Delgado vs. Sunderland Makes Legal History

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DRIVETIME EDITION, Filed 2/14/02, 3:00 PM EST: Adam Bradley and Jeffrey Binder, John Ciampoli, are presenting their arguments before the 7-judge Court of Appeals in Albany Thursday afternoon. It is the final act of the 2002 disputed White Plains election for Common Council between Glen Hockley and Larry Delgado. Mr. Delgado expects a decision early next week.
The action is taking place at the historic Court of Appeals building in Albany at 2 PM before the seven appointed justices of the Court of Appeals: Chief Judge Judith S. Kaye, and Associate Justices, Honorable George Bundy Smith, Honorable Howard A. Levine, Honorable Carmen B. Ciparick, Honorable Richard C. Wesley, Honorable Albert M. Rosenblatt, and Honorable Victoria A. Graffeo.


COURT OF APPEALS HALL, ALBANY: New York State’s highest court is the end of the line for the Delgado-Hockley disputed election. Arguments took place Thursday afternoon in a courtroom that strikes awe and admiration into New York State Lawyers. John Ciampoli, Larry Delgado’s attorney, tells us it is “his favorite courtroom,” and he speaks of the oaken paneled walls, the portraits of justices of the past hanging on its walls. Edward Dunphy, White Plains Corporation Council, is most impressed by a fireplace in the court room, tall enough, “that you can walk into it.” For a New York attorney, arguing at the Court of Appeals is like a ballplayer playing in Yankee Stadium. The exterior front capitals and bases are copies of those of the Temple of Nike Apteros on the Acropolis.

Photo from the Court of Appeals website


Dunphy recalls what it is like arguing before the Court of Appeals

WPCNR interviewed Edward Dunphy, city Corporation Counsel, last Friday, on what it is like for an attorney to argue in the state’s highest court:

< “What happens at the Court of Appeals, there are seven members and the attorneys will argue the case. After the case, what happens is the clerk has already prepared an index card for each case that’s argued that day. The cards are face down when they (the justices) come off the bench and each judge picks up the card, and that’s how the case gets assigned to the judge who’s going to report on it. Then they conference it the next day and make a decision.”



CITY CORPORATION COUNSEL, EDWARD DUNPHY, a man who’s been there, shared his thoughts on arguing before the state’s top court in his past.
Photo by WPCNR


Next, they wait: Dunphy said that being that it was an election matter a decision could come by the weekend, “being that it was an election matter.”

Dunphy said, arguing before the Court of Appeals is an experience: The court of Appeals is very ornate, wood-panelled, old courtroom that is still in style. It’s a majestic courtroom where lawyers like to go to argue, because you have a sense of being in a place where hard decisions are made, and strong legal decisions are made. Strong legal precedents have always come out of the Court of Appeals.”

Dunphy “Not surprised” Court agreed to hear the case. Delgado-Hockley has statewide impact.

WPCNR asked Dunphy if he was surprised the Court of Appeals agreed to hear the Delgado/Hockley matter. He said, “Not at all, because the case, in my opinion, has statewide application, not just for the city of White Plains but for the entire state of New York.

“One of the questions the court has to answer is whether you can do equity like Judge Nicolai did, and the appellate division sustained in an election matter or whether you just have to follow the dictates in the election law as laid out in the books. That’s one of the questions. One of the subsidiary questions the court has to answer, as Mr. Bradley has been saying, is whether the proper procedures have been followed, and thirdly, whether the remedy provided by Judge Nicolai, and modified by the Appellate Division is the correct remedy.”

Inside the chamber:

Dunphy said that the Judge selecting the Delgado-Hockley “Case Card” will report on the case: “He will have to report on the case and the judges will vote. And then they will structure the writings accordingly whether it’s a dissent or not. He makes a report and they all vote on it.”

“They could do a lot of things here. They could reverse it and go with Nicolai. Or they could affirm the Appellate Division, or make their own findings of law. They could say…the election as on November 5 are the results and there should be no other remedy.”

Delgado confident “going in.”

Larry Delgado, appearing at the Council of Neighborhood Associations, said he was “so glad that one way or another, this will be decided.” He said he felt confident, but that you could not tell how the Court of Appeals was going to go. Mr. Delgado and his wife were going up to Albany Thursday morning for the “final arguments.”

Delgado attorney points out Court of Appeals threw out two procedural protests in 2001

John Ciampoli, one of the Delgado attorneys, interviewed by WPCNR last weekend, said the two cases involving election law that the Court of Appeals agreed to hear last year ironically involved procedural matters similar to the arguments in the Delgado-Hockley matter. He said the Court of Appeals upheld lower court decisions overruling procedural requirements in favor of voter franchise.




DELGADO’S ATTORNEY: JOHN CIAMPOLI cites a Court of Appeals trend in recent years to uphold the right to vote over strict adherance to procedures.
Photo by WPCNR


Time stamp case, remarkable parallel.

In one case, Ciampoli said, there was a certificate that had to be filed to put someone on a ballot. A clerk at the Board of Elections in Nassau County did not put a time stamp on a document, and there was a movement to prevent the candidate from going on the ballot because the certificate was not time-stamped. The Court of Appeals ruled “we’re not going to keep someone off of a ballot and deny the voters a choice because someone forgot to put a time stamp on it.”

“And so, if you take that being analogus to this case (the failure to purchase a new index number,” Ciampoli said, “ the worst you can say is, the county clerk forgot to keep a copy of the whole thing and only kept a copy of one page before releasing it to the judge, because it was given to Mr. Delgado to walk to the judge.

In order for Bradley’s argument to have any merit, he is going to have to show a signed order from Judge Perrone or Judge Colabella saying ‘this case (the impoundment order) is closed.’He (Bradley) hasn’t shown me that, he hasn’t shown the courts that. So he loses. What he did manage to do is convince one appellate division judge that his letter that said no further proceedings was necessary concluded the case. When did we give Adam Bradley a black robe with the power to close the case?”

Make-up of Court not in question, according to Delgado attorney

Asked if the political affiliation of the court might make a difference (4 Governor Cuomo appointees, 3 Governor Pataki appointees), Ciampoli said, no.

“I can tell you this much about the Court of Appeals,” Ciampoli said, “I have been before them time and time again, and I haven’t always walked away happy. But I definitely have never walked away from the Court of Appeals without believing that they heard my arguments, gave me a fair hearing and that they understood what was before them, and did what they thought was right.

I know the judges, I’ve been before them for years, and I don’t think a party label makes any difference in the world to them. This is a good bench. Several of the judges have a lot of experience on election law before they got to the bench…I’m comfortable with these guys.”



JUDGES OF THE PAST LOOK DOWN ON HISTORY IN THE MAKING: Lining the courtroom where Adam Bradley and John Ciampoli are arguing their case today are portraits of former Chief Judges and Associate Judges of the Court of Appeals. Pictured here, top, are Benjamin N. Cardozo, the only Chief Judge of the New York Court of Appeals to be nominated to the Supreme Court of the United States, and below, Ward Hunt, the first judge of the Court of Appeals who served from 1873 to 1882. Judge Cardozo was nominated to the Supreme Court in 1932.
Photos from the Court of Appeals Website


As arguments are heard this afternoon, the justices of the past who stare in dignity from the walls of the courtroom will be looking down on a case that will be cited for centuries to come in New York Election Law. You cannot help wandering how they would rule this case.

Mr. Delgado ruefully acknowledged last night that “Delgado vs. Sunderland” will be the part of many an election lawyers’ briefs in the future.

The case will decide whether or not procedure will determine the outcome of an election. Whether disenfranchised voters still need to be heard if a procedural step is missed. Whether a voting machine can be ordered opened as a matter of election law. A host of matters will be adjudicated by the today’s Justices for elections of tomorrow across the state.

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WHITE PLAINS HIGH SCHOOL STUDENTS PLACE HIGH IN SCIENCE RESEARCH

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From Michelle Schoenfeld of the City School District: White Plains High School students in the Authentic Science Research
Program competed at the Westchester-Rockland Junior Science and Humanities Symposium Competition at the IBM Research Center in Somers last Saturday, and three earned places in the State competition in April.

Representing the school will be: Kirsten Abraham, who presented her research on “The Psychological Comparison of Stress Levels and Dream Intensity in Adolescent Subjects;” Lara Indrasena, with “The Effect of Salt on the Oviposition and Development of Aedes Japonicus and Aedes Triseriatus;” and Andrew Silverman, with his paper on “Factoring Degree Sequences.”

This represents the fourth consecutive year that students will
compete at the State level.

Timothy Selg advises the students and teaches the ASR Program.

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Retirements Drop Budget Increase to 8.1%.Yanofsky Case for Middle School $$$

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Milkman’s Matinee News, Filed 2/13/02, 2:30 AM EST: The second meeting of the White Plains Annual Budget Committee Tuesday evening revealed the Superintendent’s Cabinet has cut $911,979 out of the proposed School Budget in a week thanks to retirements and BOCES cuts. A case was made for accelerating remedial efforts in the Middle School.
The year to year proposed 2002-03 increase stands at a plus 8.1%, down from 8.8% last week. The Superintendent of Schools made a case for a strong Middle School effort to address underachievement on the assessment tests before they reach high school.


ABC IN ACTION: Dr. Saul Yanofsky, Superintendent of Schools, passionately uses revealing overheads and realities of test scores to make the case for more money to bring Middle School’s underachievers up to speed by high school.
Photo by WPCNR


Good news first.

According to Richard Lasselle, Assistant Superintendent for Business, the fifteen teacher retirements and reduced fringe benefits announced Monday evening lower projected salary outlays by $526,000.

He said BOCES cuts from retaining children within the district next year by instituting the “Passages” program in the elementary schools will save another $231,000, lowering the overall tentative budget-in-process to $128,272,248.


LASSELLE DELIVERS THE GOOD NEWS: Richard Lasselle, Assistant Superintendent for Business making figures crystal clear to the Annual Budget Committee meeting Tuesday night.
Photo by WPCNR

Yanofsky: Increase Middle School Staff to Upgrade Bottom 7%

The 30-member Annual Budget Committee watched soberly as the Superintendent detailed the costs of addressing the new state standards at the middle school level.

Yanofsky said that $845,000 was being allocated to address the consistently lower scoring students in the sixth and seventh grades.

The money is being targeted as follows: To provide 1 new ELA teacher($70,000), 1 new math teacher ($70,000), 3 Special Support Teachers ($210,000) and 2 and ½ Remedial Teachers at the K through 5 levels ($175,000) at the Middle School level to bring up the achievement levels of what he called the “bottom 7%” who are consistently scoring low on the eighth grade assessments.

A total of $129,000 is being earmarked for new textbooks, and $128,000 for Summer School remedial programs. The $845,000 represents 0.73% of the new budget increase.

Another $205,000 is being assigned to hire 3 technical support teachers and to facilitate teachers’ ability to understand and work with students needing help in learning computers in the schools. This represent another 0.7% increase in the budget.

“You see where the money is,” Yanofsky said as he presented the case for the Middle School remediation effort. “The next big challenge is in what it costs to respond to new state mandates.”

Three years of 4th and 8th grade test score comparisons drive strong Middle School Effort.

The Superintendent put up “overheads” of the Achievement Test Scores that figure in the district assigning priority to more academic aid in the Middle School. Though test scores have improved steadily in three years at the White Plains elementary level based on the 4th grade Math and English Language Arts assessments, performance faltered in the Middle School 8th grade achievement tests, Yanofsky’s figures showed.

In the elementary school 4th grade Math tests, which are graded on a 1,2,3,4 basis the last three years, (above “3” is acceptable), the five White Plains elementary schools Math Tests had 74% passing the Acceptable levels(above 3) in 2001, up from 69% in 2000, and 71% in 1999.

In 2001, 26% scored below acceptable, 31% unacceptable in 2000, and 29% in 1999. However, in all three years of the fourth grades tests the level of students scoring at the 1 level pegged consistently at 7% (8% at 1 in 1999, 6% at 1 in 2000, and 7% at the 1 level in 2001.

Looking at the 4th grade English Language Arts Tests, a similar pattern develops: In 2001, 66% scored 3 or better; Up fropm 63% in 2000, and 53% in 1999. The percentage of students in White Plains 4th grades not scoring 3 or better, were 34%, 37% and 47% respectively.

”You can predict test scores by the prices of cars in the parking lot.”

Yanofsky said, “With a heavy dose of remediation, (of incoming students), we have made a tremendous difference. Lower and middle class kids come into the district with issues, and the challenge to help them catch up is staggering. We caanot make up for the time from 2, 3, and 4 years old when we (the school district) didn’t have them.”

Yanofsky said it was not ethnicity that prevented the children from keeping pace, but poverty. “You see the same results in West Virginia which is predominately white. Performance (by income levels) is replicated place after place throughout the nation. One prominent critic of tests said you can predict test scores by the prices of cars in the parking lot (of the school).”

83% of students qualifying for “Free or Reduced Lunch” are English Language Learners.

The combination of poverty combined with a non-English speaking background is a problem the district is moving to address across the grades, and particularly the Middle School.

The only measurement of income levels that the district has, Yanofsky said, is the qualifying standard for free or reduced lunch. Based on the numbers of students qualifying for free or reduced lunch, the district has determined that the following percentages of ethnic groups are on low or moderate incomes: Asian, 19%; Black,65%;Hispanic,79%; White, 9%. A total of 83% of the all those qualifying for free or reduced lunch are English Language Learners, and 35% are English-speaking.

Yanofsky said, “We need to keep talking about this, (the poverty-non-English-speaking population).”

Middle School 8th Grade Tests a Concern.

The 8th grade assessment tests in the same areas have lead the district to concentrate on the lower performing students in Middle School.

In three years of Middle School Assessments in Math and English Language Arts, the progress seen in the elementary tests has not been as steady. In Spring, 2001, 48% scored at passing levels (above 3) in 2001, with 52% below 3, (below level), and of those scoring below passing, 20% performed at the “1” level. In 2000 the figures were at 53% below 3, 47% performing acceptably, and 22% performing at the “1” level. The first year of the achievements, 1999, the levels were 59% below passing,41% above, and 27% at the “1” level.

Yanofsky related the disappointing math scores to poor reading skills, because the eighth grade math assessment demands the ability to read and comprehend problems, as well as computation skills.

A drop in 8th Grade ELA results.

In the 8th grade ELA tests, remediation results showed strong improvements in 2000. However, in 2001, 49% scored above the Acceptable Level (in the 3,4 range), with 51% scoring below, and 7% at the “1” level. This was down from the year before, with 56% in the 3,4 categories and 44% in the “below standard” 1,2 levels with 9% at the “1” level in 2000. In the benchmark year of 1999, 55% scored at acceptable levels (above 3), with 45% below the state standard.

Remedial strategies at High School bring students back.

Yanofsky put it to the audience bluntly, “We know that in White Plains, the Middle School curriculum needs a tremendous amount of help. But, we know the results from high school jump way up, from the 50% level to the 80’s and 90’s. What we have to do is focus on quality of instruction at middle school.”

Yanofsky said that the high school efforts at remediation had been responsible for bring student performance up, and indicated this experience would now be applied in the Middle School. The new personnel requested is an effort to implement this approach, “We seem to be more successful in remediation programs in the high school. We have reason to believe the level of success will continue.”

The superintendent said, “Retention (in Middle School) is not a good solution. Moving up is not a good idea. A self-contained program for students, using a ½ time person (working with the student) is what we suggest.”

He said the Middle School is working on a model of this remedial program.

Yanofsky presents data refuting that bright students’ ability to achieve is compromised.

Two realtors among the Budget Committee expressed concern that potential residents were leary of coming to White Plains because they felt their children who they felt were good students would not be challenged.

The Superintendent took strong issue with that statement, saying, “We have the data to refute that.”
Yanofsky said that in the last three years, the district has awarded 38%, 44% and 45% regents diplomas at the high school, getting the district ready for the time within the next 2 to 3 years when students have to pass 5 Regents examinations to graduate.

He said it was unfair for the media, most notably “Spotlight” magazine to present “aggregate test scores” to rank districts. He also said the County Board of School Superintendents was adapting a policy not to provide data to media insisting on ranking school districts.

White Plains SAT scores for top 20% of students compare with all communities in the county.

A Yanofsky overhead showed that for the top 10% of White Plains students, they averaged 713 on the Verbal and 727 on the Math. The Top 20%, 675 and 693, respectively. These figures, Yanofsky said “compete with all communities in the county.”

The performance of White Plains students on Advanced Placement Tests is outstanding, Yanofsky, said, saying that 69 to 75% of the 240 students taking advanced placement tests succeeded in qualifying for advanced placement in 3 or more subjects. Yanofsky said there is “absolutely no evidence” that the brightest students are held back in performance in White Plains.

Transportation Increase Due to White Plains Bus Company no longer able to afford to serve White Plains.

Richard Lasselle shed light on the transportation increase calculated at about 28% was due to the White Plains Bus Company saying it could not afford to keep its new contract at the Consumer Price Index level, as had their previous contracts been structured. Lasselle said the City School District contract had for a long time been $5,000 to $7,000 less per bus than neighboring districts, and that White Plains Bus had refused to renew their contract.

Debt Service to be retired by 2014.

Lasselle presented an overhead noting that the School District debt was now at $33 million, including the $28 million debt for the high school expansion. It requires $2.5MM in principle and 1.8MM in interest payments in 2002-03. He said they were non-callable bonds, and that the district had looked at restructuring their debt four years ago, and found “no advantage to it.”

City calculates tax assessments to be the same as last year.

The final piece of news delivered by Mr. Lasselle was that the City of White Plains is reported to have told the district that assessments are at the same level as last year. Lasselle added that at the next Annual Budget Committee meeting, he and Dr. Yanofsky said they would be “taking a look” at how the PILOTS of new city projects would affect the budget in the next few years.

Dr. Yanofsky, on cue, rose to ask the committee members to deliver their thoughts on what the community could accept in terms of a tax increase.

Yanofsky showed an overhead of tax chart indicating that at the present level of 8.1%, a tax rate adjustment of 10.20% could be expected. If the budget was lowered to 7.5%, the tax rate would drop to 9.59%, and if cuts were made to 7% this would reduce the Tax Rate to 8.9%. He asked the Committee members for their opinions on whether the public could live with a 10.8% tax rate. Two realtors in the audience could not comment on exactly what that would mean in terms of actual dollars to the average home owner.

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Ochser, Architect of Faculty, Renews Contract.

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11 O’Clock All News Final, Filed 2/11/02 11:30 PM EST Updated 2/12/02 11:20 PM: The Board of Education voted to renew Assistant Superintendent for Human Resources, Dr. Linda Ochser, for three years through September, 2005, Monday evening, retaining the architect of the School District faculty review system during the Saul Yanofsky years.

Dr. Linda Ochser was praised by Dr. Saul Yanofsky Monday evening at the regular February meeting of the Board of Education, as the Board renewed her contract. Yanofsky said she was the senior member of the Superintendent’s Cabinet having served since 1989.

The outgoing Superintendent said that, in her dozen years at the faculty helm, Dr. Ochser had designed the system of committees, involving “stakeholders” of parents, teachers, labor, community and school-based groups that deal with personnel and policy issues in the schools, “bringing definite perspectives.” The Superintendent credited Ochser for having createdd “most thorough processes” for reviewing teachers for tenure, and unique evaluation forms and procedures for that review.



FACULTY “GENERAL MANAGER” INKED FOR ANOTHER THREE YEARS: Dr. Linda Ochser, Assistant Superintendent for Human Resources will be with the City School District for another three years. She is shown in the front row Monday night at Education House, as Dr. Yanofsky announced her retention. Dr. Ochser’s familiarity with District personnel stabilizes the district as it faces “a changing of the guard” in faculty ranks and at the top. On Monday, fifteen teachers representing 500 years of experience were announced as retiring. Dr. Joseph Casbarro, Assistant Superintendent for Pupil Services is also pictured.
Photo by WPCNR


While the retention of Dr. Ochser was good news, the Board accepted the retirement of Dr. Barbara Gruen, Director of Guidance Services for the District effective next October 2, 2002, and the resignation of Karen Kettlewell, Food Service Director effective March 1.

Gruen praised as “Total Guidance Professional.

Dr. Barbara Gruen, Director of Guidance Services until next October, was lauded for her fifteen years as head of the guidance program, which has seen the number of counselors districtwide go from 12 to 18 counselors.

Yanofsky praised her for the “painstaking” way she selectes counselors, her knowledge of colleges, and her ability to work with students and their families, “appropriately and sensitively, linking kids to resources within the community.” He said Dr. Gruen was “a leader within her profession.”


DIRECTOR OF GUIDANCE SERVICES,Dr. Barbara Gruen, listens to Dr. Yanofsky and Dr. Casbarro recognize her contributions to the school district. Gruen will stay in her position through Oct.1, 2002.
Photo by WPCNR

Dr. Joseph Casbarro, Assistant Superintent for Pupil Services, said Ms. Gruen had three charactertistics which distinguished her “body of work,” her compassion, her advocacy, and her professionalism. He said that in the twenty years he’d known her, “she exemplified what it means to be a professional.”

Food Service Director leaves for Directorship of National Food Service Organization

Dr. Yanofsky said Ms. Kettlewell had turned around the District Food Service program since 1993, the year she joined the District. Yanofsky said she turned a program that was running a deficit of $150,000 a year, to a program that now has a $725,000 surplus (built up from 1997).

“Karen has proved you can feed children good food and make money largely by marketing food services to agencies, community groups, camps and nursery schools in the community.”

Richard Lasselle, speaking Tuesday evening, clarified his statement of Monday night, saying $425,000 of this surplus was going to be used to pay for costs of the new food service facility at White Plains High School including kitchen equipment and cafeteria tables.

The Rochelle Group, Ltd., of Congers, New York has been hired to manage the Food Service operation, taking over for Ms. Kettlewell on March 1. The group found Ms. Kettlewell for the district nine years ago, and will conduct a search for viable candidates for the position, Dr. Yanofsky said.

The group will supply an interim director who will intern a week with Ms. Kettlewell before taking over her duties when she leaves. Rochelle Group will be hired at a cost not to exceed $9,100 a month through June 30 of this year. Part of this cost will be paid for by the funds allotted for Ms. Kettlewell’s salary. (The Rochelle Group has a website on White Plains Links. Simply Click on White Plains Links and go to “Schools” to get to their site.)

Superintendent Yanofsky said Ms. Kettlewell tightened up management and had designed a system that will continue in White Plains for “years to come.” He said she also was leaving “a wonderful legacy,” in deigning the new food service facility at the White Plains High School. Dorothy Schere, Board Member, recalled when Ms. Kettewell was hired, “I honestly couldn’t believe she could make money (with the food service).”

District resolves to lobby Albany to repeal Wicks Law.

Richard Lasselle, Assistant Superintendent for Business, explained a resolution the Board of Education passed advocating Albany lawmakers allow School Districts across the state to be able to choose one contractor for construction projects over $50,000.

Currently, the law on the books dating back to 1912, requires districts outside New York City to hire four different contractors: a general contractor, a heating a ventilating system contractor, electrical contractor, and a plumbing contractor.

School superintendents across the state have determined that this arrangement doubles the time it takes to complete major school projects and adds to the expense of the project. The superintendents urge citizens to write Albany by March 1 suggesting repeal of the Wicks Law.

Lasselle said there are often disputes among contractors that prolong the jobs. It happened in White Plains in 2001, when the district lost 17 working days due to wildcat work stoppages.

The two-page resolution asks Albany lawmakers to repeal the Wicks Law, allowing a one-contractor job. Lasselle expressed optimism that this year Albany lawmakers seem receptive to some change.

Fifteen Teachers retire

In a news item that shows the fortunate advantage of the Board of Education retaining Dr. Ochser, the Board of Education announced the retirement of the fifteen teachers. Yanofsky noted these men and women represented 500 years of teaching experience within the district:

Brenda Davis, School Social Worker, George Washington School; Robert DePrato, Foreign Language Teacher, High School; Susan Hirsch, Elementary Education Teacher, Church Street School; Michael Levine, Math, High School; Henry Miller, Physical Education Teacher, Mamaroneck Avenue School; Jeffrey Miller, Physical Education Teacher, MS-Highlands and High School; Beth Post, Learning Facilitator, Post Road School; Patricia Rita-Woodman, Elementary Education Teacher;Nancy Rodriguez, ESOL Teacher, High School; Regina Setikas, Special Education Teacher, MS-Highlands; Thomas Stevens, Elementary Education Teacher, MS-Highlands; Carolyn Tokson, Learning Facilitator, High School; and Steven Toovell, Art Teacher, Mamaroneck Avenue School.

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Free Agent Deadline:Little League Late Registration CLOSES Feb 23.

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From White Plains Little League: Children 5 to 15 wanting to play Little League Baseball must return their personal applications (which you should have received by now), to the Little League, postmarked no later than February 23 in order to play this Spring. Children not knowing whether they will make a middle school team or not, should sign up. Money will be refunded if you choose not to play.

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White Plains News Links Continue to be Added Daily

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White Plains New Links: Aficianados of White Plains CitizeNetReporter should be advised that WPCNR is adding “News Links” daily. By clickingon White Plains Links in the upper left column of this page, you will be taken to our roster of websites that can provide more information for you on the stories we cover. Today for example, we have added WestchesterARC. Last week we added a number of companies involved in negotiations with Louis Cappelli. Use the White Plains Links!

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Bradley: Decision with Statewide Implications Looms at Court of Appeals.

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6 O’clock Lightning Edition, Filed 2/8/02, UPDATED 10:15 AM EST Saturday: New York’s highest court, the Court of Appeals granted the Glen Hockley Motion for Leave to Appeal the Appellate Court-ordered citywide election Friday. The court agreed to hear oral arguments on Mr. Hockley’s case on Thursday, February 14 at the Court of Appeals, 20 Eagle Street in Albany. Attorneys Adam Bradley, representing Mr. Hockley and Jeffrey Binder and John Ciampoli, representing Larry Delgado will present arguments at 2 PM. The case was originally scheduled for Wednesday, but was moved back on the Calendar at the request of Mr. Delgado’s attorneys who are arguing a case in Manhattan Tuesday.

Hockley gets the good news from WPCNR

Glen Hockley first learned of the court decision Friday morning in the Galleria Parking garage when WPCNR broke the story to him. Mr. Hockley’s first reaction: “I’m very pleased, just very pleased, we’ll just see where it goes at this point.”


GLEN HOCKLEY GETS THE GOOD NEWS: Candidate Glen Hockley, the “Councilman in Waiting” receiving the news from the Court of Appeals that they are going to hear his case. WPCNR personally broke the news to Mr. Hockley Friday morning.
Photo by WPCNR


Asked if he had made any plans for any subsequent campaign, (he has sent out fund-raising letters to Democratic District Leaders), Hockley said, “Well, if we have a campaign, we may not have one. I’m certainly ready for a campaign. I think our campaign will be victorious that’s what I feel.”

WPCNR asked Hockley if he felt the Court of Appeals decision was a vindication of Adam Bradley’s legal strategy, Hockley said,

“I think what we’ve been doing is terrific. He’s been a tremendous attorney, and excellent.”

Asked if there was any time Bradley had lost heart at all during the process, Hockley said of his attorney, “ Not at all…not at all.”

WPCNR asked Hockley if Mr. Bradley was confident all the way.

Hockley didn’t hesitate, saying “Absolutely, he’s the best. He’s the best election law attorney that I have heard about, that I know about.”

Bradley calls it a case with statewide impact.

Interviewed in his offices at 140 Grand Street in White Plains Friday afternoon, Adam Bradley, Hockley’s attorney was passionate in his belief in the importance to the state of the Hockley appeal:

“I’m obviously pleased that they recognized there were very important legal issues being raised, that they were certainly worthy of the highest court of the state of New York making determinations as to what the rule of law in the state of New York is.”


ADAM BRADLEY SEES HISTORIC RAMIFICATIONS: Glen Hockley’s attorney, Adam Bradley, in his offices on Grand Street in White Plains, discussed why he appealed the Appellate Court decision.
Photo by WPCNR


We asked Bradley about whether he had argued before the Court of Appeals before: “I’ve been before them on oral argument on leave applications. I’ve not argued before them on the issues themselves before a full panel.”

Bradley described the Court of Appeals experience: “It was nice. I enjoy arguing before the Appellate Division and I’m sure I’m going to enjoy arguing before the Court of Appeals. It will be a challenge. They’re obviously experienced jurists. That’s why they are there.”

Not just a little White Plains Case.

WPCNR asked about the significance of the Hockley appeal, Bradley responded,

“What I’m most pleased about is that there is a recognition by the highest court in the state of New York that we’re dealing with very important legal issues that deal with the rule of law that transcend election law cases, that deal with all cases.

That there needs to be something said by the highest court, and that’s fine. Whatever they decide is going to be what the law of the state is, and that’s a good thing.”

We asked why, when the Appellate Court ruled for a citywide election, (that Mr. Bradley had argued for in his first appeal,) did he take the appeal higher to the Court of Appeals.

Bradley said it was a matter of principle: “Because obviously, I was pleased that the Appellate Court recognized that if there is to be any remedy here it should be a citywide election. That is something I felt was very important. Something I argued, as you know before the trial judge.

The reason why there’s an appeal is because, this case as I’ve indicated, has tremendous ramifications well beyond election law in this state. It has ramifications that deal with the civil procedure rules in the State of New York on all legal cases filed in this state.”

A look beyond the election result.

Bradley feels the appeal has statewide significance: “I think it’s very important the Court of Appeals set the precedent, make a determination of whatever the rule of law is going to be in this state. Certainly in the past, the many errors that were made in this case have been determined to be fatal errors in many other cases, and in cases where there were certainly very equitable claims that were dismissed for very similar reasons as to the issues that are occurring here.”

Bradley rests his case: “I have no problem if the Court of Appeals wants to change the precedent that has been set in these types of cases, that instead of a standard that requires strict conformity, they want to create a standard that allows for some equitable considerations. I am following the precedents that have been set.

And certainly knowing that many cases in the state of New York have been dismissed for the exact same reasons that there are problems in this case, leads me to believe that the Court of Appeals (by agreeing to hear the Hockley case), recognizes that they need to make a determination as to what that standard should be for all lawyers and all litigants practicing in the State of New York.

The issues clearly are not trivial, what’s clear is, nobody can suggest that the issues being raised are in any way trivial….the highest court of the State of New York the equivalent of the Supreme Court on federal issues in Washington, has determined these are issues warrant their insight and input on determining what the law in this state is going to be. That in and of itself, is important.

This is not a case that is just some minor little issues in the City of White Plains. I’m very pleased that that that’s what’s going to occur here.”

Westchester 1982 case threw out far more “numbers anomalies” than one district.

WPCNR asked when do you look at an unusual result in an election district and examine a machine under election law? Bradley said that there had be more argument for a voting machine examination than simply that you think the result is too low. He uses a case in Westchester in 1982 involving, ironically a candidate named Bradley:

“The Bradley case was a countywide election” Bradley recalled for us, “candidate lost by 45 votes, countywide. There were anomalies in districts throughout the county as there always is. Candidate comes in, says, ‘Hey, I need to know what’s going on here I’m only down 45 votes countywide.’ Substantially closer than this case. (The candidate said) ‘I can point to not one district, but 30 districts where there’s clearly unusual numbers anomalies that don’t look right.’ The court said that’s not enough. Case dismissed.”

Larry Delgado trailed by 47 votes after the canvas was completed on Election night, and claims to have lost at least 100 votes as a result of the jammed voting machine.

Bradley advised WPCNR that Delgado’s attorney John Ciampoli has “misconstrued” his brief dealing with a motion for a declaratory judgment when Ciampoli said Bradley was claiming they were denied a jury trial at the trial court level.

Jeffrey Binder, Larry Delgado’s attorney, said he and John Ciampoli, Delgado’s other election law specialist were “ready,” for the oral argument.

For information on the Court of Appeals, its judges, and directions to Albany, CLICK ON WPCNR’s “White Plains Links” and go to “Courts in the News.”

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Cappelli’s Choice: Gets 90 Days to Make a Deal. McMansions Passed!

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Milkman’s Matinee News, Updated with Pictures, 2/8/02, 8:30 AM: The Common Council voted unanimously to give Louis Cappelli “90 Days To Deal” for a hotel or a major retailer Thursday night. The developer has his choice of both deals to pursue.

The Council also completed the historic land-use rezoning of the city, passing the “anti-McMansions” Zoning Ordinance.The issue of nonconforming homes in the outer neighborhoods will be further studied by the Planning Department.

Perils of Cappelli

Louis Cappelli, put in his third appearance at the Common Council in 4 days, Thursday evening, with a sobering update on the condition of the financial markets.

The volatility of the financial climate has prompted him to request a precedent-setting council approval of letting him choose his best configuration for the City Center. The council resolution made official a deal hammered out last Friday before the Urban Renewal Agency and constructed by Edward Dunphy, Corporation Council, Monday.


SUPER DEVELOPER GETS 90 DAYS TO WOO SEARS, WOW THE RITZ. Louis Cappelli showcases thumbnails of two ways he could take the City Center: 5 Floors or 4 Floors to the Common Council Thursday evening.
Photo by WPCNR


The resolution allows Mr. Cappelli 90 days to negotiate either a major retail tenant for the second floor of the city center, (Sears Indoor Store or a shadowy new retailer). If Mr. Cappelli cannot make Sears happen, he can eliminate the second floor retail footage in favor of a potential hotel deal.

Should a hotel deal fall into place, one floor (175,000 square feet of retail) would be eliminated from the City Center, and the enticing Ritz-Carlton Hotel worked into the Martine Avenue side of the Center.

In this scenario, Mr. Cappelli would come back to the Council with the hotel design for approval. Mr. Cappelli already has a preliminary design of how the Ritz Carlton might look, but he feels it is premature to have it photographed.

The City Center Lineup Today

Mr. Cappelli appeared tentative, concerned, highly respectful to the Council, but undaunted as he made his plea to the council to give him 90 days to shape the City Center configuration.

The Super Developer started off with an update, confirming again that he has the Target Store, Circuit City, and National Amusements signed to lease agreements.

He reports Legal Seafood will be inked to a lease Friday. He is in lease negotiations with Barnes & Noble and final lease negotiations with California Pizza Kitchen, Stir Crazy, and Bertucci’s, an Italian restaurant, “so all the restaurants (on the first floor street level) will be filled out.”

Cappelli is also confirming, “We’re talking to Bally’s and Equinox health clubs.” Asked where they would go in the project, Cappelli said it all depends what happens on “the spec floor.”

A two-week closing begins Monday

Cappelli, showcased the 1-inch thick “Closing Checklist,” assuring the Common Council that his three financing partners, CIBC, ULLICO and a third bank were in place to deliver the $150 million in financing. Cappelli has already spent $40 million of his own money, and continues to bankroll the pace of construction at the rate of $1 million a week, he said. Steel has been ordered and will arrive on May 25.


THE HANDS OF CAPPELLI hover over a 1-inch thick sheaf of “Closing Checklist Papers” last night.
Photo by WPCNR


Cappelli said his bank consortium would not approve the financing on the project if it had two speculative floors. The “man who makes things happen” said the banks needed the Council approval that the project would go ahead with either 5 floors or 4, prompting his creative request for an “either/or” approval from the Council.

Council partners with Cappelli – and he wants it all—Sears and Hotel.

William King enthusiastically nodded his assent to the 90 day negotiating window. Rita Malmud kept all in suspense before saying she would vote for the 90 days to give Mr. Cappelli “flexibility” to close his best deal.


CAPPELLI MAKES HIS PLAY, awaits the Common Council verdict last night. Clockwise, from top, Cappelli, Councilperson Rita Malmud, Councilman Roach, Mayor Delfino, Councilman Robert Greer, and Councilman William King. The Council broke new ground to give Cappelli carte blanche to make his best deal and satisfy his banking syndicate.
Photo by WPCNR

Greer provokes an intriguing answer

Robert Greer, asked an interesting question – what would happen if Cappelli was able to sign both the Sears Indoor Store and the Ritz-Carlton. Cappelli said he would then be using “the air rights” over the city parking garage which he purchased. This comment indicates that he is trying for the best of both worlds: the complete retail and a hotel.

Councilman Tom Roach said he was willing to consider the reduction of one floor a minor site plan amendment. Mr. Greer said, “I have no problem with it.”

McMansions Gets Done: A Habel Achievement.

Susan Habel, Commissioner of Planning who presided over the city rezoning the last three years, reported that the McMansions zoning ordinance addressing overbuilding in the outer neighborhoods was now completed as a result of the Council vote Thursday evening, commenting,

“I’ m pleased they passed it. It’s something the Council’s been looking at for approximately a year. A concern was raised by one resident (in the meeting) with respect to rebuilding on a non-conforming property, and that is not an issue directly related to these amendments it relates to another section of the zoning ordinance which the Mayor and Council have asked us to examine, and we will be examining it.”

Time for an FAR Check.

Habel said the final zoning ordinance passed yesterday evening,

“addresses the changes that were recommended in the City Comprehensive Plan. We have now completed with the exception of some changes that will be coming on the environmental recommendations, we have completed the land use recommendations of the comprehensive plan for zoning changes.”

As of 6:45 PM Thursday evening, Habel, relaxing in her office, reported with a satisfied grin that “the FARs are now in effect, yes, and coverage, changes in coverage creating a main building coverage and the side yard changes are now in effect as a result of the council’s action tonight.”

Mayor hails completion of the land-use rezoning. Says Cappelli has “heart in this project.”

Mayor Delfino, the last to leave City Hall, said, “The zoning ordinance we passed tonight is a very very important issue as it releates toprotecting the integrity of our neighborhoods. I’d have to say the Planning Department probably went to about 14 neighborhoods to redo these planning revisions and it was well-received. There’s always a small house here and there that faces and issue, but if we have to we’ll resolve them individually, but in turn this will be a great great difference for the city of White Plains. It will really protect the integrity of the neighborhoods.”

Asked to comment on the “perils of Cappelli,” the Mayor said, “I think as Mr. Cappelli said, things are changing every day. Fortunately, he has his heart on this project being completed, and I’m glad the council went along with his proposal tonight.”

Dunphy calls “Cappelli’s Choice” a precedent.

As we walked out of City Hall after the historic deliberations, WPCNR encountered Edward Dunphy and his legal entourage.

We asked the Corporation Counsel, crafter of the 90-Days to Deal measure, if the council acceptance of the elimination of one floor as a minor site plan amendment and the 90 Days to Deal measure was a precedent.

Without hesitation, Dunphy, walking swiftly West down Main Street away from City Hall, grinned and said, “It’s a precedent. We’re breaking new ground here. But, we’ll persevere. We always do.”

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Bucks for Buses, More Staff, Benefits Drive 8.8% Hike, $129MM Budget

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Milkman’s Matinee News Filed 2/7/02 2:15 AM EST UPDATED 1:30 PM EST:The Annual Budget Committee learned Wednesday night the School District is looking at an 8.8% increase in the 2002-2003 school budget, pending anticipated trimming by the citizens committee.

The 02-03 projected budget is now sitting on $129,184,227 up $10,597,541 from the 2001-2002 expenditures of $118,686,686.

Salaries make up 60% ($78MM) of the new $129MM “Cabinet Budget.” Salaries for proposed new staff and scheduled step increases for present staff, make up $5.8MM, of the $10.6MM year-to-year increase.

Transportation (buses) is seen increasing at least $1.454MM or 13% of the increase. Benefits, pegged to increase $3.18MM, constitute 30%.

Yanofsky identifies the vulnerabilities

Situations driving the budget are the negotiation of a whopping new bus transportation contract yet to be determined. There is a sharp increase in fringe benefits, and need for sustained upgrading of curriculum and specialized staff. Staff growth is necessary to upgrade state assessment test performances and enable students to pass new Regents requirements for graduation at the high school, Yanofsky said.


YANOFSKY WRAPS IT UP FOR THE ANNUAL BUDGET COMMITTEE WEDNESDAY NIGHT as the Board of Education, in background watches him introduce a budget to the community for the final time. Yanofsky was optimistic more cuts could trim the projected increase. He said “Response to the state mandates has been extremely costly for us,” and that “There’s not an adequate safety net for kids who turned out to be in the middle of this.” (the institution of Regents exams).
Photo by WPCNR

Yanofsky and Lasselle make their case

Dr. Saul Yanofsky, Superintendent of Schools and Richard Lasselle, Assistant Superintendent for Business, took turns unveiling the new preliminary budget to the 30-member Annual Budget Committee of White Plains residents. The distinguished gallery is drawn from the PTA, Rotary, League of Women Voters, city organizations and concerned citizens.


LIKE SUMMERALL AND MADDEN, Richard Lasselle teamed with Dr. Yanofsky to present a $129MM school budget for 2002-03. Lasselle listens to a question from a Board of Education member.
Photo by WPCNR


The lucid two hour and 10 minute presentation, identified the money pressures dictating the increase which is 1.9% more than the 7.9% increase overwhelmingly approved by voters last year by a 4 to 1 margin.

ABC given a challenge

The Superintendent expressed hope that the committee would give the District ideas on where they could cut the budget to bring the budget down to last year’s level of increase. Yanofsky urged Committee members to give feedback on what areas they wanted more information and understanding on before next Tuesday, and to bring questions to the next session of the ABC on Tuesday evening, February 12 at 7:30 PM.

Increased staff to raise performance makes up half the increase.

Yanofsky said that before the ABC convened, there had already been three go-rounds by the Superintendent’s Cabinet of Assistant Superintendents on December 5, January 7 and January 9. The superintendent and the Board and the school leaders were able to bring down the budget increase from an original 11.3% hike, down to the 8.8% level. They eliminated 17.85 new Certified teaching positions and 10 new Classified positions to bring the budget down $812,155 as of Wednesday evening. Now it was the ABC’s turn to guide them where to prune and shape the budget next.

Enrollment swells at high school.

The new budget is designed to deal with natural enrollment increases at White Plains High School as the school population bulge, now in the Middle School, works its way into the high school. Because part of that population came in before the new state regents standards were instituted, the school district is having to provide increased special services to bring that population up to standard to pass the Regents examinations in Math, Science, English, American and World History required by the State Education Department for a high school diploma in “2 to 3 years.”

Addressing the Regents Challenge for Students Not Ready for Regents Time

Yanofsky said the district fears many high school students may not pass the Regents the first time they take them, raising the spectre of the student population swelling with fifth year high school students staying in school to get their Regents diploma. The new budget now adds 5 new high school teachers in Science, and a combination of Social Studies, Reading,ESOL/Psychologist, Special Education and Foreign Language to work with at-risk students to them Regents-ready.

The Middle School at Highlands is scheduled to add a third eighth grade team by adding 1 new ELA teacher and 2 Special Support Teachers and a parttime psychologist to upgrade skills in eighth grade students whom teachers identify as not ready for high school level work. Eastview will receive a new ESOL teacher and 2 new teachers in the ELA/Science/Social Studies fields to bring down the average of Eastview classes to the 24-25 student level.

Staffing increased to cut Special Education out-of-district costs;
address achievement skills in grades K to 8

In the elementary schools, the District plans to institute a “Passages” program to keep special education students within the district, saving on BOCES tuition. Hiring one teacher and an aid to conduct the Passages Program across the elementary schools is less expensive than paying BOCES $45,000 per student to educate special education students out of district. Three Instructional Specialists and one occupational therapist are scheduled to be hired to serve in all the Kindergarten to 8th grade schools to provide special services to students needing to strengthen skills to reach appropriate grade level.

In Civil Service Employee Union positions, the District proposes adding full-time security aides at the two middle schools and three teaching assistants for technology support in the elementary schools and three new custodians.

A total of 34.4 new positions are projected in the new budget at a cost of $2,231,817.

It will be the Annual Budget Committee’s unenviable task to pick and choose which newly proposed positions should be kept and which cut as the budget process moves forward. A budget including no staff increases was also submitted. When you keep staff levels as they are now, (adding no staff at all), the 2002-03 budget still increases 7.0% to $126,952,410. This is because the budget is taking hits in other places.

Cost of bus transportation out of control

The cost of Transportation is projected to rise $1,453,899 to $6,592,890, up 28%. This increase is unavoidable because White Plains Bus Company informed the district they could no longer serve the district under their present contracts. The district has put out Requests for Proposals to a number of bus companies and has been shocked by the numbers coming back. Dr. Yanofsky said he would provide more detail on this at next Tuesday’s meeting.

Fringe benefits Rise Sharply.

Dr. Yanofsky, in his patient lucid, “what can we do style,” told the sober audience Fringe Benefits which are the second largest slice of the budget pie were projected to go up $3MM or 17.6% due to increased health care premiums (“It’s killing us,” Yanofsky said).

Another factor driving up the benefits bill is the lowered return on state pension funds. Yanofsky said the state is now billing the district 4% of $45 million, an extra $1.8 Million to pay the cost of district pensions.

Lasselle explains new state pension payments to WPCNR.

WPCNR interviewed Richard Lasselle Thursday afternoon to clarify the matter of the new pension payments required by the state. Mr. Lasselle told us that in recent years, though the School District is required to fund pensions based on the salaries of teachers and district employees, the District did not have to contribute to the state.

Lasselle said in the investment markets of the late 90s, the state was able to sustain its portfolio return on investment so well that it did not require school districts to replenish the pension fund.

Now, Lasselle says the weak investment market has forced New York State to require replenishment from the School District.

“This year is different than that,” Lasselle said. “ Because of the budget shortfall, the state is passing on the costs to organizations. A new expenditure we had not had to budget before.”

Lasselle amplified Yanofsky’s statement on the pension payment of Wednesday night. Lasselle reported the district is obligated to make a payment to the state of 1-1/2%, approximately $705,000 to the Teachers Retirement System, based on the $47 million in White Plains teacher salaries. There is also a 4% payment of $800,000 to the Employees Retirement System, based on the $20 million in White Plains district employee salaries, creating an increase in benefits costs of $1,505,000, about $300,000 less than what was said last night.

Hope for a cut to the 7.6% Level

Wrapping up the evening, Dr. Yanofsky offered encouragement to the Committee, reporting that at the first Budget Committee meeting last year, the budget was looking at a 9.1% increase and it wound up being eased down to 7.9%. He noted at at 8.8% now, the increase is just about where it was last year, and if the same process were to happen it would put the finished budget at 7.6% “which might be where we want to be.”

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Hockley Claiming He Was Denied a Jury Trial in His Appeal

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Drivetime News Caravan, Filed 2/6/02 3 3:00 PM EST:The Glen Hockley appeal raises a new issue as a basis for appeal. Today the Hockley matter of the ongoing District 18 Machine Jam Case awaits a Court of Appeals evaluation as to whether New York’s highest court will review his case. The brief states they were denied a jury trial at the Trial Court level where Judge Francis Nicolai ruled for a continued election in District 18, in addition to raising the familiar procedural matters as basis for denying a new election.
Another new wrinkle that Hockley’s brief raises in his appeal cites one of John Ciampoli’s former cases as evidence that the Delgado camp should have filed a new index number before filing their second step in obtaining an examination of the voting machine in District 18. (John Ciampoli is Larry Delgado’s specialist in election law).

Ciampoli explained to WPCNR that the Hockley brief simply lifted part of his former case to show that the Delgado camp should have filed for a new index number. Ciampoli said this was taking a case out of context, because this case involved absentee ballots and was not as time-sensitive as the events on Election Night, 2001 in White Plains.

If you recall, results did not look right after District 18 totals came into Republican Headquarters, and the Delgado camp filed for impoundment of the voting machines suspecting an election machine had jammed on the Delgado line. Attempts to get the court to examine the machine were contested by the Hockley camp, as not being allowed under election law.

When Judge Nicolai refused to deny an examination of the machine, and ordered it, the machine was found to have a jammed Delgado counterwheel. On the basis of “having identified a wrong, the court is forced to manufacture a remedy,” Judge Nicolai ordered a continuation of the election in District 18. The Hockley camp sought a stay from the Appellate Court in Brooklyn to stop this election from taking place.

The Appellate Court refused Mr. Hockley’s appeal by a 3-1 decision. On Thursday of last week, January 31, Mr. Hockley appealed to the Court of Appeals. This is where the case stands today.

Ciampoli said Wednesday regarding his response brief to Court of Appeals on the Hockley matter, that “We replied at this point, and nothing else is in play.”

Ciampoli also said that the jury trial denial piece to the appeal was strange, because according to the practice of law you cannot use an issue as a basis for appeal, if you did not ask for that relief at a lower court level. Mr. Ciampoli says at no time did Mr. Bradley ask for a jury trial in Judge Nicolai’s court.

Two Week Wait Possible.

Asked how fast the Court of Appeals might move on deciding to take up the case, Ciampoli thought two weeks at the latest before the Court of Appeals would make the review-no review decision.

Thursday, February 7 was the date when Judge Nicolai, Administrative Judge of the New York State Supreme Court, Ninth District, had set to bring the parties back to set an election date. Unless the Court of Appeals rejects the case today, the parties will not reconvene.

Ciampoli said the Hockley brief prepared by Bradley recites his previous arguments on procedural issues. Ciampoli reviewed the events in question on Election Night: “He (Adam Bradley) managed to convince one (Court of Appeals) Judge that the case had technially concluded after the machine impoundment proceeding (requiring a new index number). But, he cannot produce anything (document) from Judge Perrone (the Judge ordering the impoundment) that says the (impoundment) case was concluded. I do not see how you can end the impoundment until you get results of the recanvas (to check for reporting errors). All he (Bradley) has is his letter to Binder about a court appearance.”

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