FILED: ERIE COUNTY CLERK 02/23/2018 03:29 PM INDEX NO.

814613/2017
NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 02/23/2018

STATE OF NEW YORK

SUPREMECOURT : COUNTY OF ERIE

DANIEL T. WARREN,
ANSWER &
OBJECTIONS OF LAW

Petitioner,
-against- Index No. 814613/2017

SHEILA MEEGAN, AS SUPERVISOR OF THE

TOWN OF WEST SENECA, THE TOWN OF
WEST SENECA, and THE TOWN BOARD
OF THE TOWN OF WEST SENECA

Respondents.

Respondents, Sheila Meegan as Supervisor of the Town of West Seneca, the Town of

West Seneca and the Town Board of the Town of West Seneca (hereinafter referred to as the

I»'
"Town"
& "Respondents"), by their attorney, John J. Fenz, .,Esq., as and for an Answer and

Objections of Law to the Petition, dated October 16, 2017, respectfully alleges as follows:

1. The Town admits those allegations set forth in paragraph 2, 3, 4, 5, 6, 8, 9, 11, 12,

13, and 22.

2. The Town denies those allegations set forth in paragraphs 15, 16, 19 and 20.

3. The Town denies knowledge or information sufficient to form a belief and

therefore denies those allegations set forth in paragraphs 1, 14, 25, 26, 27 and 29.

4. The allegations in paragraphs 7, 10, 21, 23, 24 and 30 contain legal conclusions to

which no response is required; however, to the extent of those paragraphs do not express a legal

conclusion, the Defendant denies those allegations.

5. The referenced documents and websites in paragraphs17, 18 and 28 of the

Petition speak for themselves

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6. Repeats and realleges each and every allegation previously made as if restated

herein.

AS AND FOR A FIRST AFFIRMATIVE DEFENSE,

TOWN ALLEGES AS FOLLOWS:

7. Repeats and realleges each and every allegation previously made as if restated

herein.

8. The Petitioner is unable to the relief sought in its Petition in that it failed to set

forth a cause of action upon which relief can be granted.

AS AND FOR A SECOND AFFIRMATIVE DEFENSE,

TOWN ALLEGES AS FOLLOWS:

9. Repeats and realleges each and every allegation previously made as if restated

herein.

10. The Plaintiff is unable to recover on their Complaint in that the claims are not

properly pleaded as required by the CPLR.

AS AND FOR A THIRD AFFIRMATIVE DEFENSE,

TOWN ALLEGES AS FOLLOWS:

11. Repeats and realleges each and every allegation previously made as if restated

herein.

12. The Plaintiff is unable to recover on their Complaint pursuant to one or more of

the affirmative defenses set forth in CPLR Rule 3211.

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OBJECTIONS IN POINT OF LAW

13. I am an attorney-at-law, duly admitted to practice before the highest courts of the

State of New York.

14. I am the Town Attorney for the Town of West Seneca, appointed by its duly

elected Town Board.

15. At all times relevant herein, I represented the Respondents and I am fully familiar

with the facts and circumstances of this special proceeding.

16. My knowledge is based upon (A) my personal knowledge, (B) discussions with

the Respondents, and (C) my review of the Petition and exhibits contained therein.

17. For the reasons set forth hereafter, the Respondents object as a matter of law to

those allegations set forth in the Petition to the extent of those issues to which relief was not

otherwise stipulated between the parties, specifically:

a.) Declaring the Respondents use of informal communication of public business

between any two members of the Town Board, in its current form, is in violation of the

Open Meetings Law;

b.) Declaring the Respondents use of third-party intermediaries to communicate

matters of public business between any two members of the Town Board, in its current

form, is in violation of the Open Meetings Law;

c.) Prohibiting the Respondents from the use of informal communication of public

business between any two members of the Town Board, in its current form, in violation

of the Open Meetings Law; and,

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d.) Prohibiting the Respondents from using third-party intermediaries to

communicate matters of public business between any two members of the Town Board,

in its current form, in violation of the Open Meetings Law.

18. Simply put, the Petitioner asserts that the respective members of the Town Board

communicating with their attorney and a third-party intermediary, who would also discuss those

same matters with another Town Board member, violates the Open Meetings Law.

19. New York Public Officers Law Section 103(a) states:

"Every meeting of a public body shall be open to the

general public, except that an executive session of such body may
be called and business transacted thereat in accordance with
ninety-five' article."
section ninety-five of this

20. New York Public Officers Law Section 102(1) states

'"Meeting"
means the official convening of a public body
for the purpose of conducting public business, including the use of

videoconferencing for attendance and participation by the

body."
members of the public

body"
21. As admitted in its Answer, the Respondents are a "public subject to the

Open Meetings Law.

"convening"
22. The Respondents assert that there needs to be a of the public body

for it to be subject to the Open Meetings Law.

23. In a landmark decision rendered in 1978, the Court of Appeals found that any

gathering of a quorum of a public body for the purpose of conducting public business is a

"meeting"
that must be convened open to the public, whether or not there is an intent to take

action and regardless of the manner in which a gathering may be characterized. see Orange

County Publications v. Council of the City of Newburgh, 60 AD 2d 409, affd 45 NY 2d 947

(1978).

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24. When reviewing Public Officers Law Section 102(1) and the Orange County the

"meeting"
operative word for whether a takes place and is subject to the Open Meetings Law,

"convening"
there needs to be a of a quorum of the public body.

25. Referencing the above referenced statutory and case law, The Committee on Open

Government has offered guidance, while not on point directly to the use of a third-party

intermediary, is instructive:

"Based upon an ordinary dictionary definition of "convene", that

term means:

1. to summon before a tribunal;

'SUMMON'" (Webster'
2. to cause to assembly syn see (Webster's
Seventh New Collegiate Dictionary, Copyright 1965).

In view of the ordinary definition of "convene", I believe that a

"convening"
of a quorum requires the physical coming together of
at least a majority of the total membership of a public body, that a

majority of a public body would constitute a quorum, and that an

affirmative majority of votes would be needed for a public body to
duties."
take action or to carry out its OML-AO-o2569.

Boardi
26. Simply put, when two members of the Town do not come together

"convening."
physically, telephonically or via videoconference then there is no

27. Where there is no convening of a public body the Open Meetings Law does not

apply.

28. Further, the Open Meetings Law does not extend to communications between a

town board and its counsel.

29. Public Officers Law Section 108(3) provides in relevant part that "[n]othing

contained in [the Open Meetings Law] shall be construed as extending the provisions hereof to ...

The Town of West Seneca Town Board is a three (3) member town board.

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law."
any matter made confidential by federal or state

30. "[S]ince communications made pursuant to an attorney-client relationship are

considered confidential under the [CPLR] ..., communications between a ... board ... and its

counsel, in which counsel advises the board of the legal issues involved in the determination of

Law."
a[n] ... application, are exempt from the provisions of the Open Meetings see Matter of

Young v. Board of Appeals of Inc. Vil. of Garden City, 194 A.D.2d 796, 798, 599 N.Y.S.2d

632; see generally CPLR 4503[a][1].

31. With respect to the Petitioners contention regarding informal communication, the

Orange County case again becomes constructive:

"We believe that the Legislature intended to include more than the
mere formal act of voting or the formal execution of an official
document. Every step of the decision-making process, including
the decision itself, is a necessary preliminary to formal action.
Formal acts have always been matters of public record and the
public has always been made aware of how its officials have voted
on an issue. There would be no need for this law if this was all the
Legislature intended. Obviously, every thought, as well as every
affirmative act of a public official as it relates to and is within the
scope of one's official duties is a matter of public concern. It is the
entire decision-making process that the Legislature intended to
statute"
affect by the enactment of this (60 AD 2d 409, 415).

"informal,"
The court also dealt with the characterization of meetings as stating that:

'formal'
"The word is defined merely as 'following or according
rule'
with established form, custom, or (Webster's Third New Int.
Dictionary). We believe that it was inserted to safeguard the rights
of members of a public body to engage in ordinary social

transactions, but not to permit the use of this safeguard as a vehicle

by which it precludes the application of the law to gatherings

which have as their true purpose the discussion of the business of a
body"
public (id.).

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32. Referencing the above referenced statutory and case law, The Committee on Open

Government has offered the following guidance:

"Based upon the direction given by the courts, if a majority

of a public body gathers to discuss public business, any such
"meeting"
gathering, in my opinion, would ordinarily constitute a
subject to the Open Meetings Law, irrespective of its
characterization."
OML-AO-3410

33. The Respondents understand their obligations with respect to the Open Meetings

Law and the subject matter of their interactions; however, the undersigned is concerned that the

relief sought by the Petitioner may be unclear, contingent and speculative with respect to any

interactions of members of the Town Board.

WHEREFORE Defendant demands judgment that the Complaint be dismissed in its

entirety and such other further, different relief as to this Court may deem just and proper.

DATE: February 23, 2018

West Seneca, New York

John J. Fenz, Esq.

A orneyforRespondents
1250
.,1250 Union Road

/ West Seneca, New York 14224

Phone: (716) 558-3240

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