judge from January 1, 2010 to December 31, 2012.

In September 2011, the law firm of Lippes Mathias Wexler Friedman LLP, commenced an action on behalf of an affiliate of Chason Affinity (Affinity Elmwood Gateway Properties LLC) in the Commercial Division seeking to extinguish restrictive covenants that burdened the parcels owned by Chason Affinity and many other lots in the vicinity of the southeast corner of Elmwood and Forest. The restrictive covenants, which date back to 1892, prohibit construction of a building for commercial use. [See Transcription of James N. Granger Deed No. 1 Daniel]  Because the case was brought in the Commercial Division, the case was assigned to Justice Michalek. The Commercial Division’s Court Attorney at the time was Anne S. Rutland, Esq.

On at least two occasions – around June and September 2012 – Ms. Rutland advised Chason Affinity’s lawyers and me that the pending lawsuit to extinguish the restrictive covenants would be re-assigned to the new justice taking over the Commercial Division on January 1, 2013. As the Court Attorney explained, the only Commercial Division cases that Michalek would retain were those scheduled for trial on or before June 2013. Chason Affinity’s lawsuit was scheduled for trial no earlier than October 2013.

On the second occasion that we were advised of the upcoming re-assignment, the Chason Affinity lawyer sitting across from Ms. Rutland – Brendan H. Little, Esq. – slumped in his chair and grimaced as if he had just learned that his pet dog had been run over by a car. I understood his concern. Throughout the first year of litigation, it appeared to me and my clients that John Michalek was representing plaintiff Chason Affinity, rather than acting as a neutral judge trying to objectively and fairly rule on the issues in the case. [Here are several examples: MICHALEK – 8 Examples to Share 05-30-14 ]

To my surprise, late in December 2012, I received a set of papers from Mr. Little and his supervising attorney, former State Attorney General Dennis C. Vacco, Esq., scheduling oral argument in January 2013 before Michalek, not the newly-assigned Commercial Division justice. When I asked Michalek why the case was not re-assigned, he smirked and said that the decision was made by the Administrative Judge – that is, Justice Feroleto.

I have no way of knowing how or why the decision was made to keep the restrictive covenant lawsuit in Michalek’s untrustworthy hands, or who spoke to whom, or what information was or was not shared with the Administrative Judge or her staff. But I had no doubt then – and, continue to have no doubt – that my clients’ efforts to prevent the extinguishing of the restrictive covenants had zero chance of succeeding (despite the merits of their position) as long as Michalek was the judge deciding the case.

B.  Refusal to re-assign restrictive covenant lawsuit despite “ex parte” communications.  

In December 17, 2013, I wrote to Justice Feroleto, sending copies to Michalek and opposing counsel. The letter requested a conference with the attorneys for the parties and Michalek to discuss whether there should be a re-assignment of Chason Affinity’s lawsuit following what, in my opinion, had been two improper ex parte communications between counsel for Chason Affinity and Justice Michalek or his court staff. Note: An ex parte communication is a conversation or communication between one party and a judicial officer without the other party being present. [Please note that at no time did I question the propriety of actions taken by Justice Michalek’s long-time Confidential Clerk, Lynn A. Clarke.]

Eleven months earlier I had provided Justice Feroleto with a copy of my clients’ motion requesting Michalek to disqualify himself from continued handling of the case. The motion had been preceded by a series of actions by Michalek that appeared to reflect either a partiality in favor of Chason Affinity, or hostility toward me or my clients. [I had never before taken such a step in my three-dozen years of practicing law.] One of Michalek’s transgressions was his imposition of a “gag order” prohibiting me from communicating with Kaleida Health, despite the fact that Kaleida was neither a party, nor a witness, to the restrictive covenant lawsuit. [Not surprisingly, Michalek refused to voluntarily step down from the case.]

Rather than conducting the requested conference, Justice Feroleto sent a letter to me and opposing counsel indicating her position that she lacked the authority to interfere with a case once it has been assigned. [About two weeks after Justice Feroleto’s decision to take no action, the Appellate Division in Rochester ruled that Michalek had abused his discretion in precluding me from communication with Kaleida, and vacated the order prohibiting my communications with the health care provider.  (Click here to see the letter-to-the-editor that I had written concerning Kaleida’s selection of Chason Affinity to redevelop the Gates Circle site of the former Millard Fillmore hospital.)  According to the appellate court, Chason Affinity had provided no evidence to establish that I had done anything unreasonable or improper, that I had misused the discovery process, or that I had harassed or unduly burdened Chason Affinity.]

It should be noted that former-Justice Michalek’s questionable actions occurred during the same time period that Michalek and political operative G. Steven Pigeon were allegedly engaged in “a mutually-beneficial relationship” that resulted in Michalek pleading guilty in June 2016 to bribery and filing a false instrument, as well as recently-announced federal charges of bribery, wire fraud and conspiracy against Pigeon.

In my opinion, by not re-assigning the restrictive covenant case, or, at a minimum, meeting with the parties and Michalek to send a message that she was keeping an eye on the proceedings, Administrative Judge Paula L. Feroleto – inadvertently, or otherwise – guaranteed that the Elmwood Village neighborhood would lose its most powerful weapon against unwanted commercial intrusion: the 1892 restrictive covenants.

With All Due Respect,

Art Giacalone