Mike Gismondi Carefully Considers.

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WPCNR MR. AND MS. AND MRS. WHITE PLAINS VOICE. April 4, 2005: Commissioner of Building, Mike Gismondi has written The CitizeNetReporter, politely declining specific response to some of the opinions expressed by readers. Here is Mr. Gismondi’s reply:


Dear John,

I had an opportunity to read the comments to
my statement to you from dan (drstockman@enemyofthepeople.com).

I will not be a part of this kind of banter.
I don’t have the time and it wouldn’t be fair to
the taxpayers.

My statement to you still stands as printed.

Thank you,

Mike Gismondi

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Council Unanimously Approves 400 Feet Heights In the Downtown.

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WPCNR COMMON COUNCIL CHRONICLE-EXAMINER. By John F. Bailey. April 4, 2005, UPDATED 11:15 P.M. E.D.T.: The Common Council unanimously adopted a zoning ordinance increasing heights of buildings permitted in the Central Business District to 400 feet on 300,000 square foot parcels. The ordinance is the first step towards approving the Cappelli Hotel-Condoplex site plan amendment which was scheduled for resolution at a public hearing April 21st, where it is expected to be voted upon.


In approving the ordinance, Councilpersons Rita Malmud said she wanted explanation of the Cappelli organization’s communication delivered earlier Monday to agree to construct affordable housing units only after an “unappealable” approval of the 221 Main Street project. Malmud also said she wanted the specific number of affordable units and their locations as to where they would be built spelled out. 


Councilman Benjamin Boykin stated that in his opinion, there could be no payment of a “fee in lieu”  for any units Mr. Cappelli failed to build of the proposed 41 units required by the Common Council (split between Cappelli’s City Center committment and the 221 Main Street Hotel-Condo affordable units quota).  Mr. Cappelli’s representatives raised the issue of “a fee in lieu” as part of the possible agreements to be considered April 21.


In background material justifying the new ordinance, the Commissioner of Planning Susan Habel writes that only three areas in the Central Business District have any “significant development potential,” and they are Gateway I Garage and the Gateway II site; St. John’s Church, School, ConEdison substation and 170 Hamilton Avenue, and 221 Main Street/City Center development site. The implication being that the Central Business District would not be turned into stepping stones of 400 foot towers by passage of the ordinance. Habel’s letter notes that the Common Council would have to designate such sites for development.


However, Habel, in a different Planning Department letter to the council addressed the potential for 400 foot tower growth in the downtown. Her letter mentions eight other sites that create a potential development site of 300,000 square feet or greater,” (the threshold qualifying for 400 feet height, under the just approved ordinance). The eight sites in the 11 blocks of the Central Business District are:


1.The Centroplex.


2. Verizon Building and 80 Main Street


3. Gateway I.


4. Financial Center and Pace University


5. 10 Bank Street, The Seasons Condos, Tower Club (Senior Housing) and Mt. Carmel.


6. 3-5 Barket Avenue, office buildings and Residence Inn.


7. Infiniti Motors.


8. 40 Water Street Office Building.


The Planning Department letter dismisses these sites as 400 foot possibilities because “The Planning Department found that most of these blocks are improved with relatively new developments.”


The Planning Department letter further allays fears of “a march of the 400 foot towers,”  with a mad developer acquisition spree, by pointing out that only the Common Council can make such a march possible: “The Planning Department finds that the proposed Zoning Ordinance (enacted Monday evening), has potential applicability only if the Common Council determines first that a series of adjacent and “across the street” parcels in at least two or more blocks should be designated as a single development site for purposes of applying the dimensional regulations of the Zoning Ordinance.That determination is a discretionary action, and must, itself, be based on an environmental review and proper record.”

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Comprehensive Plan Committee Meeting 4 at George Washington School Tuesday

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WPCNR COMPREHENSIVE PLAN REPORTER. April 4, 2005: The Comprehensive Plan Review Committee will be meeting Tues., April 5 at George Washington School Auditorium at 7:30. The main focus of the evening will be to discuss  Community Resources and Implementation of the Comprehensive Plan. Public comment will also be accepted on any aspects of the Comprehensive Plan that were discussed at previous meetings.

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White Plains Week News Roundup

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WPCNR White Plains Week News Roundup. By John F. Bailey. April 4, 2005: It was a week like all weeks in White Plains filled with shock, intrigue, innuendo, vicious rumor and behind-the-scenes maneuvers. Here’s the top stories for the week of April 4:


 


The Appellate Court Throws The Pinnacle for a Loss:  The Appellate Court in Brooklyn threw out the F & J Food Corporation lawsuit, claiming their right of first refusal in the 240 Main Street deal was still in effect. The suit had been sold to the Ginsburg Development Corporation whose lawyers tried the action. The toss cannot be appealed without permission from the New York State Court of Appeal. This clears the way for Louis Cappelli to build affordable housing on the 240 Main Street site. The setting of a public hearing for April 21, is on tonight’s Common Council Agenda.


 


School Board Adopts 2005-06 Budget: The School Board voted to adopt a $154, 759,198 budget for the 2005-06 fiscal year at their March 28 meeting, according to Jackie Mackin of the Assistant Superintendent for Business office. The district received slightly more school aid from Albany than expected and two capital projects were retired. Despite the legislature increasing the amount the Governor cut state aid, overall, state  School Aid to the White Plains City School District is down 3.2%.


 


Mackin said the Tax Rate Increase was 9.36%. The increase budget-to-budget was 7.61%.


 


Charlie Booth announced his retirement as Executive Director of the Thomas Slater Center. No procedure for selecting his successor has been outlined as yet. Mr. Booth said a meeting of the Board of Directors would make that clear this month.


 


Teen Drinking Aftermath: Police said the students caught about to start a drinking party during school hours on Saint Patrick’s Day were counseled at Eastview School, and police also disclosed that there had been beer on the premises on Baylor Circle where the party was about to begin when police intervened.


 


The Comprehensive Plan Committee met at White Plains High School with only 32 citizens attending. Susan Habel revealed plans to extend a trail down through Romar Avenue to Saxon Woods Park, stated there was a Master Plan for Delfino Park. Doris Sassower proposed building affordable housing townhouses on her estate at 295 Soundview Avenue (to the Comprehensive Plan Committee). Marc Pollitzer demanded the Committee consider rezoning of New York Presbyterian Hospital property in conjunction with plans for the St. Agnes Hospital site, and suggested any Presbyterian Hospital commercial medical ventures be taxed. The next meeting of the CPC is Tuesday evening at 7:30 at George Washington School to consider the infrastructure and city finances.


 


Theatre Manager Gets New Job: Commissioner of Planning Susan Habel said Kathy Davisson, formerly Theatre Manger for the White Plains Performing Arts Center was not working on any theatre business in her new position with Community Development Program. Habel said she was working with community groups to help them develop fundraising efforts. WPCNR asked if part of that effort was booking community groups into the Performing Arts Center for fundraising activities, and Ms. Habel said it was one of Ms. Davisson’s options in her new job. Asked if any of the other 15 individuals listed in WPPAC programs were being transferred to city departments, Ms. Habel said Ms. Davisson was the only one.


 


Theatre Impressario to be Renewed? With three months to go before the city has to tell Tony Stimac whether or not they are renewing Mr. Stimac’s $100,000 contract to run the White Plains Performing Arts Center for a third year, Commissioner of Planning Susan Habel said she had no knowledge of whether Mr. Stimac was going to be renewed. Asked if she thought the Performing Arts Center contract and the job Mr. Stimac had done warranted renewing, Ms. Habel said she had no statement to make on that at this time.

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House of Strauss Will Have New Leader. Fred Strauss is Retiring. Ad Confirms.

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WPCNR Red Light. By John F. Bailey. April 4, 2005, UPDATED 11:00 E.D.T.: Fred Strauss, Director  of Cabletelevision for and Public Access television station, WPPA-TV, “The Spirit of 76,” home to the county’s best lineup of citizen-produced television shows such as Beyond the Game, Winbrook Like it Is, the syndicated Happiness Show, and mentor/pioneer/conceiver of  the county’s best and only local news show, White Plains Week, is stepping down. Mr. Strauss’ retirement was confirmed by an advertisement, appearing in The Journal News classified section Sunday and The New York Times. The ad was also placed in the trade publication of The Alliance for Community Media at the suggestionof the White Plains Cable Commission, according to City  Personnel Director, Betty Wallace.



Lou Grant Stepping Down?:  Fred Strauss, the personable, committed facilitator of free speech on cable in White Plains for two decades will be leaving “Master Control” at WPPA-TV (Public Access 76)and WPGA-TV (Government Access Channel 75). No date yet has been set for Mr. Strauss’ departure. Photo by WPCNR News.


 



 


Calling all Lou Grants: Mr. Strauss is, according to sources retiring with his wife, Nancy Strauss, (who retired from her position with the City School District last month), to Santa Fe, New Mexico. A lone ad, buried in the Journal-News  Sunday appeared to confirm Mr. Strauss’ planned departure. It is unclear at this time whether the advertisement is also being placed in national television/broadcast trade publications. Photo by WPCNR News.


 


Mr. Strauss supervises seven days of 6 hours a day programming on the White Plains Public Access Channel 76 and Government Channel 75..


 


Mrs. Strauss (Nancy) exclusively supervises the Educational Station, channel 77. Mr. Strauss is not involved with the day-to-day programming of that channel as previously reported. 


 


Mr. Strauss supervised the design of the studios of White Plains Public Access Television in the early 1980s. He organizes tapings of common council meetings and recording of city events, sets policy and aids citizens in producing programs. Programs are free form. Censorship is unheard-of, and relations with telecast talent and producers are cordial, welcoming, and highly cooperative under his genial patronage.


 


Strauss earlier in the year told this reporter he hoped to take a hand in the negotiations the city is beginning this year on a new contract with Cablevision. Now, depending on when Strauss sets his departure, that may fall to his successor, or the city.


 


Mr. Strauss is the first and only Director of Cabletelevision White Plains has had. He built the station, has brought it to where it is today. He will be missed.

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Yonkers Figure Skating Club Raises $4,000 for Jorge Posada Foundation

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WPCNR PRESS BOX. APRIL 3, 2005: The Yonkers Figure Skating Club held their Thirteenth Annual Charity Exhibition Sunday evening for the benefit of The Jorge Posada Foundation at Murrays Skating Rink in Yonkers, raising close to $4,000 for the organization founded by the New York Yankees Catcher.


Thirty-six skaters preformed solos. Each received proclamations in their honor from Yonkers City Councilman Angelo Martinelli. The Team Image Synchronized Skating Teams, which competed in the national championships in February, both Novice and Junior  opened and closed the performance as Mrs. Laura Mendez-Posada, her child Jorge, Jr. and his sister, Paulina stayed the entire program and selected winners in a post exhibition raffle.



Team Image Novice Starts the Extravaganza. Photo by WPCNR Sports.



Mrs. Laura Mendez-Posada, holding Paulina, and Jorge, Jr., with William Sullivan left, winner of a raffled Jorge Posada baseball card. Mrs. Posada and her family were guests of honor who watched the complete show and stayed to select the winners of raffled prizes, and accept a check approximating $4,000, the largest amount ever raised by the Figure Skating Club since they have been mounting these charity-dedicated exhibitions. Photo by WPCNR Sports.


The organization’s mission to create awareness of craniosynostosis, a condition requiring immediate surgery upon birth. The foundation supports medical facilities and programs conducting research and providing medical treatments for patients suffering this condition. Each year the children of the Figure Skating Club choose a charity or cause to dedicate their show.



Haley-Ann Simpson “Skating on Sunshine.” Photo by WPCNR Sports.



Nicole Muccio’s Ena Bauer at the rinkside box as The Posadas look on. Photo by WPCNR Sports.



Juliana Bailey in flight. Photo by WPCNR Sports.



Senior Graduating Skaters, Julia Boccumini, Hemandria Busgeeth, Jennifer Gottfried, Gail Machado, William McGuinness and Sarah Zanotti were honored for their years of participation and peformed this choreographed number. Photo by WPCNR Sports.



Team Image Junior Skaters closed the program with their spectacular gypsy number. Photo by WPCNR Sports



Mrs. Posada select raffle winners as Jorge, Jr., supervises. Treasure of Yonkers Figure Skating Club, Elise Hubsher holds the tickets. Photo by WPCNR Sports.


 

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Super Designer, Super Developer & Super Spouse Team to Benefit Super Hospital.

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WPCNR MAIN STREET JOURNAL. From White Plains Hospital Center. April 2, 2005: White Plains Hospital Center (WPHC)  will be the exclusive organization to benefit from Mary Jane Denzer’s 25th Anniversary extravaganza, planned for Monday, September 19, 2005, from 6:00 to 10:00 p.m. at City Center in White Plains. 


 


The event is being co-chaired by Mary Jane Denzer and Louis and Kylie Cappelli.


 


The event to celebrate this milestone for the couture fashion boutique in the heart of downtown White Plains will take place on all three floors at City Center, with each floor offering a “Center” of excitement.  Entertainment will be available on one floor, food tastings and cocktails on another, and a silent auction on yet another floor.



 


This dynamic venue will help make this the biggest and most exciting event Westchester County has ever seen, and raise much needed funds on behalf of White Plains Hospital Center,” said Ms. Denzer.  “Growth in the City of White Plains has exploded.  Access to quality health care is more important than ever and the recent closings of hospitals in our community have put enormous pressure on White Plains Hospital Center.  As a resident and business owner in White Plains, I am committed to supporting the hospital that supports us all in our time of need.”


 


 


 


For more that 110 years, White Plains Hospital Center (WPHC) has been serving the health care needs of Westchester County and the surrounding areas.  Throughout this time, the Hospital has continued to provide the highest level of medical care to greater and greater numbers. 


 


The Hospital has recently embarked on its $35 million in a new Health Care for Life Campaign, a  funding initiative that targets nine of the Hospital’s medical and health-related specialties.  They include: Cardiac Care, Emergency and Critical Care, Department of Radiology, Minimally Invasive Surgical Center, Colon Cancer and GI Screening Center, Dickstein Cancer Treatment Center, Westchester Orthopaedic Institute, the William & Sylvia Silberstein Neonatal & Maternity Center, and the Nursing Scholarship Fund.


 


For more information on tickets for Mary Jane Denzer’s 25th Anniversary extravaganza, please call Tricia Laine at the White Plains Hospital Center Development Office at        (914) 681-2264.  


 


White Plains Hospital Center is a voluntary, not-for-profit health care organization with the primary mission of offering high quality, acute health care and preventative medical care in a caring and compassionate manner to all people who live in, work in or visit Westchester County and its surrounding areas. The Hospital will provide care and services without regard to race, color, creed, national origin, age, sexual orientation, or ability to pay.  For the fourth time, the Hospital is the winner of the National Research Corporation “Consumer Choice Award” for Westchester County. WPHC is an affiliate of the NewYork-Presbyterian Healthcare System and a member of Stellaris Health Network, Inc. and Voluntary Hospitals of America, Inc.  For further information, please call (914) 681-1119 or visit the Hospital’s website:  www.wphospital.org

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Opening Day: The Thrill Is Gone. A Pastime Betrayed.

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WPCNR VIEW FROM THE UPPER DECK. By John Baseball  Bailey. April 3, 2005: This used to be the best day of the year next to Christmas for yours truly, but this year the magic of Opening Day is no longer there. Not a scintilla of heartbeat is there within my breast for the First Pitch. There is no anticipation on my part. The thrill is gone.



 


                             WRIGLEY FIELD, CHICAGO. 1975. Pete Rose at the Plate. Photo, From WPCNR Sports Archive.



The magic of Major League Baseball was killed for me in 1994, when the players and owners killed a season over money. They showed then they did not care about the legions of fans like myself who believed in them and cared about their success on the field for our town, who bought the concept that they were playing for us…that they were our boys.  


 


I knew it was a business. I knew it was all about the money, but still when the Bombers went out there or the Dodgers went out there on that immense green, they were playing for us and we cheered for them. Their success made us happy. Their failures lingered long. To me a ballpark was as good as being in a church, and I got the same feeling as I did when in church.


 


Then the strike broke out and killed the balance of the 1994 season. That strike was orchestrated by none other than Bud Selig and his nouveau riche owners who had the owners stay firm insistent on a salary cap. Well there still is no salary cap today. When Selig and the owners took that strike in 1994 – they shattered the illusion that baseball was a sport not a business. The strike showed us all that it was a business flat out.


 


Now in 2005, Selig and the owners and the media (those shills for the house), who cover major league baseball have destroyed the other pillar that major league baseball was built upon for one hundred and fifty years: integrity.


 


By the owners and the media unwillingness to expose the steroid use problem the last fifteen years, and  the created enhancements of the game:  pumped up baseball, the shrunk strike zone, the shift to interleague play (in a meaningless format),. the hideous wild card system, the game has been transformed into a travesty of cheap homeruns, and records that mean nothing any more, and a regular season that is beginning to rival the NBA in triviality.


 


This was all brought about by the powers that be creating a tighter-seamed baseball, wound so tightly that when it is hit it ricochets off the bat like a pinball and flies out of the ball park no matter where on the bat the hitter connects with the ball. Balls are hit off the end of the bat and the handle and they go out.


 


Tom Seaver proved the baseball of today is different than 25 years ago on live television, dissecting a baseball from 1969 and a circa 2000 baseball. He showed the difference in the winding, the tighter seams, and I believe the smaller core. Yet, the media still bought the propaganda that the baseball has not substantially changed. The keyword being substantially.


 


But baseball needed to excite the fans after the strike.


 


Then the Major League Baseball geniuses said let’s shrink the strike zone. This made the mediocre big league pitcher worse (more walks, forcing him to throw down the middle), and took away the sleight-of-hand of the superior pitchers who worked the corners knees and  letters. Now the strike zone is knees to the belt. That forces you to throw down-the-middle – not a good place.  The men in blue are also not giving pitchers the black or the knee pitch.  The formula is set for disaster: less strike zone, livelier ball, sucker locations demanded.


 


Then, of course, there were the cheaters: the homerun king with the corked bat (how many cork bats had Mr. Sosa used? How come no one asks that question?)  There were the incredible productions of Mr. McGwire, Mr. Bonds, Mr. Sosa. The records of the Babe, Roger Maris fell by the wayside — a little too easily, I felt at the time.


 


The media chalked this up to the narrower strike zone and superior stronger athletes. This was what was written about the homer barrage of the late 90s.


 


Did any one write about steroids? I can’t recall that even being mentioned by any leading sportswriter when Sosa and McGwire and Bonds were being hailed.


 


Well, now the public knows differently.


 


Steroids may have been taken by more than Messrs McGwire, Sosa and Bonds. How many other inflated performances were there? Does baseball care? Did their teamates care?


 


Baseball has never cared. I happen to recall Steve Howe who was involved with drugs seven times and baseball simply welcomed him back.


 


Well now we have an opening day or night, as it were where fans have to wonder, how many out there are enhancing their performances with junk?


 


How many still remain? How will baseball enforce a no steroid policy?


 


It has been pointed out to this reporter that there never was a ban on steroid use in baseball. So the players did nothing wrong.


 


Well if gaining an advantage by drugging yourself isn’t wrong what is? It is why drugs are not allowed in horse races.


 


Well there should have been a ban. So does that make it all right to cheat, just because you can?


 


But, I allege it was all part of the major league baseball schtick: a phony homerun race, great hitting, no one cared. The message baseball has sent to players is it’s all right to cheat as long as your bottom line is fine.


 


A real commissioner, a leader would order mandatory drug testing of every player right after opening day. Those testing positive would be banned for life. Contracts terminated.


 


But Bud Selig is no leader. He is no Kenesaw Mountain Landis.


 


No media dwelt at length on what steroids did to the NFL’s Lyle Alzado (they killed him young). We expect that the same will happen to those pseudo-stars who have used steroids.


 


The Steroid Stars’ legacy is not being some of the great players of all time. Their legacy is that of the Black Sox – the men who forever tarnished the integrity of the game. The Steroid junkies make a mockery of the greats who perhaps played with no more vices than hot dogs, alcohol, and womanizing and still hit them out with a real strike zone against real pitchers, the Spahns, the Koufaxes, the Groves, the Three Finger Browns.


 


The game is at its lowest ebb in my opinion.


 


Commissioner Bud Selig, the owners, the managers, the trainers, the team doctors and the sportswriters of America have presided over this national tragedy. They gave us a phony game.


 


 More so than the Black Sox Scandal of 1919, the steroid scandal calls into question the very nature of the “competition” we will see today.


 


I see no point in ever watching another major league game because I do not know what I am seeing. It has taken on the odor of a fixed horse race – a figure skating competition where the competitive balance is compromised. The strike zone inconsistent. Players unversed in the fundamentals.


 


 


I have scorn for the sportswriters, those pressroom buffet hogs who have as much nose for news in the club house as Fox News. I have to wonder at how the sportswriters are rehabilitating the local abusers of steroids on local teams in print.   


 


The steroid users are not strong people. They are weak. They are small.  To think that team management did not know they were taking is laughable. Junkies is what they are.


 


I weep for this beautiful game, I weep for myself and the loss of innocence, and have nothing but scorn for those entrusted with the game who have betrayed it by their dishonesty, their acceptance of  performance-enhancing drugs on members of their team, their aggrandizement of profit at the expense of integrity. You have allowed this.


 


It saddens me that I can no longer make myself care when the Bombers take the field.


 


I’ll go watch the New Jersey Jackals, the Toledo Mud Hens, the Harrisburg Senators, the Norwich Navigators, the Lowell Spinners, the PawSox, the Cedar Rapids Kernels, the Arkansas Travelers, the Chattanooga Lookouts, the Modesto Nuts, the Rochester Red Wings, the Buffalo Bisons, the bushleagues – the wonderful minors – where they’re still playing to make the show.


 


Where they pay you in dirt, and  in order to make the bigs, you have to agree to play for less dirt. You give them all the hustle you got, and you still might not make it. As it turns out the minors are the major leagues, and Major League Baseball is the bush league.


 


I’ll still root for the Twins — and I admire the Red Sox for their great achievement last fall. But I never saw an inning.


 


(Thought I’d go to the tube, last fall,  got as far as the knob, would have turned it on but what for? They would have asked me to care, and I don’t get care much any more.)


 


The steroid stars insult the honest effort and hustle of those less gifted, by tarnishing the record book, destroying the game’s sense of fairness.


 


Their records should be expunged from the game. 


 


What would Judge Kenesaw Mountain Landis have done with these guys? He would have thrown them out. And removed all their achievements. No question.


 


Baseball, fastpitch softball they are still the greatest games. I still love a ballpark or  a ball field. And I  will watch a game I pass by in progress. I long to play it.


 


It fascinates me how those in charge of the game think so little of it. Of those players gifted enough to play the game for money are so insecure that they cheat. Who do not think of us. Of the effects their actions have on  the children who idolize them.


 


I find it hard not to root.


 


But I am like a lover who has been betrayed once too often. It is hard to care any more when baseball has betrayed your love once too often.


 


As Jim Bouton wrote at the end of Ball Four, when he was thinking of whether he would go and pitch in an industrial league like the Cincinatti Reds Jim O’Toole, who was still trying to get back into the bigs, playing for the Ross Eversoles in an industrial league. Bulldog Bouton wrote: 


 


“Then I thought, would I do that? When it’s over for me, would I be hanging on with the Ross Eversoles? I went down deep and the answer I came up with was yes. Yes, I would. You see, you spend a good piece of your life gripping a baseball and in the end it turns out that it was the other way around all the time.”


 


It is easier for me to think about baseball’s past.

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The Feiner Report: Government Official Wants to Delay Tax Collections! Halleluja

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WPCNR THE FEINER REPORT. By Town of Greenburgh Supervisor Paul Feiner. April 2, 2005:  I believe that there should be a change in the law so that Westchester County residents will not have to pay the county, fire, sewer and town taxes in April. Currently, everyone has to pay their federal and state taxes the same month. The law should be changed so that local taxes would be due another month.


 This would make it easier for many people who find it difficult to pay their local, county, state and federal taxes the same month.


In addition, the law should be changed to provide people with an opportunity to pay a portion of their taxes at given times during the year.


Residents of Westchester currently pay half of their school tax bills in September and the other half in January. But, county, local taxes must be paid in one lump sum. It’s very hard for some people who live on fixed incomes. We have to look for ways to make it easier for people to pay their taxes, especially since the percentages of the tax increases are getting to be very high.


PAUL FEINER


Greenburgh Town Supervisor

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Appellate Court Tosses Ginsburg-F & J Claim on 240 Main. Clears Way for 221 Appr

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WPCNR WHITE PLAINS LAW JOURNAL. April 2, 2005. UPDATED 12:45 P.M. E.S.T.: The Appellate Court, Second Circuit, in Brooklyn ruled this week upholding (in effect) Louis Cappelli’s purchase of the 240 Main Street (Corner Nook, Main Street Bookstore and deli) property. The decision orders F & J Continental Food Corp. to assign its right of first refusal to Cappelli Enterprises within 30 days. 



Cappelli Hotel & Condoplex Work In Progress. Photo by WPCNR News


 The Common Council is scheduled to take up a possible vote on approving Mr. Cappelli’s 221 Main Hotel & Condominium project for 40 stories each tower Monday evening. The decision would appear to clear the way to provide Cappelli the ability to satisfy his affordable housing committment on that hotel project by building them on the 240 Main Street site, should he choose to do so.


Appellate judges  Thomas P. Adams, Fred T. Santucci, Gloria Goldstein and Stephen G. Crane, ruled “the agreement included all essential terms, F & J’s contention that there there is  a distinction between fair market rent and market rent is not supported by any authority. The fact that what constituted fair market rent was subject to arbitration did not render the option agreement indefinite.”



THE HOT CORNER: Dispute over whether Louis Cappelli had the right to purchase 240 Main Street was thrown out this week by the Appellate Court. Property is shown, center of picture. City Center garage is in the background. Photo from WPCNR News Archive.


The justices concurred that F & J ‘s protest that Mr. Cappelli put them under duress did not hold water, noting “where a party (F & J) has accepted the benefits of an agreement and then seeks to repudiate the agreement on the ground of coercion, it must do so in a timely fashion or any objection is waived.”  (F & J entered into the option agreement with Cappelli June 22, 2001, and it was not until May 14, 2003, that F & J raised objections to the agreement).


Mr. Cappelli has told WPCNR that F & J had sold him the right of first refusal, and that F & J had sold the right to continue its lawsuit to Ginsburg Development Corporation, which has been seeking to use the suit to block Mr. Cappelli from erecting 42 units of affordable housing on the 240 Main Street site. Building the units there would  satisfy Cappelli’s affordable housing commitment to the city for the City Center and his 221 Main Street Hotel and Condominium complex (scheduled for a possible approving vote Monday evening.)



A Domain on Main for the Common Man and Woman: The affordable housing apartments/condos Louis Cappelli is thinking of building on the 240 Main Street site. Photo by WPNCR News.



THE FIT WITH “THE PINNACLE:” A Cappelli Enterprises graphic showing an 8-story Affordable Housing building on 240 Main Street and a 5-story Affordable Housing complex adjacent the Ginsburg Development Corporation planned Pinnacle complex. The Pinnacle is the larger building in each picture. Photo, WPCNR News Archive.


In order for the Appellate Court decision to be appealed, the Ginsburg Development Corporation counsel would have to ask the Court of Appeals to hear the case, (seek leave for appeal). They are not automatically entitled to appeal it to the higher court, because the decision was unanimous.


The complete decison follows:


Decided on March 28, 2005


SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARMENT
THOMAS A. ADAMS, J.P.
FRED T. SANTUCCI
GLORIA GOLDSTEIN
STEPHEN G. CRANE, JJ.


DECISION & ORDER


2003-09898


[*1]Cappelli Enterprises, Inc., appellant,

v

F&J Continental Food Corp., respondent, et al., defendants. (Index No. 8244/03)






Delbello Donnellan Weingarten Tartaglia Wise & Wiederkehr,
LLP, White Plains, N.Y. (William E. Dumke and Alan
Scheinkman of counsel), for appellant.
Saretsky Katz Dranoff & Glass, LLP, New York, N.Y. (Alan
G. Katz and Eric Dranoff of
counsel), for respondent.


In an action, inter alia, for specific performance of an option agreement contained in a lease, the plaintiff appeals, as limited by its brief, from so much of an order of the Supreme Court, Westchester County (Dillon, J.), dated October 1, 2003, as denied its motion for summary judgment on its first cause of action seeking specific performance of the option agreement and on its second cause of action for a judgment declaring that the defendant F&J Continental Food Corp. forfeited its right to any additional consideration pursuant to the terms of the option agreement.

ORDERED that the order is modified, on the law, by deleting the provision thereof denying that branch of the plaintiff’s motion which was for summary judgment on its first cause of action for specific performance of the option agreement and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements; and it is further,

ORDERED that the defendant F&J Continental Food Corp. shall deliver to the plaintiff an assignment of its right of first refusal within 30 days after service upon it of a copy of this decision and order.

By option agreement dated June 22, 2001, contained in a lease, the defendant F&J Continental Food Corp. (hereinafter F&J), gave the plaintiff an option to purchase its right of first refusal with respect to its landlord’s property for the total price of $82,500, $27,500 due upon the [*2]signing of the option agreement and the remaining $55,000 due upon the exercise of the option. As further consideration for the option agreement, the plaintiff agreed that if it purchased the property it would extend F&J’s lease for a period of 10 years at market rent or at the plaintiff’s election relocate F&J to a comparable location at fair market rent. If there was a disagreement about fair market rent, the issue would be determined by arbitration.

F&J claims that the agreement was void for indefiniteness, duress, and overreaching. With respect to indefiniteness, the courts should endeavor to hold parties to their bargain and the definiteness doctrine is a doctrine of last resort (see Marshall Granger & Co. v Sanossian & Sardis, AD3d [2d Dept, Feb. 28, 2005). The agreement included all essential terms. F&J’s contention that there is a distinction between fair market rent and market rent is not supported by any authority. The fact that what constituted fair market rent was subject to arbitration did not render the option agreement indefinite (see Matter of 166 Mamaroneck Ave. Corp. v 151 E. Post Rd. Corp., 78 NY2d 88, 91).

With respect to duress, F&J’s president, Frank Lombardi, claimed that the plaintiff threatened to use its influence to have the City of White Plains condemn the property if he did not sign the option agreement. Lombardi further claimed that he did not retain an attorney because the plaintiff promised to take care of him, and the unequal bargaining power between the plaintiff and F&J gave rise to overreaching. Lombardi raised these claims for the first time by letter dated May 14, 2003, after F&J received and retained the $27,500 downpayment, and after F&J’s counsel demanded an additional $1,000,000. Lombardi admitted that his counsel asked for an additional $1,000,000 from the plaintiff but claimed that this was “a settlement proposal to compensate me for the monies that I believed I was to receive.”

Where a party has accepted the benefits of an agreement and then seeks to repudiate the agreement on the ground of coercion, it must do so in a timely fashion or any objection is waived (see Capstone Enters. of Port Chester v County of Westchester, 262 AD2d 343, 344). In this case, the claim of duress was not raised in a timely manner, and was only raised after F&J had ratified the agreement. Further, Lombardi failed to set forth a sufficient factual basis for his claims (see Lane-Real Estate Dept. Store v Muchnick, 145 AD2d 469).

F&J further contends on appeal that this controversy has been rendered academic since the owner entered into a contract with the plaintiff to sell the property directly to it. However, the plaintiff was entitled to an assignment of F&J’s right of first refusal to determine the parties’ rights in the property and settle any claims F&J may have. There was no basis in the record to deny the plaintiff the assignment of F&J’s right of first refusal.

Summary judgment was premature with respect to the issue of F&J’s rights to additional consideration pursuant to the option agreement and the parties’ rights to damages. Further, we note that any dispute between the plaintiff and F&J as to what constitutes fair market rent is subject to arbitration.

F & J’s remaining contentions are without merit.
ADAMS, J.P., SANTUCCI, GOLDSTEIN and CRANE, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court

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