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FILED: MONROE COUNTY CLERK 11/10/2020 03:01 PM INDEX NO. E2018007330
NYSCEF DOC. NO. 507 RECEIVED NYSCEF: 11/10/2020
MONROE COUNTY CLERK’S OFFICE THIS IS NOT A BILL. THIS IS YOUR RECEIPT.
Receipt # 2543555
Book Page CIVIL
Return To: No. Pages: 171
MINDY LEE ZOGHLIN
300 State Street, Suite 502 Instrument: E HIBIT(S)
Rochester, NY 14614
Control #: 202011101208
Index #: E2018007330
Date: 11/10/2020
Brighton Grassroots, LLC Time: 3:06:02 PM
DANIELE MANAGEMENT, LLC
Town of Brighton Planning Board
TOWN OF BRIGHTON TOWN BOARD
Town of Brighton
M&F, LLC
Total Fees Paid: $0.00
Employee:
State of New York
MONROE COUNTY CLERK’S OFFICE
WARNING – THIS SHEET CONSTITUTES THE CLERKS
ENDORSEMENT, REQUIRED BY SECTION 317-a(5) &
SECTION 319 OF THE REAL PROPERTY LAW OF THE
STATE OF NEW YORK. DO NOT DETACH OR REMOVE.
JAMIE ROMEO
MONROE COUNTY CLERK
202011101208 Index #
INDEX : E2018007330
NO. E2018007330
FILED: MONROE COUNTY CLERK 11/10/2020 03:01 PM
NYSCEF DOC. NO. 507 RECEIVED NYSCEF: 11/10/2020
EXHIBIT
202011101208 IndexNO.
INDEX #: E2018007330
E2018007330
FILED: MONROE COUNTY CLERK 11/10/2020 03:01 PM
NYSCEF DOC. NO. 507 RECEIVED NYSCEF: 11/10/2020
ECF No. 264-289
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E2018007330
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NYSCEF DOC. NO. 264
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MONROE COUNTY CLERK’S OFFICE THIS IS NOT A BILL. THIS IS YOUR RECEIPT.
Receipt # 2225802
Book Page CIVIL
Return To: No. Pages: 19
MINDY LEE ZOGHLIN
300 State Street, Suite 502 Instrument: MISCELLANEOUS DOCUMENT
Rochester, NY 14614
Control #: 201909301372
Index #: E2018007330
Date: 09/30/2019
Brighton Grassroots, LLC Time: 3:58:16 PM
DANIELE MANAGEMENT, LLC
Town of Brighton Planning Board
TOWN OF BRIGHTON TOWN BOARD
Town of Brighton
M&F, LLC
Total Fees Paid: $0.00
Employee:
State of New York
MONROE COUNTY CLERK’S OFFICE
WARNING – THIS SHEET CONSTITUTES THE CLERKS
ENDORSEMENT, REQUIRED BY SECTION 317-a(5) &
SECTION 319 OF THE REAL PROPERTY LAW OF THE
STATE OF NEW YORK. DO NOT DETACH OR REMOVE.
ADAM J BELLO
MONROE COUNTY CLERK
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STATEOFNEWYORK
SUPREMECOURT MONROECOUNTY
BRIGHTON GRASSROOTS, LLC,
Petitioner/
vs. Plaintiff,
TOWN OF BRIGHTON PLANNING BOARD, Index No.:
TOWN OF BRIGHTON TOWN BOARD, E2018007330
TOWN OF BRIGHTON, BGR2
M&F,LLC;DANIELESPC,LLC Hon.JohnJ.Ark
MUCCA MUCCA LLC; MARDANTH
ENTERPRISES, INC.; DANIELE
MANAGEMENT, LLC; COLLECTIVELY
DOING BUSINESS AS DANIELE FAMILY
COMPANIES, ROCHESTER GAS AND
ELECTRIC CORPORATION, NMS ALLENS
CREEK, INC, THE FIRST BAPTIST CHURCH
OF ROCHESTER; ATLANTIC HOTEL GROUP,
INC.; 2717 MONROE AVENUE, LLC; MAMASAN'S
MONROE, LLC; 2799 MONROE AVENUE, LLC;
QING KAI SUN; 2815 MONROE RETAIL LLC;
2835 MONROE HOLDINGS LLC; 2875 MONROE
CLOVER, LLC; MONROE OFFICE SUITES, LCC;
CLOVERPARK LIMITED PARTNERSHIP; NEW YORK STATE
DEPARTMENT OF TRANSPORTATION;
JOHN DOES 1- 20; AND ABC CORPORATIONS 1-20,
Respondents/
Defendants.
ATTORNEY AFFIRMATION IN SUPPORT OF BGR'S MOTION AND IN OPPOSITION TO
RESPONDENTS' CROSS- MOTION FOR LEAVE TO CONDUCT DISCOVERY
MINDY L. ZOGHLIN, an attorney admitted to practice in the State of New York, affirms
under the penalty of perjury, and pursuant to CPLR §2106:
1. Iam the Principal Attorney at The Zoghlin Group, PLLC, attorneys for
"Plaintiff," "Brighton Grassroots/' or
Petitioner/Plaintiff Brighton Grassroots, LLC ("Petitioner,"
1
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BGR"). As such, 1am fully and personally familiar with the facts and circumstances related to
this action.
2. Imake this Affirmation inopposition to respondents' cross-motion for leave to
conduct discovery.
3. This Affirmation is based upon my personal knowledge unless otherwise stated.
The Related Lawsuits
4. The motion relates to discovery efforts in several related lawsuits commenced by
three different parties, allof whom challenge the Town of Brighton's municipal decisions with
respect to the Whole Foods Plaza "Project").
Project (the
5. Clover/Allens Creek Neighborhood Association, tnc. ("CAC") commenced a
combined Article 78 and declaratoryjudgment action on February 16, 2018 (Index No.
E2018000937) ("CAC l").
6. BGR commenced its first special proceeding challenging the Town of Brighton
Town Board's SEQRA Findings and Incentive Zoning Approvals on April 27, 2018 (Index No.
E2018002961) ("BGR l").
7. Save Monroe Avenue, Inc. ("SMA") commenced its first special proceeding
challenging the Town of Brighton Town Board's SEQRA Findings and Incentive Zoning Approvals
on April 26, 2018 (Index No. E2018002894) ("SMA l").
8. On June 18, 2018 respondents moved to dismiss some, but not all, of the claims
asserts in BGR1 and SMA 1. BGR and SMA cross-moved for leave to conduct discovery.
9. Meanwhile, BGR commenced its second special proceeding challenging the Town
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of Brighton Planning Board Board's SEQRA Findings on September 13, 2018 (Index No.
E2018007330, ECF Docs. 1- 9) ("BGR 2") and then commenced its third special proceeding
challenging the Town of Brighton Planning Board Site Plan approvals on October 16, 2018
(Index No. E2018008343, ECF Docs. 1 - 17) ("BGR 3"). BGR 2 and BGR 3 were consolidated into
BGR 2. SMA did the same. E2018007331) ("SMA 2") and Index No. E2018008349 ("SMA 3").
Respondents Delayed Filing the Administrative Return and Answers for Almost a Year
10. Respondents' motion to dismiss in BGR 1 and SMA 1 stayed responsive pleadings
in those cases pursuant to CPLR 3211(f). However, it did not stay responsive pleadings in BGR
2,BGR3,SMA2orSMA3.
11. On November 27, 2018 the parties to the BGR and SMA lawsuits entered into a
Stipulated Scheduling Order in which respondents' time to file and serve administrative records
and answers for BGR 1, BGR 2, BGR 3, SMA 1, SMA 2, and SMA3 were stayed for an indefinite
period oftime pending issuance ofthe Court's decisions on the pending motions to dismiss in
BGR1and SMA 1. BGR 2, Index No. 2018007330,ECF Doc. No.40; BGR 3, Index No.
E2018008343, ECF Doc. 48.
12. On February 7,2019 Justice Doyle granted respondents' motions and denied
BGR's cross-motions in BGR 1 and SMA I.1 Under CPLR 3211(f), respondents' time to serve
responsive pleadings would have expired on February 17, 2019. Respondents asked petitioners
to consent to additional time to file the Administrative Return and answers. We did.
1 BGR appealed this decision. Oral argument is scheduled for October 23, 2019.
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13. On March 22, 2019 the parties entered into a Stipulated Scheduling Order in
which respondents' time to file and serve administrative records in BGR 1-3 and SMA 1-3 was
stayed to April 5, 2019 and their time to file answers, objections in point of law and dispositive
motions was stayed to May 24, 2019. Petitioners were to file opposition papers by July 8, 2019,
replies were due July 8, 2019 and oral argument was set for July 17, 2019. BGR 2, Index No.
E2018007330, ECF Doc No.245; BGR 3, Index No. E2018008343, ECF Doc. 69.
14. On April 5, 2019 the Town filed the Notice of Hard Copy Exhibit filing for the
Administrative Return and mailed it topetitioners. Upon preliminary review ofthe
Administrative Return, BGR concluded that it was incomplete and asked the Town to
supplement omitted documents. The Town supplemented the Administrative Return on June
3,2019.
15. On May 20, 2019 the parties entered into a First Amended Scheduling Order in
which respondents' time to file answers, objections in point of law and dispositive motions in
BGR 2 and SMA 2 was stayed to June 14, 2019. Petitioners were to file opposition papers by
July 15, 2019, replies were due August 9, 2019 and oral argument was set for August 20, 2019.
BGR 2, Index No. E2018007330, ECF Doc No. 258. The pleadings were timely served pursuant
tothisstipulated order.
16. At respondents' request, respondents' time to answer the petitions in BGR 1
and SMA 1 was delayed from February 17, 2019 to June 14, 2019 and their time to answer the
petition in BGR 2-3 and SMA 2-3 was delayed from the Fall of 2018 to June 14, 2019.
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Respondents Obstructed Petitioners' Efforts to Obtain Discovery and
Delayed Commencement of Discovery By Negotiating in Bad Faith
17. On June 28, 2019, the Appellate Division issued a decision in CAC 1.
18. On July 17 and 19, 2019, CAC served deposition notices and discovery demands
to respondents related to their public trust claims.
19. By letter dated July 23, 2019 1 asked respondents to consent to BGR's
participation in CAC's deposition and discovery requests because CAC's demands only sought
material and relevant discovery and 1 saw no need to serve redundant demands. See BGR 2,
Index No. E2018007330, Doc. No. 157.
20. The Town rejected my request that day by email. See BGR 2, Index No.
E2018007330, Doc. No.158.
21. Given no alternative, BGR made a motion to lift the stay imposed by CPLR 3214
and proceed with discovery on July 29, 2019. In this motion, BGR seeks to serve deposition
notices and discovery demands that are identical to those served by CAC in CAC 1. See BGR 2,
Index No. E2018007330, Doc. No. 153-159.
22. Counsel for respondents, BGR, CAC and SMA appeared before the Court for a
pretrial conference on August 6, 2019 for the purpose of discussing possible settlement of the
discovery issues. At that time, the Court set a return date of September 9, 2019 for BGR and
SMA's motions to compel discovery.
23. On August 9, 2019 (a copy of which is attached hereto as Exhibit A), the
"draft" open
developer's attorney circulated a letter to the Court and counsel that outlined
discovery issues. The draft letter:
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a. Proposed all non-dispositive motions be filed by August 23, 2019,
b. Proposed a briefing schedule that would allow the non-dispositive motions to be
heard on August 9,2019, and
c. Called for all documents to be produced no later than September 30, 2019 and all
depositions to be completed by October 18, 2019.
24. The Developer's August 9th letter also indicated that he intended to make a
motion to lift stay to permit discovery against petitioners on the issues of standing and
attorneys' fees, and proposed to seek documents and take the deposition testimony of BGR
members Howard Jacobson, Peter Mulberry, and Norman Whittemore regarding those issues. 1
considered this statement to be an idle threat because, as counsel well knows, the issue of
attorneys' fees on the Open Meetings Law claims is done by affidavit, not live testimony2.
Moreover, petitioners have clearly pled individual and organization standing, and respondents
never challenged itin BGR 1, or raised any issue with respect to it inBGR2 until they were faced
with having to submit to discovery themselves. Finally, there is no legitimate basis for
respondents to seek discovery related to payment of attorneys' fees in this litigation.
25. BGR, SMA and CAC collectively responded to the developer's August 9, 2019
letter on August 12, 2019 (a copy of the e-mail chain is attached hereto as Exhibit B). We:
a. Pointed out that it was inconsistent for the developer to oppose petitioners' lift-stay
motion and at the same time suggest that it intended to seek discovery,
b. Asked respondents to withdraw their summary judgment motions without prejudice
2 See, e.g.,
Roth & Roth, LLP and Charles Dempsey v. City ofRochester et al, E2019001998 (Monroe Co. 2019).
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and proceed with discovery in the normal course, which would include service of
discovery demands, meet-and-confer to resolve any disputes, and, as a last report,
motion practice,
c. Proposed that SMA and BGR's motion to compel the Town to supplement the record
be done on submitted papers, and
d. Suggested a more realistic discovery schedule.
26. By emails dated August 13, 2019 (copies of which are attached hereto as Exhibit
C), respondents flatly rejected petitioners' proposal and stated they would proceed with the
motion schedule proposed on August 9th.
27. SMA then requested (with BGR and SMA's concurrence), that the Court entertain
a conference to avoid these unnecessary motions and attendant delay. See Exhibit C. The
Court offered August 15 and 16 as possible conference dates. The attorneys for SMA, CAC and
BGR indicated they could make themselves available on August 16, but counsel for the
respondents asserted that they were not available until the following week "due to the press of
other business." See Exhibit C.
28. The Court set a conference date of August 19th to accommodate respondents.
The developer's attorney agreed to circulate a proposed scheduling order to address discovery
and motions by August 26, 2019. See Exhibit C. 1hoped and expected to agree to a scheduling
order that would obviate the need for the September 9th court appearance. •
29. Counsel met and conferred about the discovery issues on August 21,2019.
Respondents did not mention the prior claimed intention to seek discovery from BGR or its
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members, so 1 believed they dropped the issue. As a result of that discussion, 1 thought that we
would be able to agree to a timetable and scope of discovery.
30. August 26th came and went without a proposed scheduling stipulation from the
developer. By email on September 3, Ms. Bloom asked the developer's attorney to advise
when we would receive it.
31. On September 4, 2019 (over two weeks after the August 9th court conference)
the developer's attorney circulated a partial proposed scheduling order that did not include any
details about depositions or documents that would be agreeable to respondents. The
developer's attorney represented that he would provide those details by close of business the
next day. A copy of the Developer's correspondence it attached hereto as Exhibit D.
32. The Developer's draft Stipulation of September 4th provided for a limited lift stay
on identified topics, preliminary depositions of some of the requested individuals, appointment
of a referee to supervise disclosure deadlines to complete discovery, and a procedure for
handling discovery disputes. The September 4th draft stipulation did not contain any
indication that respondents intended to seek discovery from petitioners. 1 concluded that
respondents decided to drop the issue of seeking discovery against BGR because it was
clearly meritless.
33. By Friday, September 6th it appeared that that parties would be able to agree to
discovery parameters. Moreover, respondents had not yet served any papers in opposition to
BGR's lift-stay motion and applicant to compel the town to supplement the administrative
return, which were returnable Monday September 9th. Based on large part on the belief that
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respondents would not be seeking discovery from BGR (because the request would be specious
and no cross-motion had been filed three days before the return date), BGR agreed to adjourn
the September 9th return date for the discovery motions. 1would not have agreed to adjourn
the September 9th return date if the respondents had given any indication at all that they woyld
cross-move for discovery against BGR during our meet-and-confer discussions.
34. On September 9th, the Developer circulated proposed exhibits to the draft
stipulation that disclosed the Developer's willingness to provide most ofthe documents
requested by BGR and produce Danny Daniele and Jess Sudol for depositions. The Developer
did not explain why it refused to produce the remaining documents or witnesses. A copy ofthe
email and September 9th exhibits are attached hereto as Exhibit E. The e-mail stated that
"topics
concerning depositions of the Town witnesses and documents to be produce (sic) by the
Town are yet to be filled in pending discussion Mr. Mancuso is having with his client." The draft
exhibits did not include any discovery addressed to the Town and did not indicate that
respondents intended to seek discovery from BGR. 1continued to believe that respondents
were participating in the meet-and-confer negotiations in good faith, and 1thought
respondents had made a conscious decision not to seek discovery against BGR because such
an effort was clearly baseless.
35. As of September 9th, respondents were in possession of BGR's discovery
demands for over six weeks, and its discovery motion for over a month, but made no effort to
articulate any basis for withholding any document or witness.
36. Counsel for the parties conferred by telephone on September 10, 2019. Some
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progress was made. Respondents agreed that a referee was not needed to supervise
disclosure. Still, the Town refused to identify what documents or witnesses it would produce
voluntarily. No mention was made of any interest to seek discovery from BGR. The
Developer's attorney indicated that he would circulate a new draft stipulation that reflected
our discussions and areas of agreement by the end of the week
37. At 4:11 pm on Friday, September 13th, the Developer's attorney circulated a
completely new draft stipulated scheduling order with exhibits, a copy of which is attached
hereto as Exhibit F. The September 13th draft stipulation did not include any indication as to
what documents or witnesses the Town would provide voluntarily. This draft stipulation for
the first time called for BGR, SMA and CAC to produce documents and witnesses supposedly
related to the Open Meetings Law claims and standing.
38. No explanation was offered as to the basis for these requests, why
respondents sought to depose three of BGR's members, or why this request was not raised
during the three prior weeks that the parties were ostensibly engaged in a good faith effort
to resolve discovery - related issues without juridical intervention.
39. Moments later the Developer's attorney advised Ms. Schild that he had
circulated the revised draft stipulation that that he expected to know "by Monday" whether the
parties would be able to reach a consensus.
40. At 5:01 pm the Developer's attorney finally distributed Exhibit A and B to the
draft stipulation. The Town agreed to produce a subset of the requested documents and
offered no explanation for its about face and sudden refusal to voluntarily produce documents
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it previously agreed to, such as documents related to creation of the easements!
41. Respondents obstructed BGR's efforts to resolve discovery disputes amicably by
refusing to offer any basis at all for their last-minute about face as to what documents and
witnesses would be produced voluntarily. Moreover, they manipulated BGR into adjourning
the discovery motion scheduled for September 9th by failing to disclose their intention to seek
discovery from BGR during the meet-and-confer discussions. Finally, respondents blind-sided
BGR by representing that they would circulate a draft stipulation based on the most recent
agreed changes, and then inserting conditions that were never discussed, let alone agreed to.
42. Moreover, respondents' cross-motion:
a. Isnot brought in good faith;
b. seeks the production of material that is irrelevant to the claims asserted in this
litigation, so isnot permitted under CPLR 3101;
c. isintended to injure, harass and annoy petitioners;
d. ispremature because they never served discovery demand or satisfied their meet-
and-confer obligations with respect to them; and
e. establishes that they have no defense to BGR's lift-stay motion.
There Is No Need To Grant Respondents A Protective Order Because BGR Has In The Past, and
Will Continue, to Cooperate to Avoid Unnecessary Time and Expense
43. Respondents seeks a protective order to (a) limit the depositions to 3 hours per
deponent; (b) limit inquiry to public trust and permissive referendum issues; and (c)avoid
asking repetitive questions.
44. A protective order is not needed to accomplish these objectives.
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45. On June 25, 2019, BGR, SMA and CAC conducted the depositions of Planning
Board Chair William Price and Town Planner Ramsey Boehner. We scheduled the depositions
for a day and a half, but completed all questioning in less than one day. Counsel stuck to the
issues that were within the scope ofthe deposition and, when a dispute arose, resolved the
matter quickly with a telephone call to the Court. There were no duplicative lines of
questioning. The day proceeded smoothly and without incident. For these reasons,there is no
reason to believe that depositions on the public trust and permissive referendum issues will be
problematic or result in unnecessary delay or duplication of effort.
46. BGR agrees to limit its discovery to issues related to the public trust and
permissive referendum claims. hlowever, that is not the same thing as agreeing to limit
discovery to challenging specific factual allegations in respondents' self-serving affidavits.
History of Town Easements
47. The evidence that BGR seeks ismaterial and necessary to whether any
recreation/pedestrian easements were dedicated/conveyed to the Town, the circumstances of
those dedications/conveyances, and the intent ofthe parties thereto — and such facts are
indisputably relevant to BGR's public trust doctrine and permissive referendum claims in these
lawsuits, and are therefore clearly discoverable.
48. On August 26,1965 Rochester Gas and Electric Company ("RGE") acquired the
"G."3
strip of land identified as Parcel 1 on the map attached at Exhibit Parcel 1 was formerly a
3 Attached as Exhibit "G" is the map identifying the parcels that are relevant to this analysis.
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Preview
FILED: MONROE COUNTY CLERK 11/10/2020 03:01 PM INDEX NO. E2018007330 NYSCEF DOC. NO. 507 RECEIVED NYSCEF: 11/10/2020 MONROE COUNTY CLERK’S OFFICE THIS IS NOT A BILL. THIS IS YOUR RECEIPT. Receipt # 2543555 Book Page CIVIL Return To: No. Pages: 171 MINDY LEE ZOGHLIN 300 State Street, Suite 502 Instrument: E HIBIT(S) Rochester, NY 14614 Control #: 202011101208 Index #: E2018007330 Date: 11/10/2020 Brighton Grassroots, LLC Time: 3:06:02 PM DANIELE MANAGEMENT, LLC Town of Brighton Planning Board TOWN OF BRIGHTON TOWN BOARD Town of Brighton M&F, LLC Total Fees Paid: $0.00 Employee: State of New York MONROE COUNTY CLERK’S OFFICE WARNING – THIS SHEET CONSTITUTES THE CLERKS ENDORSEMENT, REQUIRED BY SECTION 317-a(5) & SECTION 319 OF THE REAL PROPERTY LAW OF THE STATE OF NEW YORK. DO NOT DETACH OR REMOVE. JAMIE ROMEO MONROE COUNTY CLERK 202011101208 Index # INDEX : E2018007330 NO. E2018007330 FILED: MONROE COUNTY CLERK 11/10/2020 03:01 PM NYSCEF DOC. NO. 507 RECEIVED NYSCEF: 11/10/2020 EXHIBIT 202011101208 IndexNO. INDEX #: E2018007330 E2018007330 FILED: MONROE COUNTY CLERK 11/10/2020 03:01 PM NYSCEF DOC. NO. 507 RECEIVED NYSCEF: 11/10/2020 ECF No. 264-289 202011101208 IndexNO. INDEX #: E2018007330 E2018007330 FILED: MONROE COUNTY CLERK 09/30/2019 11/10/2020 03:57 03:01 PM NYSCEF DOC. NO. 264 507 RECEIVED NYSCEF: 09/30/2019 11/10/2020 MONROE COUNTY CLERK’S OFFICE THIS IS NOT A BILL. THIS IS YOUR RECEIPT. Receipt # 2225802 Book Page CIVIL Return To: No. Pages: 19 MINDY LEE ZOGHLIN 300 State Street, Suite 502 Instrument: MISCELLANEOUS DOCUMENT Rochester, NY 14614 Control #: 201909301372 Index #: E2018007330 Date: 09/30/2019 Brighton Grassroots, LLC Time: 3:58:16 PM DANIELE MANAGEMENT, LLC Town of Brighton Planning Board TOWN OF BRIGHTON TOWN BOARD Town of Brighton M&F, LLC Total Fees Paid: $0.00 Employee: State of New York MONROE COUNTY CLERK’S OFFICE WARNING – THIS SHEET CONSTITUTES THE CLERKS ENDORSEMENT, REQUIRED BY SECTION 317-a(5) & SECTION 319 OF THE REAL PROPERTY LAW OF THE STATE OF NEW YORK. DO NOT DETACH OR REMOVE. ADAM J BELLO MONROE COUNTY CLERK 1 of 19 201909301372 202011101208 Index Index# INDEX #:: E2018007330 NO. E2018007330 FILED: MONROE COUNTY CLERK 09/30/2019 11/10/2020 03:57 03:01 PM NYSCEF DOC. NO. 264 507 RECEIVED NYSCEF: 09/30/2019 11/10/2020 STATEOFNEWYORK SUPREMECOURT MONROECOUNTY BRIGHTON GRASSROOTS, LLC, Petitioner/ vs. Plaintiff, TOWN OF BRIGHTON PLANNING BOARD, Index No.: TOWN OF BRIGHTON TOWN BOARD, E2018007330 TOWN OF BRIGHTON, BGR2 M&F,LLC;DANIELESPC,LLC Hon.JohnJ.Ark MUCCA MUCCA LLC; MARDANTH ENTERPRISES, INC.; DANIELE MANAGEMENT, LLC; COLLECTIVELY DOING BUSINESS AS DANIELE FAMILY COMPANIES, ROCHESTER GAS AND ELECTRIC CORPORATION, NMS ALLENS CREEK, INC, THE FIRST BAPTIST CHURCH OF ROCHESTER; ATLANTIC HOTEL GROUP, INC.; 2717 MONROE AVENUE, LLC; MAMASAN'S MONROE, LLC; 2799 MONROE AVENUE, LLC; QING KAI SUN; 2815 MONROE RETAIL LLC; 2835 MONROE HOLDINGS LLC; 2875 MONROE CLOVER, LLC; MONROE OFFICE SUITES, LCC; CLOVERPARK LIMITED PARTNERSHIP; NEW YORK STATE DEPARTMENT OF TRANSPORTATION; JOHN DOES 1- 20; AND ABC CORPORATIONS 1-20, Respondents/ Defendants. ATTORNEY AFFIRMATION IN SUPPORT OF BGR'S MOTION AND IN OPPOSITION TO RESPONDENTS' CROSS- MOTION FOR LEAVE TO CONDUCT DISCOVERY MINDY L. ZOGHLIN, an attorney admitted to practice in the State of New York, affirms under the penalty of perjury, and pursuant to CPLR §2106: 1. Iam the Principal Attorney at The Zoghlin Group, PLLC, attorneys for "Plaintiff," "Brighton Grassroots/' or Petitioner/Plaintiff Brighton Grassroots, LLC ("Petitioner," 1 2 of 19 201909301372 202011101208 IndexNO. INDEX #: E2018007330 E2018007330 FILED: MONROE COUNTY CLERK 09/30/2019 11/10/2020 03:57 03:01 PM NYSCEF DOC. NO. 264 507 RECEIVED NYSCEF: 09/30/2019 11/10/2020 BGR"). As such, 1am fully and personally familiar with the facts and circumstances related to this action. 2. Imake this Affirmation inopposition to respondents' cross-motion for leave to conduct discovery. 3. This Affirmation is based upon my personal knowledge unless otherwise stated. The Related Lawsuits 4. The motion relates to discovery efforts in several related lawsuits commenced by three different parties, allof whom challenge the Town of Brighton's municipal decisions with respect to the Whole Foods Plaza "Project"). Project (the 5. Clover/Allens Creek Neighborhood Association, tnc. ("CAC") commenced a combined Article 78 and declaratoryjudgment action on February 16, 2018 (Index No. E2018000937) ("CAC l"). 6. BGR commenced its first special proceeding challenging the Town of Brighton Town Board's SEQRA Findings and Incentive Zoning Approvals on April 27, 2018 (Index No. E2018002961) ("BGR l"). 7. Save Monroe Avenue, Inc. ("SMA") commenced its first special proceeding challenging the Town of Brighton Town Board's SEQRA Findings and Incentive Zoning Approvals on April 26, 2018 (Index No. E2018002894) ("SMA l"). 8. On June 18, 2018 respondents moved to dismiss some, but not all, of the claims asserts in BGR1 and SMA 1. BGR and SMA cross-moved for leave to conduct discovery. 9. Meanwhile, BGR commenced its second special proceeding challenging the Town 3 of 19 201909301372 202011101208 IndexNO. INDEX #: E2018007330 E2018007330 FILED: MONROE COUNTY CLERK 09/30/2019 11/10/2020 03:57 03:01 PM NYSCEF DOC. NO. 264 507 RECEIVED NYSCEF: 09/30/2019 11/10/2020 of Brighton Planning Board Board's SEQRA Findings on September 13, 2018 (Index No. E2018007330, ECF Docs. 1- 9) ("BGR 2") and then commenced its third special proceeding challenging the Town of Brighton Planning Board Site Plan approvals on October 16, 2018 (Index No. E2018008343, ECF Docs. 1 - 17) ("BGR 3"). BGR 2 and BGR 3 were consolidated into BGR 2. SMA did the same. E2018007331) ("SMA 2") and Index No. E2018008349 ("SMA 3"). Respondents Delayed Filing the Administrative Return and Answers for Almost a Year 10. Respondents' motion to dismiss in BGR 1 and SMA 1 stayed responsive pleadings in those cases pursuant to CPLR 3211(f). However, it did not stay responsive pleadings in BGR 2,BGR3,SMA2orSMA3. 11. On November 27, 2018 the parties to the BGR and SMA lawsuits entered into a Stipulated Scheduling Order in which respondents' time to file and serve administrative records and answers for BGR 1, BGR 2, BGR 3, SMA 1, SMA 2, and SMA3 were stayed for an indefinite period oftime pending issuance ofthe Court's decisions on the pending motions to dismiss in BGR1and SMA 1. BGR 2, Index No. 2018007330,ECF Doc. No.40; BGR 3, Index No. E2018008343, ECF Doc. 48. 12. On February 7,2019 Justice Doyle granted respondents' motions and denied BGR's cross-motions in BGR 1 and SMA I.1 Under CPLR 3211(f), respondents' time to serve responsive pleadings would have expired on February 17, 2019. Respondents asked petitioners to consent to additional time to file the Administrative Return and answers. We did. 1 BGR appealed this decision. Oral argument is scheduled for October 23, 2019. 3 4 of 19 201909301372 202011101208 IndexNO. INDEX #: E2018007330 E2018007330 FILED: MONROE COUNTY CLERK 09/30/2019 11/10/2020 03:57 03:01 PM NYSCEF DOC. NO. 264 507 RECEIVED NYSCEF: 09/30/2019 11/10/2020 13. On March 22, 2019 the parties entered into a Stipulated Scheduling Order in which respondents' time to file and serve administrative records in BGR 1-3 and SMA 1-3 was stayed to April 5, 2019 and their time to file answers, objections in point of law and dispositive motions was stayed to May 24, 2019. Petitioners were to file opposition papers by July 8, 2019, replies were due July 8, 2019 and oral argument was set for July 17, 2019. BGR 2, Index No. E2018007330, ECF Doc No.245; BGR 3, Index No. E2018008343, ECF Doc. 69. 14. On April 5, 2019 the Town filed the Notice of Hard Copy Exhibit filing for the Administrative Return and mailed it topetitioners. Upon preliminary review ofthe Administrative Return, BGR concluded that it was incomplete and asked the Town to supplement omitted documents. The Town supplemented the Administrative Return on June 3,2019. 15. On May 20, 2019 the parties entered into a First Amended Scheduling Order in which respondents' time to file answers, objections in point of law and dispositive motions in BGR 2 and SMA 2 was stayed to June 14, 2019. Petitioners were to file opposition papers by July 15, 2019, replies were due August 9, 2019 and oral argument was set for August 20, 2019. BGR 2, Index No. E2018007330, ECF Doc No. 258. The pleadings were timely served pursuant tothisstipulated order. 16. At respondents' request, respondents' time to answer the petitions in BGR 1 and SMA 1 was delayed from February 17, 2019 to June 14, 2019 and their time to answer the petition in BGR 2-3 and SMA 2-3 was delayed from the Fall of 2018 to June 14, 2019. 5 of 19 201909301372 202011101208 IndexNO. INDEX #: E2018007330 E2018007330 FILED: MONROE COUNTY CLERK 09/30/2019 11/10/2020 03:57 03:01 PM NYSCEF DOC. NO. 264 507 RECEIVED NYSCEF: 09/30/2019 11/10/2020 Respondents Obstructed Petitioners' Efforts to Obtain Discovery and Delayed Commencement of Discovery By Negotiating in Bad Faith 17. On June 28, 2019, the Appellate Division issued a decision in CAC 1. 18. On July 17 and 19, 2019, CAC served deposition notices and discovery demands to respondents related to their public trust claims. 19. By letter dated July 23, 2019 1 asked respondents to consent to BGR's participation in CAC's deposition and discovery requests because CAC's demands only sought material and relevant discovery and 1 saw no need to serve redundant demands. See BGR 2, Index No. E2018007330, Doc. No. 157. 20. The Town rejected my request that day by email. See BGR 2, Index No. E2018007330, Doc. No.158. 21. Given no alternative, BGR made a motion to lift the stay imposed by CPLR 3214 and proceed with discovery on July 29, 2019. In this motion, BGR seeks to serve deposition notices and discovery demands that are identical to those served by CAC in CAC 1. See BGR 2, Index No. E2018007330, Doc. No. 153-159. 22. Counsel for respondents, BGR, CAC and SMA appeared before the Court for a pretrial conference on August 6, 2019 for the purpose of discussing possible settlement of the discovery issues. At that time, the Court set a return date of September 9, 2019 for BGR and SMA's motions to compel discovery. 23. On August 9, 2019 (a copy of which is attached hereto as Exhibit A), the "draft" open developer's attorney circulated a letter to the Court and counsel that outlined discovery issues. The draft letter: 6 of 19 201909301372 202011101208 IndexNO. INDEX #: E2018007330 E2018007330 FILED: MONROE COUNTY CLERK 09/30/2019 11/10/2020 03:57 03:01 PM NYSCEF DOC. NO. 264 507 RECEIVED NYSCEF: 09/30/2019 11/10/2020 a. Proposed all non-dispositive motions be filed by August 23, 2019, b. Proposed a briefing schedule that would allow the non-dispositive motions to be heard on August 9,2019, and c. Called for all documents to be produced no later than September 30, 2019 and all depositions to be completed by October 18, 2019. 24. The Developer's August 9th letter also indicated that he intended to make a motion to lift stay to permit discovery against petitioners on the issues of standing and attorneys' fees, and proposed to seek documents and take the deposition testimony of BGR members Howard Jacobson, Peter Mulberry, and Norman Whittemore regarding those issues. 1 considered this statement to be an idle threat because, as counsel well knows, the issue of attorneys' fees on the Open Meetings Law claims is done by affidavit, not live testimony2. Moreover, petitioners have clearly pled individual and organization standing, and respondents never challenged itin BGR 1, or raised any issue with respect to it inBGR2 until they were faced with having to submit to discovery themselves. Finally, there is no legitimate basis for respondents to seek discovery related to payment of attorneys' fees in this litigation. 25. BGR, SMA and CAC collectively responded to the developer's August 9, 2019 letter on August 12, 2019 (a copy of the e-mail chain is attached hereto as Exhibit B). We: a. Pointed out that it was inconsistent for the developer to oppose petitioners' lift-stay motion and at the same time suggest that it intended to seek discovery, b. Asked respondents to withdraw their summary judgment motions without prejudice 2 See, e.g., Roth & Roth, LLP and Charles Dempsey v. City ofRochester et al, E2019001998 (Monroe Co. 2019). 6 7 of 19 201909301372 202011101208 IndexNO. INDEX #: E2018007330 E2018007330 FILED: MONROE COUNTY CLERK 09/30/2019 11/10/2020 03:57 03:01 PM NYSCEF DOC. NO. 264 507 RECEIVED NYSCEF: 09/30/2019 11/10/2020 and proceed with discovery in the normal course, which would include service of discovery demands, meet-and-confer to resolve any disputes, and, as a last report, motion practice, c. Proposed that SMA and BGR's motion to compel the Town to supplement the record be done on submitted papers, and d. Suggested a more realistic discovery schedule. 26. By emails dated August 13, 2019 (copies of which are attached hereto as Exhibit C), respondents flatly rejected petitioners' proposal and stated they would proceed with the motion schedule proposed on August 9th. 27. SMA then requested (with BGR and SMA's concurrence), that the Court entertain a conference to avoid these unnecessary motions and attendant delay. See Exhibit C. The Court offered August 15 and 16 as possible conference dates. The attorneys for SMA, CAC and BGR indicated they could make themselves available on August 16, but counsel for the respondents asserted that they were not available until the following week "due to the press of other business." See Exhibit C. 28. The Court set a conference date of August 19th to accommodate respondents. The developer's attorney agreed to circulate a proposed scheduling order to address discovery and motions by August 26, 2019. See Exhibit C. 1hoped and expected to agree to a scheduling order that would obviate the need for the September 9th court appearance. • 29. Counsel met and conferred about the discovery issues on August 21,2019. Respondents did not mention the prior claimed intention to seek discovery from BGR or its 8 of 19 201909301372 202011101208 IndexNO. INDEX #: E2018007330 E2018007330 FILED: MONROE COUNTY CLERK 09/30/2019 11/10/2020 03:57 03:01 PM NYSCEF DOC. NO. 264 507 RECEIVED NYSCEF: 09/30/2019 11/10/2020 members, so 1 believed they dropped the issue. As a result of that discussion, 1 thought that we would be able to agree to a timetable and scope of discovery. 30. August 26th came and went without a proposed scheduling stipulation from the developer. By email on September 3, Ms. Bloom asked the developer's attorney to advise when we would receive it. 31. On September 4, 2019 (over two weeks after the August 9th court conference) the developer's attorney circulated a partial proposed scheduling order that did not include any details about depositions or documents that would be agreeable to respondents. The developer's attorney represented that he would provide those details by close of business the next day. A copy of the Developer's correspondence it attached hereto as Exhibit D. 32. The Developer's draft Stipulation of September 4th provided for a limited lift stay on identified topics, preliminary depositions of some of the requested individuals, appointment of a referee to supervise disclosure deadlines to complete discovery, and a procedure for handling discovery disputes. The September 4th draft stipulation did not contain any indication that respondents intended to seek discovery from petitioners. 1 concluded that respondents decided to drop the issue of seeking discovery against BGR because it was clearly meritless. 33. By Friday, September 6th it appeared that that parties would be able to agree to discovery parameters. Moreover, respondents had not yet served any papers in opposition to BGR's lift-stay motion and applicant to compel the town to supplement the administrative return, which were returnable Monday September 9th. Based on large part on the belief that 8 9 of 19 201909301372 202011101208 IndexNO. INDEX #: E2018007330 E2018007330 FILED: MONROE COUNTY CLERK 09/30/2019 11/10/2020 03:57 03:01 PM NYSCEF DOC. NO. 264 507 RECEIVED NYSCEF: 09/30/2019 11/10/2020 respondents would not be seeking discovery from BGR (because the request would be specious and no cross-motion had been filed three days before the return date), BGR agreed to adjourn the September 9th return date for the discovery motions. 1would not have agreed to adjourn the September 9th return date if the respondents had given any indication at all that they woyld cross-move for discovery against BGR during our meet-and-confer discussions. 34. On September 9th, the Developer circulated proposed exhibits to the draft stipulation that disclosed the Developer's willingness to provide most ofthe documents requested by BGR and produce Danny Daniele and Jess Sudol for depositions. The Developer did not explain why it refused to produce the remaining documents or witnesses. A copy ofthe email and September 9th exhibits are attached hereto as Exhibit E. The e-mail stated that "topics concerning depositions of the Town witnesses and documents to be produce (sic) by the Town are yet to be filled in pending discussion Mr. Mancuso is having with his client." The draft exhibits did not include any discovery addressed to the Town and did not indicate that respondents intended to seek discovery from BGR. 1continued to believe that respondents were participating in the meet-and-confer negotiations in good faith, and 1thought respondents had made a conscious decision not to seek discovery against BGR because such an effort was clearly baseless. 35. As of September 9th, respondents were in possession of BGR's discovery demands for over six weeks, and its discovery motion for over a month, but made no effort to articulate any basis for withholding any document or witness. 36. Counsel for the parties conferred by telephone on September 10, 2019. Some 10 of 19 201909301372 202011101208 IndexNO. INDEX #: E2018007330 E2018007330 FILED: MONROE COUNTY CLERK 09/30/2019 11/10/2020 03:57 03:01 PM NYSCEF DOC. NO. 264 507 RECEIVED NYSCEF: 09/30/2019 11/10/2020 progress was made. Respondents agreed that a referee was not needed to supervise disclosure. Still, the Town refused to identify what documents or witnesses it would produce voluntarily. No mention was made of any interest to seek discovery from BGR. The Developer's attorney indicated that he would circulate a new draft stipulation that reflected our discussions and areas of agreement by the end of the week 37. At 4:11 pm on Friday, September 13th, the Developer's attorney circulated a completely new draft stipulated scheduling order with exhibits, a copy of which is attached hereto as Exhibit F. The September 13th draft stipulation did not include any indication as to what documents or witnesses the Town would provide voluntarily. This draft stipulation for the first time called for BGR, SMA and CAC to produce documents and witnesses supposedly related to the Open Meetings Law claims and standing. 38. No explanation was offered as to the basis for these requests, why respondents sought to depose three of BGR's members, or why this request was not raised during the three prior weeks that the parties were ostensibly engaged in a good faith effort to resolve discovery - related issues without juridical intervention. 39. Moments later the Developer's attorney advised Ms. Schild that he had circulated the revised draft stipulation that that he expected to know "by Monday" whether the parties would be able to reach a consensus. 40. At 5:01 pm the Developer's attorney finally distributed Exhibit A and B to the draft stipulation. The Town agreed to produce a subset of the requested documents and offered no explanation for its about face and sudden refusal to voluntarily produce documents 10 11 of 19 201909301372 202011101208 IndexNO. INDEX #: E2018007330 E2018007330 FILED: MONROE COUNTY CLERK 09/30/2019 11/10/2020 03:57 03:01 PM NYSCEF DOC. NO. 264 507 RECEIVED NYSCEF: 09/30/2019 11/10/2020 it previously agreed to, such as documents related to creation of the easements! 41. Respondents obstructed BGR's efforts to resolve discovery disputes amicably by refusing to offer any basis at all for their last-minute about face as to what documents and witnesses would be produced voluntarily. Moreover, they manipulated BGR into adjourning the discovery motion scheduled for September 9th by failing to disclose their intention to seek discovery from BGR during the meet-and-confer discussions. Finally, respondents blind-sided BGR by representing that they would circulate a draft stipulation based on the most recent agreed changes, and then inserting conditions that were never discussed, let alone agreed to. 42. Moreover, respondents' cross-motion: a. Isnot brought in good faith; b. seeks the production of material that is irrelevant to the claims asserted in this litigation, so isnot permitted under CPLR 3101; c. isintended to injure, harass and annoy petitioners; d. ispremature because they never served discovery demand or satisfied their meet- and-confer obligations with respect to them; and e. establishes that they have no defense to BGR's lift-stay motion. There Is No Need To Grant Respondents A Protective Order Because BGR Has In The Past, and Will Continue, to Cooperate to Avoid Unnecessary Time and Expense 43. Respondents seeks a protective order to (a) limit the depositions to 3 hours per deponent; (b) limit inquiry to public trust and permissive referendum issues; and (c)avoid asking repetitive questions. 44. A protective order is not needed to accomplish these objectives. 11 12 of 19 201909301372 202011101208 IndexNO. INDEX #: E2018007330 E2018007330 FILED: MONROE COUNTY CLERK 09/30/2019 11/10/2020 03:57 03:01 PM NYSCEF DOC. NO. 264 507 RECEIVED NYSCEF: 09/30/2019 11/10/2020 45. On June 25, 2019, BGR, SMA and CAC conducted the depositions of Planning Board Chair William Price and Town Planner Ramsey Boehner. We scheduled the depositions for a day and a half, but completed all questioning in less than one day. Counsel stuck to the issues that were within the scope ofthe deposition and, when a dispute arose, resolved the matter quickly with a telephone call to the Court. There were no duplicative lines of questioning. The day proceeded smoothly and without incident. For these reasons,there is no reason to believe that depositions on the public trust and permissive referendum issues will be problematic or result in unnecessary delay or duplication of effort. 46. BGR agrees to limit its discovery to issues related to the public trust and permissive referendum claims. hlowever, that is not the same thing as agreeing to limit discovery to challenging specific factual allegations in respondents' self-serving affidavits. History of Town Easements 47. The evidence that BGR seeks ismaterial and necessary to whether any recreation/pedestrian easements were dedicated/conveyed to the Town, the circumstances of those dedications/conveyances, and the intent ofthe parties thereto — and such facts are indisputably relevant to BGR's public trust doctrine and permissive referendum claims in these lawsuits, and are therefore clearly discoverable. 48. On August 26,1965 Rochester Gas and Electric Company ("RGE") acquired the "G."3 strip of land identified as Parcel 1 on the map attached at Exhibit Parcel 1 was formerly a 3 Attached as Exhibit "G" is the map identifying the parcels that are relevant to this analysis. 12 13 of 19 201909301372 202011101208 IndexNO. INDEX #: E2018007330 E2018007330 FILED: MONROE COUNTY CLERK 09/30/2019 11/10/2020 03:57 03:01 PM NYSCEF