FLASH! Hockley Seeks “Stay” of Election in Appellate Court

FLASH!:Glen Hockley’s attorney, Adam Bradley is seeking a stay of the proceedings Tuesday in Judge Francis Nicolai’s decision issued last week calling for a new election in White Plains District 18, December 17-20.
WPCNR has learned from Rita Malmud, President of the White Plains Common Council, and Jeffrey Binder, attorney for Councilman Larry Delgado, that Mr. Bradley will argue the merits of a stay before Judge Sondra Miller of the Appellate Division, Second Department on Tuesday at 3:00 PM at 140 Grand Street, White Plains.

No Notice of Appeal has been received yet by Delgado attorneys. Mr. Binder said that he would be arguing against the stay.

Delay of Implementing the Remedy.

In effect, Binder characterized the maneuver as seeking to delay the continuation of the election, scheduled for next week, pending an appeal.

Technically, Binder says, a judge does not consider a stay unless a party files an appeal in a matter brought before the court. Binder said he expects to receive a Notice of Appeal either in court tomorrow or in sooner.

Call for a “Stay,” Would Indicate an Appeal will be Launched.

The argument for a stay, Binder says, comes under Section 2201 of the Civil Practice Law & Rules, which allows for a stay “in a court in which an action is pending upon which terms as may be just.”

Since it is Binder’s understanding that an action has to be pending before an appellate judge can rule on a stay, Binder expects to receive a Notice of Appeal simultaneously. Binder said he had no knowledge of a Notice of Appeal filing, or in his possession as of 1:30 PM Monday. Binder said he would be arguing that a stay is not just.

]A stay obviously gives Bradley more time to work up his appeal case, and also has the effect of moving the election ever forward in time to Mr. Hockley’s legal advantage.

Common Council Could Appoint Hockley, Weakening Nicolai Argument

A stay that could push the election forward in time considerably, may mean “Advantage Hockley,” because of the White Plains City Charter. The Common Council, when there is a vacancy on the Common Council, is empowered to appoint a person to fill the vacancy, reports Edward Dunphy, White Plains Corporation Counsel. With a Democratic majority on the council, the natural choice would be to appoint Mr. Hockley to his seat, should the Appellate Court not reach a decision on the appeal by January when Mr. Delgado’s term officially ends.

Jeffrey Binder, attorney for Delgado in the matter, said, “If we get to that point, we would seek to enjoin the Common Council from filling that position. It (a council appointment of Hockley) could mean the Judge’s (Nicolai’s)argument that he has the power to do this (order a new election) rather than the attorney general (of the state of New York), would be undermined.”

Delay the Appeal and Try to Win Strategy a Possibility by Hockley Camp.

If a stay is not granted, however, with the 16-day “Window of Appeal,” Glen Hockley might try and go out and win the election next week outright. A formidable in-person campaigner, and dedicated to the principles he believes in, Mr. Hockley lives by the Japanese code, Sonsin, meaning, “focus.”

Hockley could focus his proven ability-to-campaign energy and easily visit all 366 voters in the critical District 18 by “Election Day II” next week. If he won, in the evenly matched district, it is “end of story,” and he is on the council. If he lost to Mr. Delgado, there is another option.

If he loses the election, he could still appeal the Nicolai decision.

Should Hockley lose the “continuation of the election,” he could bring an action to the Attorney General office in a quowarranto proceeding contending that Mr. Delgado was a usurper of a council seat that was rightfully his.

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NYPH Gives City Choice of a Proton Accelerator on any of 3 interior sites.

Updated with Pictures, Dec. 10:A media briefing conducted by New York Presbyterian Hospital Tuesday, December 4, revealed the hospital is willing to build on three interior sites within their campus, two of them are a considerable distance away from Bryant Avenue. The hospital views financing of the facility as being dependent on the approval of the Common Council of the proton accelerator project.
The hospital said it was considering a “public-private” partnership to finance the proton accelerator project, and needed Common Council approval before they could begin to solidify the $265 million projected to finance the project.

The briefing disclosed that the proton accelerator was judged by the hospital environmental evaluators to be safer than an MRI facility, and posing no radiation threat, and generating no radioactive waste.

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HOSPITAL HOSTS THE WHITE PLAINS MEDIA: On Tuesday, December 4, New York Presbyterian Hospital “round-tabled” with, (clockwise, L to R), Alex Philippidis, back to camera, Westchester County Business Journal, James Benerofe, SuburbanStreet.com, Susan Chang,White Plains Watch, shown in news conference with (to right of display board), Constance Hildersley, Vice President for Real Estate, Geoffrey Thompson, Thompson & Bender, and Willa Brody, Hospital public relations, and Susan Elan, The Journal News, was also present. WPCNR PHOTO.

With the White Plains media present, New York Presbyterian Hospital executives, Connie Hildersley, Vice President for Real Estate, Willa Brody, public relations, and their spokesman, Geoffrey Thompson, walked reporters through a summary of the Draft Environmental Impact Statement, found by the Common Council last week to be “complete.” A public hearing is scheduled on the DEIS January 7, 2002 at City Hall.

The DEIS addresses other potential sites where the hospital has gone on record as of Tuesday of being willing to construct the Bourne biomedical research lab and proton accelerator.

Each of the three sites identified would receive traffic from a new entrance drive from Bloomingdale Road to be constructed adjacent just South of the Bloomingdale’s site, with no traffic anticipated on Bryant Avenue. The alternate site suggested farther West off Bryant Avenue also references a “secondary entrance” on Bryant Avenue.

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ORIGINAL PROPOSED BRYANT AVENUE SITE:The original plan for the proton accelerator building, to right, and the new Bourne Research Lab, left, called “Plan B,” calls for the cancer-fighting treatment facility to be located in one of two large office buildings built on property immediately accessible by the Bryant Avenue gate, at bottom of plan. Constance Hildersley stated in the briefing that the hospital is willing to move the accelerator site. Plan transcribed from NYPH DEIS by WPCNR PHOTO.

Asked by WPCNR if the Common Council wanted the hospital to build on any of the three sites, if the hospital would do that (build on one of alternate sites), Hildersley said, “Any of the sites that meet our program are viable. If it meets our programs, it’s acceptable to us. Sites 6,7,8 are viable alternatives.”

The matter of consideration of alternative sites for the proton accelerator and biomedical-biotech research laboratory was demanded by the scope of Draft Environmental Impact Statement. Alternative site suggestions from the hospital have long been asked for by all Common Council members.

WPCNR walks the sites with NYPH’s Brody

In order to get a view of precisely what would be the impact on the surrounding neighborhood by the three locations proposed in the DEIS, WPCNR asked NYPH if we could have a walk-through of the sites, and a photo opportunity.

The walk-through was granted last Wednesday by Ms. Hildersley, under the condition that no pictures would be taken. Ms. Brody advised that the hospital will be providing visuals of the three potential sites for the public at the January 7 hearing, and did not want WPCNR photo composition judgment to convey an impression to the public before the hearing.

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AERIAL VIEW OF SOUTH END OF NYPH CAMPUS shows area where original two-building construction on Bryant Avenue was proposed, and alternate sites. North is at the top of the picture. To orient the reader: the road at bottom of picture is Bryant Avenue. The entry off of Bryant Avenue, center, foreground, is the Bryant Avenue Gate.The original Plan B buildings are proposed to go on Bloomingdale Road on the two fields split by Bryant Avenue Gate.The road at the left of the photo is Mamaroneck Avenue, which forks to the right, turning into Bloomingdale Road. The square cutoff at top left of photo is Bloomingdale’s. Aerial view electronically transcribed from NYPH DEIS by WPCNR PHOTO LAB.

Thursday afternoon, December 6, Ms. Brody took WPCNR on a tour of Proton Accelerator Alternate Sites, identified as Sites 8,6, and 7. I list them that way because that was the order in which your reporter walked them with Ms. Brody.

William King’s favorite part of the Hospital property is one alternative.

Site 8 is the first site. It is the area known as the driving range, a sloping sprawl of meadow, rough-mowed of 7.5 acres. As Ms. Brody and I drove up, we parked at the road bordering the North edge of the site, and saw two golfers actually practicing shots. Ms. Brody, in an aside, told me Councilman King “loves this part of the property. He feels it is the perfect example of a meadow.”

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.AERIAL VIEW OF SITE 8,”THE DRIVING RANGE:” This technological cropping of the aerial view shown earlier, indicates the meadow proposed as Alternate Site 8. Aerial view was electronically transcribed from NYPH DEIS by WPCNR PHOTO LAB.

I looked across the meadow to the South.

The “driving range” was bordered by a row of approximately 20 stately evergreens on the East, (to my left, marching towards me). Beyond the evergreens were the formal gardens, which would not be touched. I gazed across the meadow to the South, noting a wide copse of mature trees due as I took in the East to West sloping fairway in front of me.

To my right, bordering the meadow (on the West) were thick woods. Ms. Brody explained the woods would be partially cleared to accommodate the west wing of the proton accelerator building and its new access road.

Brody advised that the large copse of trees bordering the South side of Site 8 would be removed to accommodate a portion of the Proton Accelerator building.

We walked across the meadow to the south, it took us about 10 minutes to traverse it. I noted the copse was filled with mature trees but not thickly forested and it had a slight arroyo in the middle leading to open rolling fields on the other side.

Access road for all three alternative sites will parallel Bloomingdale’s South drive.

Ms. Brody said a new entrance road would be cut through Site 7. Site 7 is heavily wooded property immediately south of Bloomingdale’s, located on the bluff above Cassaway Brook down in the gorge distinguishing the extreme Western portion of the hospital property.

Asked how wide this proposed entrance road was to be, Ms. Brody said that had not been determined, but indicated it could be either two lanes or four lanes, to accommodate left-right turns more feasibly. She showed me how engineers had marked the cut of the entrance road with pink tape affixed to trees on the densely wooded Site 7.

I noted how the pink tape sliced from directly South of the Bloomingdale’s building, along the edge of the steep wooded slope above Cassaway Brook below to the West. The pink tape led out to the edge of the existing concrete road leading to the aqueduct bridge where we were parked, then continued through the woods bordering the driving range on the South.

STACKED BUILDING DESIGN FOR SITE 8: Design of combined Proton Accelerator/Bioresearch lab proposed for Site 8 (and Site 7). Viewer should note building is gently bowed in the glass center tower section, so it resembles a boomerang. Dark exterior is proposed to be red brick. There is a lighter brick face also proposed. (See plan in previous illustration). Building design electronically transcribed from NYPH DEIS by WPCNR PHOTO LAB.

According to the DEIS, a five–story L-shaped building of 384,000 square feet would be built on the “driving range” meadow plus a parking garage. This “stacked scenario,” would accommodate both the proton accelerator and the Bourne Research Facility in one building. A total of 4.7 acres of open lawn would be removed. A total of 83 trees of the variety that lose their foliage, and 64 evergreen plantation trees would be removed to build the structure.

Site 6 is West of Bryant gate on Bryant Avenue set on rolling fields.

Once we reached the extreme southern end of Site 8, standing in the middle of the wide copse of trees, Ms. Brody pointed to rolling cleared hillocks immediately in front of me through the broad copse of trees at the rear of the driving range site. Beyond the gentle rise of knolls, I could see the buildings of Bryant Gardens Apartments through tall tree cover.

SITE 6 IS ENVISIONED FARTHER WEST ALONG BRYANT AVENUE: Second “hospital-preferred alternate “Site 6″ from the air, consists of the lower west meadow along the Bryant Avenue corridor, and sits below Bryant Avenue grade. It will take a portion of the woods above Cassaway Brook. West end of Bryant Avenue is at bottom of the picture. (Use overall aerial view at beginning of this report for reference.) Cropped aerial view electronically transcribed from NYPH DEIS by WPCNR PHOTO LAB.

Brody said this was the site originally envisioned as soccer fields in the ill-fated Plan A voted down by the Common Council on July 17, 2000. This site is the second alternative.

Site 6 moves Plan B West: two buildings, plus garage, lower than Bryant Avenue elevation.

Site 6 runs alongside lower Bryant Avenue, sprawls on 10.7 acres, and is below the street level of Bryant Avenue. Brody said the visual impact on Bryant Avenue residents would be less than the Plan B site further up East on Bryant Avenue, with the thickening tree border on the lower West end of Bryant Avenue creating more buffer for the residents.

As the hospital sees it, access to Site 6 will be from the planned new entrance paralleling Bloomingdale’s South entrance, we have described. No entrance, according to Ms. Brody, our site tour guide Thursday, was planned from Bryant Avenue, however the DEIS makes reference to a “secondary entrance on Bryant Avenue,” for Site 6.

Entry road to Site 6, takes out more woods.

The new entry drive, either two-lane, or four-lane, would be extended through the thick wooded border of trees on the Western edge of the driving range. Brody drew my attention to the pink tape marking the route of the newly proposed road through the forest border of the West edge of the Driving Range (Site 8)

The new access road, as I see it, cuts through thick woods to access the lower Bryant Avenue location. Just speculating here, but I cannot see how that woodsy border along the Site 8, leading to the Bryant Avenue Site 6 would be preserved if you are cutting a roadway through it. I think you lose most of it.

The access road to Site 6 appears to be perched on the edge of the gradual steep slope leading down to the Cassaway Brook gorge on the Western edge of the property. Construction on Site 6, though would preserve the wetland corridor and woodlands below Bryant Gate according to the DEIS.

Ms. Brody pointed out that most of the copse of trees we were standing at on the South edge of the driving range would be removed. The DEIS states 85 mature trees and 150 other trees would be removed in constructing the two buildings plus parking garage on Site 6.

SITE 6 PLAN IS A TWO-BUILDING PROPOSAL: It moves the Plan B configuration West to the edge of the steep slopes leading down to Cassaway Brook. Parking Garage (6 stories, partially underground sits inbetween the two buildings. New entrance road parallel to Bloomingdale’s Bloomingdale Road South entrance traverses wooded section beside Driving Range Meadow, and leads to the Site 6 complex. Dark shape is the stormwater basin. Site Plan electronically transcribed from NYPH DEIS by WPCNR PHOTO LAB.

Two Buildings Plus Parking Garage on Site 6, if Selected.

Should Site 6 be chosen, the hospital envisions two buildings, one housing the proton accelerator facility, the second building, the biotech labs, with a 6-story parking garage. The complex would house 384,000 square feet of space in two buildings, each 3-stories, or in one “stacked” 6-story building. The parking structure would be six stories in either case.

There would be no entry off Bryant Avenue at all, though there is a reference in the DEIS to a secondary access. Entry to the complex would be via the proposed Access Drive along the West perimeter of the Driving Range site.

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ALTERNATE SITE 7 IS “PRISTINE WOODLAND:” The final acceptable alternative build-site in the hospital view is located south of Bloomingdale’s sourthern driveway, above Cassaway Brook, and before the acqueduct entrance located at the Mamaroneck Avenue and Bloomingdale Road fork. The light colored block in upper left of this view is the Bloomingdale’s complex. The Mamaroneck Avenue, Bloomingdale Road fork can be seen at the left of the view. Aerial View electronically transcribed from NYPH DEIS by WPCNR PHOTO LAB.
Site 7, Formerly Earmarked for Fortunoff’s, Has Least Neighborhood Impact, But Levels 1,000 Trees.

As we walked back across the Driving Range, I noted to Ms. Brody that it appeared the least impacting site was right in front of us South of Bloomingdale’s in a thickly wooded area.

Brody agreed, but remarked Site 7 was an area that Barnabus McHenry, Chairman of the Hudson River Conservancy, considered to be the closest to what he described as “pristine woodland.”

Site 7 is thickly forested. You can see Bloomingdale’s on the other side of it, but not well, and you do not get much of a sense that there is a major department store there. This was the piece of property originally envisioned on the defunct Plan A to be the Fortunoff’s site.

The forested Site 7 sandwiched between Bloomingdale’s and the north side of the acqueduct road and occupies 5.7 acres. It slopes up to the Northeast and down to the west towards Mamaroneck Avenue. It is directly adjacent to the Bloomingdale’s entrance drive.

Staring at the wild ramble of trees shielding the sky, and noting how thickly the trees were spaced, I could see it would be very difficult to walk through that site to the Bloomingdale’s property without considerable effort, it was that thick with trees, (1,085 if them, according to the DEIS).

The DEIS estimates that clearing Site 7 would remove 1,000 “mature trees” and 85 trees for the construction of the new access road which would lead in from Mamaroneck Avenue. A portion of wetland would also be eliminated.

SITE 7 REQUIRES A 5-STORY STACKED BUILDING PROPOSAL: A 90-foot high building would be built housing both the proton accelerator and the new biotech research facility. Building could be shifted slightly differently. Advantage to this plan is that it is least offensive to the Bryant Avenue corridor, yet it is environmentally agonizing.Site Plan 7 electronically transcribed from NYPH DEIS by WPCNR PHOTO LAB.

One building plus a parking structure for Site 7 if selected.

According to the DEIS, the “stacked” building option is the only way Site 7 can be developed. If Site 7 is favored, a single “L-shaped” building of six stories (one underground), would be built with a separate 6-story parking garage. The combination proton accelerator and biotech lab would rise 90-feet and be visible from the Bloomingdale’s parking lot.

Financing Seen Easier to Get With Council Approval in Hand.

On Financing the project, Ms. Hildersley said that was not addressed:

“Financing is not a subject of an environmental review. It’s not part of the Draft Environmental Impact Statement. Financing is part of the ongoing activity we’re working with.” Hildersley said.

HILDERSLEY OF THE HOSPITAL SUGGESTS FINANCING EASIER ONCE APPROVAL IS GRANTED: Constance Hildersley shown at the December 4 media roundtable told WPCNR that a Common Council approval of the proton accelerator was a key component in speeding fundraising for the $265 million proton accelerator facility. Photo by WPCNR.

When pressed by reporters on the subject, Hildersley said that a public-private partnership was envisioned. She mentioned that M. D. Anderson, the cancer research facility in Houston is financing its proton accelerator facility with a public private financial arrangement.

She said the hospital saw the project costing $265 million, $100 million of which was for the cost of the proton accelerator.

Then she said a very meaningful thing: that financing was very difficult to get from the financial world without an approved project. This leads this reporter to believe that the hospital believes a Common Council approval of the accelerator/biotech facility would pave the way for attracting a syndicate of investors in the project:

“Our credibility goes up when we make a step,” Hildersley told me last Tuesday.

Conversely, a council denial would have a very negative impact on the hospital vision of its future. Asked about the scenario of a Council denial, Hildersley said, “We’ll do whatever we have to do.”

Media Briefing Gives a Summary of the Conclusions

Additional Facts coming out of the “Media Briefing:

*Timetable: Hildersley said if the proton accelerator were started in the late fall of 2002, it could be completed by 2005, with the complete facility finished by 2006.

* The Proton Accelerator has been evaluated and found to be a safer facility than a typical MRI facility. It generates no radioactive waste and releases miniscule discharges of radiation, that are not a threat. The accelerator causes no contamination of soils or ground water. It would not cause electromagnetic interference with cellular communications. It would produce no odors.

At the Loma Linda facility, there have been no noise complaints in 10 years, and little perceptible noise based on inspection of the existing site. The finding of the DEIS, as summarized in material given me at the briefing:

“The existing Loma Linda Proton Treatment Center has been in continuous operation for over 11 years and demonstrates that use of proton beam therapy can be accomplished successfully and safely for patients, facility staff, and the public at large. The NYPH would use the same, or essentially similar equipment as that used at Loma Linda.”

* Storm water drainage will be greatly improved with a double-purifying system that will be installed as part of the project.

* The original proposed site along Bryant Avenue impacts the least amount of trees of any of the other “alternative sites:” 11.

* The soil samples for the alleged contaminated sites not cleaned up and certified clean by the Department of Environment Conservation are “coming soon,” as of last Tuesday.

* The proposed Plan B facility on the initially proposed site which is the primary site being considered calls for entrance at the Bryant Avenue gate. To mitigate traffic impact, the hospital proposes two traffic lights at the Bryant Avenue gate and at the cross street farther East on Bryant at the Methodist Church. The DEIS traffic study contends these two lights will decrease wait time.

Northern sites rejected

* The sites on the North half of the hospital property have been rejected by the hospital as alternate sites because the sites are too long and narrow. According to Ms. Hildersley, the narrow property available bordering Westchester Avenue, Bloomingdale’s and the golf course cannot contain the floor plates (read floor space) that modern research facilities now require.

Large sprawls of floor are needed so disciplines can coexist in a closer environment to interact, she said. Hopscotching lab facilities on different sites when their purposes are related are counterproductive to the purpose of a research lab, she indicated by her comments to reporters.

The Draft Environmental Impact Statement was prepared by Allee King Rosen & Fleming, Incorporated of White Plains, and Dolph Rotfeld Engineering, Adler Consulting, Evans Associates, and Pasanella & Klein Stolzman & Berg Architects. The hospital Environmental Consultant was David Paget of Sive, Paget & Riesel, and Stephen Kass of Carter, Ledyard & Milburn.

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High School Principal Resigns; to Retire in June

Updated Dec. 10:Advertisements for a new high school principal appeared nationally this weekend, according to Linda Ochser, Assistant Superintendent for Human Resources Monday. The Board of Education announced Friday through its Agenda for the regular Monday meeting of the Board, that high school Principal William Colavito has submitted his resignation for purposes of retirement. (Text of Mr. Colavito’s resignation for retirement letter appears in this report.)
Dr. Ochser contacted WPCNR Monday afternoon to confirm that a search for Mr. Colavito’s successor had commenced with advertisements in this past Sunday New York Times and the most popular trade journal, Ed Week. She said colleges and professional organizations were also being made aware of the covetted opening. Dr. Ochser said she first learned Mr. Colavito was thinking of resigning Wednesday afternoon of last week.

WPCNR was unable to contact Mr. Colavito for direct comment on his retirement, but his letter reproduced in this ariticleindicates his departure is unrelated to the recently announced departure of Superintendent of Schools Saul Yanofsky.

Saturday, WPCNR obtained a letter signed by Mr. Colavito which was apparently mailed to parents of WPHS students Thursday. Parents of high school students we talked to Friday evening had not received the letter yet. Here is the text of that letter:

December 6, 2001

Dear Students and Parents,

I am writing to let you know about a personal decision that I have made. After much deliberation, I have decided to retire as principal of White Plains High School at the end of this school year.

While I am confident that this decision is the right one for me, it is one that I did not come to easily. In fact, I have very mixed emotions about it.

The years I have spent at White Plains High School have been among the most satisfying of my career. I feel privileged to have had the opportunity to work with students, staff and parents in a community that values its schools the way White Plains does.

In thirty-five years in public education, I have not seen many schools with the commitment to excellence that exists at White Plains High School. However, as wonderful as the experience has been, it has become increasingly clear to me that I cannot continue in my position without compromising other areas of my life, most especially my family.

It had long been my intention to retire at the end of this school year, when the construction project was substantially completed. The School Board’s decision not to extend Dr. Yanofsky’s contract certainly made my decision more complicated.

I clearly do not want to add to the sense of uncertainty that many members of the community have been feeling. I also realize that there can be no perfect time to leave. So, after a good deal of soul searching, I have concluded that my original decision was the right one.

Over the next few weeks the district will be advertising for my replacement, and the multi-stage process of selection will begin in late January. Dr. Yanofsky will be informing you soon about the steps and dates for this selection process.

I look forward to working with you as the rest of the school year unfolds. Thank you for your continuing support and for your understanding regarding this decision.

Sincerely,

William N. Colavito

School Board Spokesperson describes what is next.

Michelle Schoenfeld, Clerk of the District, told WPCNR Friday that Mr. Colavito’s decision did not come as a surprise, but she would not say that his intent to retire was known for “a long time.”

“He’s of an age where he is eligible to retire,” she reports.

Ms. Schoenfeld said the notice of Mr. Colavito’s announcement went home to parents of high school students Thursday, and the high school staff was told at the same time.

However, the phrase “went home” is unclear. WPCNR did not ascertain what this meant, at the time, assuming that “went home” meant that it went home with students as many notices do in the school district.

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Now it appears that the letter was mailed, not sent home with students since parents of high school students we spoke with Friday evening had not received the letter in Friday mail.

Students not advised.

From what WPCNR has been able to find out from talking to high school students Friday afternoon, (three of them), there appears to have been no public in-person announcement of this to the student body, the persons most directly affected by Mr. Colavito’s anticipated departure. Mr. Colavito’s secretary did not know of any such announcement to students.

The Clerk of the District said that Dr. Linda Ochser, Assistant Superintendent for Human Resources, would begin searching for Mr. Colavito’s successor by placing advertisements. She said usually the district does not hire an independent search firm when seeking principals. Schoenfeld added that the usual procedure is to place advertisements, and that principals are usually not appointed “from within” or promoted to the position.

Saturday, Ms. Schoenfeld contacted WPCNR to clarify her remark to me on the principal succession issue. She writes, “I’m quite sure I never said that ‘principals are not usually appointed from within or promoted
to the position.’ There are times in the past when that has happened and there would be nothing to preclude it.”

Dr. Ochser was reported to be in a meeting with the Board of Education Friday afternoon when WPCNR attempted to contact her for more detail on the principal search timetable.

William Colavito is very popular with the students of White Plains High School, and is credited with completely changing the atmosphere at the 1,763-student facility from that which existed under his predecessor. Colavito was brought in by Dr. Yanofsky to stabilize the high school environment. He (Colavito) is credited with having a fine reputation and relationship with parents and students alike across all diverse constituencies.

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WPCNR Remembers Pearl Harbor

Sixty years ago today, the Japanese attacked Pearl Harbor in a surprise raid that caught the United States Pacific Fleet at anchor on a sleepy Sunday morning.

This “Day of Infamy,” as President Franklin D. Roosevelt described it is a reminder that we should always remember the price of freedom and the reasons we have to fight for it against all odds.

As Jimmy Cagney said in the movie, Yankee Doodle Dandy, and we are paraphrasing here, “Every once in awhile some thug nation comes to think we’re pushovers and takes a poke at us. It’s up to us to show them America can’t be pushed around.”

WPCNR pauses to reflect and salute and remember the “Day of Infamy.”

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Judge Nicolai Touches Them All.

WPCNR highlights key arguments from Judge Francis A. Nicolai’s sweeping decision calling for a continuation of the White Plains Council election involving Larry Delgado and Glen Hockley to take place in District 18 among all 6 council candidates. The Administrative Judge of the New York Supreme Court ruled Thursday evening.
Judge Nicolai reasoned his right to jurisdiction, one of attorney Adam Bradley’s contentions against Mr. Delgado’s petition, was based in the condition that neither candidate had taken office:

“Once a successful candidate has assumed office, an aggrieved candidate’s exclusive remedy is in the nature of a quo warranto action by the Attorney General…

However, when an office is not yet occupied, a quo warranto action is unavailable, and a plenary action for declaratory judgment is appropriate…

Further, the court has the power to convert an election proceeding to an action for declaratory judgment…Thus, since the subject public office is not yet occupied, this proceeding is hereby converted into an action for declaratory judgment with the petition deemed the complaint…In the context of this declaratory judgment action, Petitioner’s claims may be duly adjudicated.

On the matter of Delgado not proving need for relief

Respondent Hockley further argues that Petitioner has not made a factual showing entitling him to relief. This Court disagrees. It is undisputed that the voting machine in Election District 18 malfunctioned after recording just 39 votes for Petitioner Delgado, thereby preventing the recording of any additional votes for Petitioner.The facts of this case clearly establish that had the voting machine not malfunctioned, Petitioner would have received votes in excess of 39 in Election District 18, and that the machine malfunction affected the election results. Further, Respondent Hockley has produced no probative evidence to the contrary.

Accordingly, in light of the faulty vote tally in Election District 18, and the resulting faulty city-wide wlection results, the election of Respondent Hockley can not be certified.

Judge Nicolai says “Not so Fast, Mr. Delgado.

Mr. Delgado’s attorney, Jeffrey Binder argued that based on Mr. Delgado’s showing citywide that Judge Nicolai declare Mr. Delgado the winner during the court phase of the petition. The Judge felt this outcome could not be assumed:

While Petitioner(Mr. Delgado) contends that the malfunction of the voting machine may be somehow corrected by an “appropriate mathematic adjustment” made to the election returns, and an adjustment of the canvass, this Court disagrees. This Court, cannot, as Petitioner urges, determine either as a matter of fact or law, the accurate tally of votes received by Petitioner Delgado on November 6, 2001 and declare the Petitioner is the winner. In as much as this Court cannot permit the issuance of a certificate of election to a candidate who may not have actually won due to a mechanical malfunction (Hockley), this Court also cannot presume that Petitioner is the winner of the election based upon a subjective mathematical or statistical analysis.

Judge Rules Out Citywide Election

Candidate Hockley’s attorney had argued for a remedy which called for a citywide election with all registered voters allowed to participate. Judge Nicolai declared this argument to be “without merit:”

While it is impossible to determine exactly how many votes Petitioner would have received had there not been a malfunction in the voting machine, the remedy fashioned must be reasonably calculated to demonstrate the intent of the voters of Election District 18 on November 6, 2001 to vote for a member of the Common Council. A new city-wide election, with all registered voters eligible to participate, whether they voted on November 6, 2001 or not, would not be determinative of the intent of the voters who actually voted on November 6, 2001 in Election District 18, but may not have had their votes recorded.

Further, a city-wide election is unnecessary and unduly burdensome for Responsent Board of Elections since there were no reported irregularities in the 45 other election districts.

Text in italics excerpted from the Delgado decision issued Thursday evening by Judge Francis A. Nicolai, New York Supreme Court.

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Delgado: Nicolai Decision Allows Voters Voices to Be Heard.

Larry Delgado hailed what he called an “historic” decision Thursday evening. Mr. Delgado, suddenly a candidate again, is scheduled to kick off his mini-campaign Friday afternoon at a news conference at Republican headquarters at 2:30 PM. Disenfranchised voters will speak.


THE DELGADO TEAM, shown after early proceedings. John Ciampoli is on the left, and Jeffrey Binder, on the right. The Delgado Duo successfully won a new election in District 18 Thursday evening. An appeal from Mr. Delgado’s opponent Glen Hockley may be next. The Judge has called for an election to take place in District 18 only on either December 17,18,19 or 20 for the 366 voters who voted on November 6. WPCNR PHOTO


“The Nicolai decision gives the vote back to those whose votes were not counted,” Larry Delgado told WPNCR Thursday night, “Now their voices will be heard.”

Mr. Delgado contacted WPCNR late Thursday evening from his White Plains office, and said he was “very, very pleased with the decision, and I look forward to the continuation of the election and continuing on to victory.”

The ebullient incumbent analyzed the decision: “One’s vote is the central issue here,” the Councilman said, “if a massive malfunction prevents it from being counted, that vote is too important not to be counted. The decision is a very well-reasoned decision (by Judge Francis Nicolai) that holds together, is so well-established, so clean-cut. The Judge leaves no doubt. It’s historic. A decision that will affect the nation.”

Delgado decision architect checks in.

John Ciampoli, Mr. Delgado’s major domo, spoke to WPCNR from his Albany office, pointing out that only two general elections have ever been rerun in the state, and this is the third. He said it was historic, but cautioned that an appeal could be forthcoming. However, he pointed out that for Mr. Hockley and his attorney, Adam Bradley to appeal on the basis that the voters should not have an opportunity to be counted, while asking for their vote at the same time appeared to be an awkward position.

366 Who Voted will be given opportunity to recast their ballots

Judge Nicolai’s ruling calls for the Westchester County Board of Elections to select either December 17,18,19 or 20 as the day for the continuation of the election.

He has ruled that all six council candidates have to be on the ballot, but Rita Malmud and Thomas Roach have already been certified as winners in the election by the judge.

The other parameter is the canvas: Judge Nicolai has ruled that only the 366 voters having voted at Machine 150 in District 18 on Election will be allowed to vote in the continuation of the election.

The District 18 result added to the candidates’ results in the 45 other White Plains election districts will determine the winner of the third council seat.

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FLASH! Judge Nicolai Orders Revote in District 18 between Dec. 17-20

Updated, Dec. 6, 11:35 PM:Judge Francis Nicolai, Administrative Judge of the New York Supreme Court, Ninth District issued his decision on the Larry Delgado-Glen Hockley disputed election results at approximately 6 PM Thursday evening.
WPCNR has learned from a party close to one of the candidates contesting the results in White Plains Election District 18 that Judge Francis A. Nicolai has ordered a revote in District 18 either December 17,18,19 or December 20, according to Mr. Delgado’s attorney, John Ciampoli, speaking to WPCNR from Albany this evening.

The date of the actual continuation of the election is to be decided by the Westchester County Board of Elections.
The decision was issued by fax early Thursday evening to the affected parties in the suit.

According to our source, the Judge has called for a reelection in District 18 canvassing only those voters who voted in District 18 on November 6. This comes to a total of 366 voters.

The Judge has also mandated that all six candidates: Larry Delgado, Robert Tuck, Michael Amodio, Rita Malmud, Thomas Roach, and Glen Hockley be on the ballot.

However, Judge Nicolai has already ruled that Rita Malmud and Thomas Roach are certified as winners of council seats, meaning that votes for Ms. Malmud and Mr. Roach in the reelection will not affect their “certified” reelection.

WPCNR will attempt to bring you more details as they become available, and the Judge’s written reasoning behind the decision as soon as possible.

Judge Nicolai, according to our source, mandates that the winner of the third council seat will be determined by adding the results of the December revote to the candidates’ totals in the other 45 White Plains election districts. However, Mr. advises that if Mr. Delgado should prevail, he must prevail by 8 votes, if less, then Mr. Hockley’s 7 contested votes will be added to Mr. Hockley’s total.
Our source calls the ruling, “A very good decision.”

Now Glen Hockley and his attorney, Adam Bradley have to decide whether to appeal Judge Nicolai’s ruling to the Appellate Court, Second Department, in Brooklyn.

Pending that possible appeal, the third court of last resort for Mr. Hockly and Mr. Bradley is the New York State Court of Appeals, which is where the case would terminate, according to Edward Dunphy, City of White Plains Corporation Counsel, in a statement made to WPCNR last week.

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A CHRYSALIS UNLOCKED

The Music Conservatory of Westchester was host to a successful effort on the afternoon of December 2, 2001, in which musicians from throughout Westchester County and beyond, came together to offer their music and talent for the benefit of the American Red Cross of Westchester County.

The jazz jam session was predicated on the Conservatory’s desire to return the community embrace of the Conservatory’s new home at 216 Central Avenue, in White Plains, with an outpouring that would also reflect the desire of musicians and the Conservatory to call for a musical interaction that would respond with passion and sensitivity greater than the horror of September 11.

Jazz is a touching musical interpretation for me. Jazz is often spoken of as the only American musical form. It is the only honest depiction of the American “melting pot” concept often alluded to, yet not lived up to in practice. The base ingredient of jazz is the ease with which the music tells the listener exactly what is to be played, that is, jazz. Analogous to the advertisement: “Coke is It” or “Pepsi’s the One.” Americans want it when they want it; we want it now – we are an impatient lot. We worship instant gratification. To that end, jazz exposes its musical genre immediately. Strike one point for jazz.

Jazz is a musical art that has form and structure, that is, a musical score. Classical music in all its fluidity once written is forever impervious to change. We Americans, though respectful of the musical genius of Chopin, Bach, Rachmaninoff, Sibelius and Mozart, among others, possess a demeanor more closely aligned with the individuality permitted in jazz. Score another point for jazz.

Jazz exalts extemporaneous concepts of musical sound. It is an art form of sound that finds strength from the emotional center of each musician through his or her personal effort and musicianship. It is not musical form that follows a protocol of consensus. It is individual, yet not alone. Jazz permits the development of the group effort and the inherent strengths of the give and take, the ying and yang modality of sound. Score point three for jazz.

The musical effort is not a consensus but rather an individual expression within the context of a group effort in which each contribution of musical self enhances the group effort in its expression to the listener. Do I hear score number four for jazz? Surely, a resounding “Yes!”

Jazz has drawn cultural musical themes from Africa, Europe, The Middle East, and The Orient and mixed the ingredients of each into a “stew” to create the sound and expression of “jazz” to the delight and satisfaction of the American mentality and auditory sensibility. This “stew” ingratiates new cultures and influences into its jazz form. Witness the emergence of the Asian artist flocking to the jazz fold. The ever increasing people of all colors, religions and ethnicity to the world of jazz. Score point five for jazz.

I could go on and on. Yet, let me not forget that unlocking the jazz musical chrysalis yesterday afternoon / evening were Bob Arthurs, Glenda Davenport, Gerry Fitzgerald, Aaron Flagg, Masai Hayashi, Jimmy Hill, Charlie Lagond, Steve Lamattina, Michelle LeBlanc, Jan Leder, Kenny Lee, Carmen Leggio, Mark Morganelli, Johnny Morris, Takeshi Ogura, Diana O’Keefe, Joe Ragusa, Steve Roane, Sean Smith, and Kenny Wessel.

For more information, please contact Robert Arthurs, Dean of Students and Faculty and Lisa Deutsch, Executive Director of the Conservatory at (914) 761-3900. E-mail Robert Arthurs at Robert Arthurs, Dean of Students and Faculty ; e-mail Lisa Deutsch at Lisa Deutsch, Executive Director of Conservatory and please visit the Music Conservatory of Westchester web site and visit their new home at 216 Central Avenue, White Plains, NY 10606.

For those who missed the event yet would like to donate to the efforts of the American Red Cross in Westchester, please contact Katherine Cintron, Director of Philanthropy at (914) 946-6500 ext 502 or via e-mail to Katherine Cintron, Director of Philanthropy of American Red Cross in Westchester

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Briefs IN! Judge Nicolai Reviews the Arguments. Board Awaits. Tallies In.

Updated, Dec. 5:The Principal Law Clerk for Judge Francis Nicolai, Administrative Judge of the New York State Supreme Court, confirmed to WPCNR as of 3 PM Tuesday, that the Judge had received briefs from the attorneys for Larry Delgado and Glen Hockley in Mr. Delgado’s election action. He is in the process of reviewing them. Meanwhile, the Board of Elections awaited instructions, and up-to-the-minute still unofficial results are now available from the Board of Elections.

Correction, Updated December 5. An alert WPCNR reader has drawn our attention to computation error, which shows a surprising turnaround for Mr. Delgado, if District 18 results between he and Mr. Hockley were not counted.

Diane Lundin reported to WPCNR from the County Court House Tuesday afternoon that Adam Bradley, attorney for Glen S. Hockley, and Jeffrey Binder, attorney for Councilman Larry Delgado had submitted final briefs by 5 PM Monday as directed. Ms. Lundin said the Judge was in the process of reviewing them and she “had no knowledge as to what his (the Judge’s) plans were.”

New Election?Board of Elections needs 2 to 3 weeks to get ready.

Meanwhile, back at the Board of Elections, Carolee Sunderland, Co-Commissioner of the Board of Elections advised WPCNR that should Judge Nicolai call for a new election, it would take the Board approximately 3 weeks to set up voting machines. She said the Commissioners, in cooperation with the White Plains City Clerk might consolidate voting districts, and, as part of the any ordered process, prepare the new election roles required.

She speculated that this might extend the period between the ordering of any remedy and a new election. Another factor she said was whether or not the judge would set aside extra time for the candidates to campaign again prior to any new election date.

In Tarrytown, interval was 45 days.

Larry Delgado, interviewed on the subject after Monday evening Common Council meeting, pointed out that in the Tarrytown case where a new election was called for, the judge reviewing that case set aside a time period of 45 days. Going on that precedent, this would put a new election sometime into early February. But, that is speculation only, based on Westchester’s most recent re-canvas scenario.

Sunderland said most White Plains election districts run over 400 voters and there would most likely be little room for consolidating election districts (that is directing voters to new, more centralized polling places they are not familiar with). Sunderland advised that the Board of Elections is given authority to consolidate districts of 2,000 voters and above, while city clerk offices county wide are given the jurisdiction to consolidate districts of not less than 100 up to 400 voters. General, Special and Primary election law spells out the consolidation guidelines as to who makes the consolidation decisions.

Four Inspectors Have to Be Put in Place for every Polling Place.

The Commissioner advised that for every polling place opened, four Election Inspectors would have to be hired by law, another consideration, especially if Judge Nicolai should order a citywide recanvas.

Question of who will be allowed to vote is the Judge’s call.

Sunderland indicated that another consideration is it what voters Judge Nicolai determines have the right to vote in any reelection should he call for a new runoff.

Sunderland added he might decide only voters who voted November 6 were eligible to vote. Another scenario is any new election might only be held in District 18, instead of citywide. Sunderland said the complexity and the time needed to set up a Delgado-Hockley runoff depended solely on what Judge Nicolai orders as “the remedy.”

Other possibilities are the Judge might let the original vote stand, or declare Mr. Delgado the outright winner based on facts presented.

Latest Unofficial Board of Elections Results as of November 30

WPCNR received the unofficial Board of Election results Friday afternoon from Steve Levy, Deputy Commissioner of Elections. According to the printouts, the totals as of Friday afternoon, November 30 are as follows:

Glen Hockley
46 Election Districts Reporting, All Absentee Ballots counted:

Democratic
5,517
Independence
310
Working Families Party
313
Total Votes
6,140

Larry Delgado
Republican
5,591
Conservative
502
Total Votes
6,093

The difference: Glen Hockley leads by 47 votes.

What the suit is about: Mr. Delgado contends that due to the voting machine counter wheel (found to be jammed last week), in District 18, at least 100 votes (enough to give him the election), were not counted in his favor, based on his run in 1997 in District 18.

Mr. Delgado received 57 (Republican 47, Conservative, 10) votes in District 18, compared to his Republican running mates Robert Tuck and Mike Amodio who respectively gathered 157 and 126 votes on the Republican line, and 13 and 9, respectively on the Conservative line.

Corrected portion of article begins:

A New Election or A Declaration of Outright Win is Delgado’s Hope.Delgado is Second to Malmud, if District 18 is eliminated.

Examining the results it is clear that throwing out the results of District 18 as being flawed would make Mr. Delgado the winner.

The present standing of Mr. Hockley over Mr. Delgado would change if District 18 results were thrown out. If you deduct the 155 votes he received in District 18, Mr. Hockley would possess 5,985 votes compared to Mr. Delgado’s 6,038 (going into District 18), after deducting Delgado’s 55 votes he got in District 18, Delgado would lead Hockley 6,038 to 5,985, and be clearly the winner.

Under this scenario of eliminating District 18, Thomas Roach fall to third behind Mr. Delgado by a mere 10 votes with 6,028 votes (determined by deducting Roach’s 230 District 18 votes from his present total of 6,258).

Please note, an alert reader noted that WPCNR had plugged in the wrong figure for Mr. Delgado in the first edition of this article in computing the District 18 “throw-out” scenario. Recomputation produced the result demonstrating Mr. Delgado is the winner and second to Rita Malmud if District 18 results are thrown out.

This result based on the unofficial totals, made available to WPCNR last Friday, indicates why Alan D. Scheinkman, Ms. Malmud and Mr. Roach’s attorney, was so intent on having the Malmud and Roach results certified last week.

Judge Francis Nicolai is now mulling the two candidates’ entwined fate.

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Cappelli Express Highballed. Council Approves Final TowerDesigns

The Common Council in PicturesThe Common Council approved Frederick Bland’s Beyer Blinder Belle final detailed architectural designs of the Cappelli City Center Towers Monday evening, ending a seven-month drama.

The Council also moved ahead on Fortunoff’s and New York Presbyterian Hospital’s Plan B.

Monday marked Pauline Oliva’s final Common Council meeting, and the introduction of Gina Cuneo as the new Commissioner of Finance.

The Mayor also invited everyone to White Plains first New Year’s Eve Party on, of course, December 31.


PAULINE OLIVA’S LAST COUNCIL MEETING: Mayor Joseph Delfino, calling her “more than a rose, you’re a crown jewel,” presents Councilwoman Pauline Oliva with a dozen long-stemmed roses, in recognition of this being her last Council meeting after eight years of service to the city. Ms. Oliva received a standing ovation at the end of the evening from her colleagues and the citizenry in attendance. Rita Malmud, City Council President, visibly emotionally moved, told Ms. Oliva, “You’ve been that which we aspire to be.” In her remarks, Ms. Oliva thanked all the commissioners for their professionalism over her eight years. WPCNR PHOTO.


NEW COMMISSIONER OF FINANCE IINTRODUCED: Mayor Delfino listens to his new Commissioner of Finance, Gina Cuneo, express her happiness at joining the City of White Plains as new finance wrangler. Ms. Cuneo was most recently the Chief Financial Officer of the Village and Town of Ossining, and prior to that spent many years with the City of Yonkers in a financial role. Austin Davis, formerly in finance with the New York Power Authority joins her as new Deputy Commissioner of Finance.WPCNR PHOTO.


TOWERS OF CAPPELLI ARE ACCEPTED. The new revised Frederick Bland designs of Louis Cappelli’s residential towers were introduced and approved by the Common Council with no opposition whatsoever. The primary difference is that windows have been added to the narrow north-south faces of the structures (a suggestion of Councilman Willidam King) The slant-turret, “Nautilus-style” conning tower affect has been retained at the top. The materials choices were also approved.WPCNR PHOTO.


A SOFTER PROFILE ON THE TOWERS is achieved with windowed facades on the new designs for the North South views was presented by Louis Cappelli and approved Monday evening. Cappelli is now cleared to begin construction on the project. The City Center movie-retail complex is seen to the left, the garage to the right. The view is from Martine Avenue, looking North.WPCNR PHOTO.


A LITTLE BIT OF SOHO COMES TO WHITE PLAINS:Cappelli also introduced design for the loft residential building of 10 stories, (on Martine Avenue), featuring 20- 2,000 square foot units with 12-foot ceilings. The loft building on the South side of Martine Avenue is conceived with a limestone green exterior, complete with ornate seals on the cornices, reminiscent of the ironbound district buildings in SOHO, New York City. William King was particularly taken by this design. All six councilpersons praised the final designs of the towers and the loft building. Benjamin Boykin, Jr., called each tower a “signature” building. Pauline Oliva said “I’m flabbergasted. I think the buildings have turned out so beautiful. Mr. Bland has outdone himself. They are stylish, they look very rich. Thank you for being receptive to our concerns.”She complimented Mr. Cappelli on his “selling” of the project, and his cooperation in listening to the Council.WPCNR PHOTO.


THE COLORS OF CAPPELLI: Louis Cappelli presented these material swatches depicting the colors of the City Center apartments. The crowns of the two towers would be white with perforated metal baffalings. The first setbacks of the towers with the horizontal windows would be of beige and light red brick. The central double-vertical window towers would be in white limestone. The garage facade of red brick (bottom), to blend in with the Martine Avenue residences across the street.WPCNR PHOTO.

In other action last evening, the Common Council approved increasing the Downtown Business Improvement District budget $200,000 to $500,000.

In a consent agenda item, they accepted the New York Presbyterian Hospital Draft Environmental Impact Statement as complete, scheduling a public hearing on it for January 7, 2002.

Fortunoff’s moves

The council approved Fortunoff’s for a Special Permit, authorizing Fortunoff’s to build to a height of 80 feet. William King reported that a Saturday meeting between Fortunoff representatives and Hale Avenue homeowners went well. He said the greater landscaping and larger buffer were positive steps.

It appears from statements by the neighbors at the meeting that they have no objection to Fortunoff’s coming, and hoped the city would involve itself to assure more concessions on Fortunoff’s behalf. However, opposition by the neighbors was definitely scaled down, in this reporter’s analysis.

Over $637,131 in grants were received for the year by the White Plains Youth Bureau. Pauline Oliva complimented Frank Williams, Youth Bureau Director on his ability to write persuasively and effectively in obtaining the grants for the city youth, in announcing three new grants.

Party with the Mayor on New Years Eve: Gala at the City’s Center

The Mayor announced the city would throw its first-ever New Year’s Eve gala bash. It will feature raising a tent on Main Street, a swing band, a buffet dinner, beer, wine and champagne. The Tickets: $75 a person, from 9 PM to 1 AM New Years Eve. Reservations are required. Call the BID,328-5166, for more information, and to make your reservation to party with the Mayor.

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