WHITE PLAINS CITIZENETREPORTER 3,374,995 VISITS IN ONE YEAR—65,000 VISITS A WEEK BY 985,281 VISITORS

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WPCNR Evening City Star Reporter. By John F. Bailey. December 6, 2002, 1:15 A.M. UPDATED 12 Noon E.S.T.: New York Presbyterian Hospital and the City of White Plains mutually agreed Thursday that the Hospital would postpone its intention to open a second Article 78 legal front in the ongoing struggle to build a biotech research and proton accelerator facility project the Common Council approved last August 5.

THE PAPER CHASE CONTINUES: The Tolling Agreement signed by the City and New York Presbyterian Hospital Thursday, giving the parties 32 days to work out hospital objections to the terms of the approval of their biotech research and proton accelerator facility on their property.
Photo by WPCNR Legal

The city and New York Presbyterian Hospital have agreed to a 32-Day “Tolling Agreement.” The hospital has agreed to postpone filing an Article 78 proceeding they had planned to file Thursday (120 days after the August 5 approval of their project), to overturn conditions of Special Permit the city attached to the proton accelerator-biotech research center project. The “Tolling Period” will expire January 6, 2003.

A Subdued City Hall.

On the early winter’s snowy evening, George Gretsas, Executive Officer for the City of White Plains, announcing the agreement Thursday told WPCNR the hospital informed the city of their intention of filing an Article 78 action to overturn some of the 80 pages of conditions the city attached to their approval of the project last August in the Findings Statement.

The new Article 78 action, if filed by New York Presbyterian Hospital, would have been the second Article 78 action filed on the Council’s historic August 5 decision, and still might be if a common ground is not established on the conditions the hospital is protesting.

Concerned Citizens for Open Space filed an Article 78, represented by Oxman, Tullis, Kirkpatrick and Whyatt last September. The CCOS suit in essence protests the Council had not given a thorough review of the project and that a zoning change was required, not a Special Permit. That suit is in the hands of Judge Richard Mollea in New York State Supreme Court, according to the most recent information WPCNR has been able to elicit from the embattled City Legal Department.

Not the Approval the Hospital Had in Mind

Gretsas said the hospital expressed to the city that they had problems with some of the specific conditions set forth in the Common Council’s Findings Statement and Special Permit.

Gretsas, raising his eyebrows with with an air of puzzlement, speculated that some of those conditions might be the Council restricting research to medical use, city oversight of research safety, and possibly restrictions on biosafety levels of the search. He wearily cautioned this was outright speculation on his part, indicating the city was mystified why the hospital was considering an Article 78 suit on an approved project, noting,

“The city and the hospital hope to discuss issues of mutual concern,” Gretsas told WPCNR, “concerns about the conditions imposed on them by the city on August 5. The city will discuss with the hospital the community needs and to gauge the hospital’s willingness to address some of these needs.”

Council consulted.

Before the city consented to the “Tolling Agreement,” Gretsas said the ramifications were discussed with the Common Council. He said the Council is willing to sit down with the hospital and discuss the hospital’s concerns that would cause them to bring a lawsuit on the conditions of their approval.

King: Council Has Not Met on Tolling AgreementKing

Councilman William King checked in with WPCNR News, upon learning of the Tolling Agreement through this article and wanted WPCNR to make clear the Council had not met as a body on the Tolling Agreement.

Mr. King made this statement to WPCNR:

I think you should make clear in your website article that the Council did not meet yesterday and we did not sign the agreement. Each of the councilpeople was contacted by phone. I was contacted by Ben (Boykin) late Wednesday night. Rita (Malmud) is in Florida. I don’t know if any councilpeople were at the gathering yesterday you refer to. Just so your readers are clear, the Council has not met on any NYPH issue, in public or in exec session, since the approval (6-1) was given on 8/5/02. I also have never heard of a tolling agreement before and do not know what it is or how it gets its name.

Déjà vu :Confidential Talks Again to Avoid a Lawsuit?

As the agreement was explained to WPCNR, a chilling atmosphere of déjà vu settled over the gathering. The Tolling Agreement was eerily similar to the intrigue of intimidation that leaked out of secret sessions with New York Presbyterian Hospital in January, 2001. At that time, the hospital in a very similar way had a lawsuit going, and wanted to discuss with the city terms for dropping their suit.

The Common Council, briefed behind closed doors by a phalanx of hospital and city attorneys, agreed to the hospital’s terms for dropping their lawsuit against the city, which was immediate consideration of their biotech research and proton accelerator project.

In those secret meetings, WPCNR learned the hospital threatened to sue the city for upwards of $500 Million or more (the city budget is $100 Million), if they did not review the proton accelerator project. When the city agreed to consider the project they had turned their back on in July, 2000, the hospital dropped their Article 78 action. Subsequently, a year and a half review ultimately lead to this August’s council approval.

Hospital and Administration Talk First. Then Council to Join In.

Gretsas said meetings between the administration and the hospital would take place in executive session, over the next four weeks. The talks, he said would be held in confidence because the concerns to be considered were principle lynchpins of the hospital’s intended litigation.

Common Council’s turn.

Mr. Gretsas said that upon discovering what the hospital’s issues are with hospital representatives and city department heads, then there would be “a dialogue” with the Common Council in Executive Session, to determine how the matters might be resolved to both parties’ and the Council’s satisfaction, if there was common ground for compromise.

It appears at this time, the principles of these talks will only be the Common Council, city department heads, and New York Presbyterian Hospital representatives and principles.

Fool’s Gold?

Gretsas cautioned about the public getting their hopes up that the hospital might be willing to trade some of their land for city concessions on the approval terms: “It could very well be that there’s nothing really to discuss.”

Gretsas said the city is very much aware of the restrictions on the original settlement of the first New York Presbyterian Hospital Article 78 action, which prohibit the city from extorting and demanding any exchange of land for city concessions.

The Fine Print.

In the 2-Page “Tolling Agreement” released by the city Thursday, the hospital has agreed to refrain from the commencement of an Article 78 proceeding challenging the Special Use Resolution by the aforesaid deadline (December 5, 2002), and has agreed to enter good faith negotiations to discuss the mutual concerns of the parties.

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WPCNR WHITE PLAINS LAW JOURNAL. By John F. Bailey. December 5, 2002:A WPCNR legal consultant familiar with election law has advised that Attorney General Eliot Spitzer’s lawsuit filed in New York Supreme Court yesterday granting Larry Delgado quo warranto relief after seven months of research by the Attorney General’s Quo Warranto Review Panel, transfers jurisdiction for deciding who retains or ascends to the Common Council seat now occupied by Glen Hockley to the New York State Supreme Court.

Spitzer Speaks
Photo by WPCNRLegal

THE ACTION PARAGRAPH
Photo by WPCNR Legal

Unchartered Waters

Our source says the case is in unchartered waters at this time, with several matters “up in the air.” Among the matters, is which judge will get the case. It is speculated that it could return to the Judge who first ruled on the historic Delgado-Hockley case: Judge Francis Nicolai, based on his familiarity with the case.

On the other hand, if a new judge were assigned, the case would begin anew, with the decision on whether or not a jury would be convened, up to the defendents, Mr. Hockley and Mr. Delgado. If the two defendents disagreed as to whether a jury trial was desired, the judge or the plaintiff (Attorney General) could make the decision.

A second minor issue to be decided, would be whether or not Mr. Delgado should be considered the defendant or not.

Jury Selection Would Be Interesting

Speculating with our legal correspondent, they allowed that jury selection would be interesting: issues to be considered would be rather or not White Plains residents could or could not be on the jury, racial make up of the jury, political affiliation of the jurors, how familiar they were with the Delgado-Hockley case history, being just a few issues discussed.

Affidavit Validity a Keystone

Our armchair analyst, noting the affidavits filed by Mr. Delgado, 104 in all, which the Quo Warranto Review Panel commented on in their Quo Warranto Report and Recommendation said that Mr. Hockley’s strategy to hang on to his seat would hinge upon creating doubt about the affidavits submitted by Mr. Delgado as being genuine expressions of voter actions on that fated November 6, 2001. However, our analyst said that post-election result affidavits of voter preference have been found to be admissible evidence in similar cases.

The Quo Warranto Report states,

Delgado told the Panel that he obtained the voters’ names from the Board of Elections and solicited their affidavits by sending volunteer notaries (among whom were his wife and his Republican Party running mate, Michael Amodio) door-to-door. Each affidavit states, in pertinent part,

According to the voting logs, 103 of the 104 individuals whose affidavits Delgado submitted to the (Quo Warranto) Panel were registered to vote and did, in fact, vote in the 18th Election District on November 6, 2001.

The Panel’s report comes to the conclusion that, It is undisputed that the voting machine in Election District 18 mechanically malfunctioned after 39 votes had been recorded for Delgado in Row 10

Report Declares Delgado the Winner by 17 votes. Affidavits genuine.

The report takes the interesting position that Delgado’s 103 affidavits make him the winner of the Council Seat, and throws out Hockley’s assertions that the affidavits are not reliable. The report reads in part,

According to the recanvass, Glen Hockley received a total of 6,140 votes and Larry Delgado received a total of 6093 votes, a margin of 47 votes in favor of Hockley. We note Hockley’s objections to the reliability of the affidavits Delgado submitted, but find those objections to be unfounded. Therefore we credit the 103 affiants, whom the voting logs show to have voted in the 18th Election District on November 6, 2001, who claimed they voted for Delgado on Row 10 A. Delgado’s vote total is thereby increased by 64 votes, (103 votes minus the 39 votes originally recorded on Row 10 A). That gives Delgado a revised total of 6,157 votes (6093 plus 64), or 17 more votes than Hockley received (6,140).

Report Sites Case Law Gives Court the “right to Examine Voters”

The panel’s report justifies its declaring Mr. Delgado the winner by citing thusly,

In a quo warranto action, however, the court is able to determine the will of the electorate beyond a mere mathematical possibility because it has the right to examine voters, as established in Deister v. Wintermute (1909), including the right to “receive and credit the affidavits of…electors that they cast their vote on the voting machine for a particular candidate.”

The Judge is Da Man

WPCNR’s Brief Analyst noted that the Attorney General is passing the baton to the Judge of the New York State Supreme Court to determine the outcome of the election, and that includes the jurisdiction to declare either Delgado or Hockley the winner outright, or set aside the election and declare a new election.

Here we Go Again?

Looking into their crystal ball, the attorney sighed and told us that “of course, whatever decision the judge makes, it could be appealed,” but added that the case at the appellate or Court of Appeals levels would only be argued on the merit of the decision made, not a full reexamination of the affidavits or other evidences.

Quo Warranto Report is Not Court-gathered, admissable Evidence.

Before our sands of time with the barrister ran out, he noted that the findings of the Quo Warranto Panel were not evidence gathered by the court, and that if the Judge assigned the quo warranto action felt compelled to go to a jury trial or felt it necessary to conduct an examination of the validity of the affidavits he or she might very well do so in the proceedings.

It is expected that a judge will be assigned in the next two weeks and that the action will not begin until after the 1st of the year.

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WPCNR AFTERNOON TRIB & POST. By John F. Bailey. December 3, 2003:Attorneys for former councilman Larry Delgado of White Plains, were notified today that Eliot Spitzer’s Quo Warranto Review panel has found in favor of Mr. Delgado and will file papers today to bring a quo warranto procedure in supreme court in White Plains to restore Mr. Delgado to the Common Council.
Jeffrey Binder, attorney for Mr. Delgado during the councilman’s three tier court fight to secure a remedy for a jammed voting machine, reported the Attorney General’s office decision today.

Mr. Binder said he thought the procedure would be a jury trial, not a bench trial, and the action would be to restore Mr. Delgado to the Common Council.

He said that an attorney from the Attorney General’s Office, Joel Graber, a seasoned and knowledgeable election law attorney would be representing Mr. Delgado’s interest in the quo warranto procedure in which the Attorney General will seek to remove Mr. Hockley from office as a “usurper,” the essence of any quo warranto action. Binder speculated that the action could begin within two to three weeks, almost nine months since the Court of Appeals threw out Judge Francis Nicolai’s decision, and the Appellate Division rulling calling for a new election between Larry Delgado and Glen Hockley.

Binder said the Quo Warranto Review Panel informed him that they “appreciated our (Mr. Delgado’s) patience.”

Mr. Binder said the last quo warranto action in the state was executed in 1990, successfully.

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WPCNR KING KOMMENTS By White Plains Councilman William King. December 2, 2002:The Councilman went home for Thanksgiving to good old Wheaton, Illinois, and files this report on a Thanksgiving downtown promotion for White Plains.
I was back in the Chicago area over Thanksgiving, where I grew up. Wheaton is like White Plains. Wheaton is the county seat of DuPage County right outside of Chicago and has tall apt. buildings near the train station, single family homes everywhere else, and a downtown that is probably 3-5 years ahead of ours, with all nice stores, home grown plus chains including Starbucks, etc.

Anyway, they have a tradition going now that is very popular – a night-time holiday celebration the day after Thanksgiving. We missed a little parade they have (probably like the one in White Plains that is on a Saturday late morning) but they also have high school kids dressed up in various character costumes standing in front of stores that gets the little kids excited (they had Barney, the Grinch, Cinderalla, Blue from Blue’s Clues, someone dressed up as a large slice of pizza in front of a Pizza restaurant, Darth Vader, etc. … everybody but SpongeBob Square Pants). Cinderella was actually inside a jewelry store, maybe because it was so cold but it also drew people into the store, including us.

Central Park Carriages in White Plains?

They also had horse-drawn carriage rides where they suggested a donation and a free hot chocolate stand (that ran out of hot chocolate). The carriages, which we waited a half hour for, went around a loop maybe 4 blocks in 5 minutes.

It was a relatively inexpensive way to create some local excitement – people came from all around as Wheaton’s event has drawn attention, such that other suburbs are copying them. We should copy Wheaton and then other towns in Westchester will copy us.
Councilman William King

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WPCNR WHITE PLAINS VARIETY. From Michelle Schoenfeld. November 26, 2002: Artwork of five White Plains High School students is being exhibited at the Rye Arts Center through the month of December, along with work from other Westchester high school students.

Students whose work was selected are Alana Fitzgerald, Jennifer Lev, Alison Miller, Jennifer Russell and Jillian Salik. Their teachers are Judith Brindley, Robert Dancik, Mary Fennell and Mark Hauge.