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STATE OF NEW YORK

SUPREME COURT: COUNTY OF ERIE


_____________________________________
AFFINITY ELMWOOD GATEWAY
PROPERTIES LLC,
Plaintiff
vs.
AJC PROPERTIES LLC, et al.,
Defendants.
____________________________________

AFFIRMATION IN SUPPORT OF
CROSS-MOTION REQUESTING
DISQUALIFICATION OF JUDGE
Index No. I 2011-3883
Assigned to: Hon. John A. Michalek

ARTHUR J. GIACALONE, being an attorney duly admitted to practice in the


State of New York, subscribes and affirms the following to be true under the penalty of
perjury:
1. I am attorney for defendants Evelyn Bencinich, Susan M. Davis, Steven
Gathers, Angeline C. Genovese, Sandra Girage and Lorenz M. Wustner (hereinafter,
referred to collectively as the answering defendants). I am fully familiar with the facts
and circumstances of this matter, and, unless otherwise noted, I have personal knowledge
of the facts asserted in this affirmation.
2. This affirmation is provided in support of the answering defendants crossmotion which asks the Hon. John A. Michalek, Justice of the Supreme Court, to enter an
order disqualifying himself in this proceeding in accordance with 22 NYCRR
100.3(E)(1). An affirmation in opposition to plaintiffs pending default judgment motion
will be filed separately. Attached hereto for the convenience of the Court as the
Appendix are copies of the following documents: the Courts January 8, 2013
Memorandum Decision (hereinafter, Memorandum Decision); plaintiffs Order To
Show Cause With A Temporary Restraining Order granted November 20, 2012

(hereinafter, OSC/TRO); the November 20, 2012 Affirmation submitted by Kevin J.


Cross, Esq., without the accompanying exhibits (hereinafter, Cross Affirmation);
Defendants Notice of Cross-Motion For Costs and Sanctions Under 22 NYCRR Part 130
with Affirmation, dated November 27, 2012; the November 27, 2012 Affirmation
Opposing Affinity Motion and Supporting Cross-Motion for Costs and Sanctions
submitted by Arthur J. Giacalone, Esq., without the accompanying exhibits (hereinafter,
Giacalone Affirmation); the November 29, 2012 Reply Affirmation submitted by
Kevin J. Cross, Esq. (hereinafter, Cross Reply Affirmation); the answering defendants
Order To Show Cause with Supporting Affirmation for Relief Pursuant to CPLR 6314,
granted December 6, 2012; the December 5, 2012 Supporting Affirmation of Karen S.
Smith, Esq., without the accompanying exhibits (hereinafter, Smith Affirmation); the
December 11, 2012 Affirmation submitted by Dennis C. Vacco, Esq., with exhibit
(hereinafter, Vacco Affirmation); and, the December 12, 2012 Reply Affirmation of
Karen S. Smith (hereinafter, Smith Reply Affirmation).
OVERVIEW OF THE FACTS
3. As the Court is well aware, plaintiff Affinity Elmwood Gateway Properties
LLC (Affinity) purchased eleven properties approximately four years ago that are
situated at the southeast corner of the intersection of Elmwood and Forest avenues in the
City of Buffalo (referred to hereinafter as the Affinity properties). The Affinity
properties are developed with two-and-a-half story structures built as residences a century
ago. Restrictive covenants created in 1892 prohibit, among other things, the construction
of any building on the Affinity properties for use as any business establishment
whatsoever. Plaintiff has expressed a desire to demolish the existing structures and

construct a six-story, 200,000-square-foot mixed-use development consisting of a


hotel, retail space and residential condominiums.
4. Plaintiff, a limited liability company formed in 2008 for the specific purpose of
acquiring the Affinity properties, is one of a number of business entities known
informally as the Chason Affinity companies. Upon information and belief, the two
primary principals of the Chason Affinity companies are Mark Chason and P. Jeffrey
(Jeff) Birtch.
5. In September 2011, plaintiff commenced an action seeking to extinguish the
restrictive covenants burdening the Affinity properties. Affinitys attorneys-of-record in
this action, the law firm of Lippes Mathias Wexler Friedman LLP (hereinafter, the
Lippes firm) also represented plaintiff when it purchased the Affinity properties. My
clients, the answering defendants, are owners of five residences on Granger Place and
Forest Avenue located immediately adjacent to the Affinity properties. The answering
defendants oppose the extinguishing of the restrictive covenants, and have asked the
Court to enforce the deed restrictions.
6. As is set forth in detail at paragraph 11(a)-(n) of the Giacalone Affirmation, I
took steps on behalf of the answering defendants, commencing in February 2012, urging
the City of Buffalos Permits and Inspection Services Bureau (inspections office) to
inspect Affinitys Elmwood Avenue properties to address chronic code violations and
substantial deterioration adversely impacting the desirable character of the properties and
the adjoining neighborhood. By letter dated August 2, 2012, I made a request to the
City, pursuant to the States Freedom of Information Law (FOIL), for copies of all
notices of violation issued in 2012 for the Affinity properties. Five days later I received

documents from the City which show that on or about July 16, 2012 Affinity was sent
Notices of Violation by the inspections office regarding property maintenance code
violations at seven of its Elmwood Avenue properties. Each Notice of Violation
instructed Affinity that the items noted above must be corrected by 8-16-12. The code
violations included, for example, deteriorated roofs that Affinity was ordered to replace,
gaping holes in soffits and gutters that Affinity was ordered to repair, peeling houses that
Affinity was ordered to repaint, and pigeon infestation that Affinity was ordered to
eliminate. Attached hereto as Exhibit A are photographs that I took from the public
sidewalk on Elmwood Avenue that depict several of the conditions at the Affinity
properties I had complained about. Despite the extent of deterioration, one of plaintiffs
lawyers, Kevin J. Mr. Cross, Esq., recently characterized the conditions as mere
technical violations.
7. In mid-August 2012, Western New York newspapers and media outlets
announced that Kaleida Health (which describes itself as Western New Yorks largest
health care provider) had selected the Chason Affinity companies proposal for a school
of veterinary medicine as the winner of its competition for a re-use/redevelopment plan
for the former Millard Fillmore Hospital complex at Gates Circle in the City of Buffalo.
8. On August 28, 2012, I wrote a letter-to-the-editor regarding the proposed
Millard Fillmore Hospital reuse/redevelopment project. The letter was written and
disseminated in my personal capacity as a concerned citizen and former resident of the
City of Buffalo, not as a representative of the answering defendants or any other client. I
forwarded the letter to The Buffalo News that date. Because I did not know whether the
newspaper would be publishing my submission, I went to the Kaleida Health web site the

following day and sent the text of the letter, as a comment at the web sites Contact US
page, to Kaleida Healths President/CEO, James Kaskie. My message stated:
Dear Mr. Kaskie,
Chason Affinitys proposal to re-use the Millard Fillmore Gates Circle
Hospital site as a veterinarian teaching hospital may well be visionary. But
more than an inspired idea will be needed if Kaleida Health is to reach its
laudable goals for re-use of the prominent landmark.
The expressed purpose of Kaleidas million-dollar development
competition was to get the best ideas and the most capable developers to do
something great with the hospital site great for the neighborhood, city,
developer and Kaleida. For that goal to be met, Chason Affinity will need to
substantially up its game from its performance the past several years at the
southeast corner of Elmwood and Forest avenues.
In 2007, with vague plans to construct student housing, a Chason Affinity
subsidiary signed a contract to buy several century-old buildings at Elmwood and
Forest. A year-and-a-half later, despite a risky financial market, a group of
unhappy neighbors, and deed restrictions prohibiting any business
establishment, Affinity proceeded with the purchase, spending nearly $2 million
for eleven parcels. When the developer subsequently announced its vision for the
gateway to the Elmwood Village, it proposed construction of a 6-story, 175,000
square-foot mixed use project poorly suited for the neighborhood, rather than
the creative re-use of the quintessential Elmwood Village properties.
Unable to convince the adjoining owners to approve its project, Affinity is
now in court seeking to extinguish the restrictive covenants that protect its
neighbors. During the intervening years, the developers properties have been
allowed to deteriorate in plain sight of residents, commuters and tourists. Affinity
has been recently cited for code violations at eight of its properties.
Chason Affinity may have won the competition, but the Kaleida may want
to think long and hard before designating it the developer of the Gates Circle site.
On August 30, 2012, Kaleida Healths Vice-President/Chief Marketing Officer, Michael
Hughes, sent the following reply: Thank you for your comment & input. MIKE.
9. Only one sentence in the August 29, 2012 communication to Kaleida Health
referred to Affinitys lawsuit to extinguish the restrictive covenants: Unable to convince

the adjoining owners to approve its project, Affinity is now in court seeking to extinguish
the restrictive covenants that protect its neighbors.
10. The communication also contained the following comment regarding the
condition of the Affinity properties and property code violations:
During the intervening years, the developers properties have been allowed to
deteriorate in plain sight of residents, commuters and tourists. Affinity has been
recently cited for code violations at eight of its properties.
11. Despite the Citys July 16, 2012 Notices of Violation advising Affinity that
the identified code violations at its Elmwood Avenue properties had to be corrected by
August 16, 2012, the repairs had not taken place by the first week of October 2012. On
October 5, 2012, I emailed to the Director of the Citys inspection office, Patrick Sole,
Jr., a message advising him that the identified code violations had not been corrected, and
forwarding photographs of the existing conditions. I sent a copy of the email to City of
Buffalo Councilmember Michael Locurto. In hopes that Kaleida Health might encourage
the winner of its Millard Fillmore Hospital competition to correct the code violations, I
also sent a copy of my October 5, 2012 email to Kaleida Healths Michael Hughes. I did
not receive a reply.
12. Six weeks later, on November 15, 2012, I sent an email to Pat Sole advising
him that there was still no sign of any noticeable repairs at the Affinity properties,
attaching photographs of the then-current conditions. Once again, I sent a copy of the
email to Councilmember Locurto and Kaleida Healths Michael Hughes. Mr. Hughes did
not reply.

13. On November 20, 2012, Brendan H. Little, Esq., of the Lippes firm, appeared
on behalf of plaintiff in Your Honors chambers to present an OSC/TRO seeking the
following relief:
(a) A temporary restraining order temporarily restraining me and my agents from
communicating with Kaleida Health, the City of Buffalo, and their respective
agents/employees concerning the subject litigation until further Order of this Court.
(b) An order precluding and/or enjoining me and my agents from engaging in
communication with unrelated third-parties concerning the subject litigation that violates
Rule 4.4(a) of New Yorks Rules of Professional Conduct [RPC]. RPC Rule 4.4(a)
provides the following:
Rule 4.4 RESPECT FOR RIGHTS OF THIRD PERSONS:
(a) In representing a client, a lawyer shall not use means
that have no substantial purpose other than to embarrass
or harm a third person or use methods of obtaining
evidence that violate the legal rights of such person.

(c) An order precluding and/or enjoining me from engaging in communication


concerning the subject litigation that violates Rule 3.4(e) of the RPC. RPC Rule 3.4(e)
provides the following:
Rule 3.4 FAIRNESS TO OPPOSING PARTY AND COUNSEL:
A lawyer shall not:

(e) present, participate in presenting, or threaten to present


criminal charges solely to obtain an advantage in a civil
matter.
(d) An order, pursuant to 22 NYCRR 130-1.1, imposing financial sanctions
against me in the amount of $10,000, and awarding plaintiff costs and reasonable

attorneys fees, for repeated violations of NYs RPC and engaging in frivolous
conduct. For purposes of 22 NYCRR Part 130, conduct is frivolous if:
(1) it is completely without merit in law and cannot be supported by a reasonable
argument for an extension, modification or reversal of existing law;
(2) it is undertaken primarily to delay or prolong the resolution of the litigation,
or to harass or maliciously injure another; or
(3) it asserts material factual statements that are false.
Frivolous conduct shall include the making of a frivolous motion for costs or
sanctions under this section. In determining whether the conduct undertaken was
frivolous, the court shall consider, among other issues the circumstances under
which the conduct took place, including the time available for investigating the
legal or factual basis of the conduct, and whether or not the conduct was
continued when its lack of legal or factual basis was apparent, should have been
apparent, or was brought to the attention of counsel or the party.

14. During the brief conference in chambers on November 20th, Mr. Little told
the Court that his firm had received a phone call from an angry client on Friday,
November 16, 2012, in response to my November 15, 2012 email to the City of Buffalo
and Kaleida Health. Mr. Little did not identify the angry caller or the person at his firm
who received the call. Mr. Little also failed to explain why the client was angry, or state
whether the client was angry at the Lippes law firm, the City of Buffalo, Kaleida Health,
and/or me.
15. The OSC/TRO was supported by an affirmation submitted by the Lippes
firms Kevin J. Cross, Esq. The Cross Affirmation makes two primary accusations
against me, parroting the language in the RPC provisions I allegedly violated:
(a) In support of plaintiffs claim that I had violated RPC Rule 4.4(a), Mr. Cross
alleges that I had communicated with Kaleida Health with no substantial purpose other
than to embarrass or harm the Plaintiff, Mr. Chason, Mr. Birtch or the Chason Affinity

companies, in order to destroy their business relationship with Kaleida Health and
prevent the Chason Affinity companies from re-developing the Gates Circle site.
Plaintiffs purported proof that the purpose of my communications with Kaleida Health
was to destroy Chason Affinitys business relationship with the health provider is the last
sentence in my August 29, 2012 email to Kaleida:
Chason Affinity may have won the competition, but the Kaleida may want
to think long and hard before designating it the developer of the Gates Circle site.
(b) In support of plaintiffs claim that I had violated RPC Rule 3.4(e), Mr. Cross
alleges that I had communicated with the City of Buffalo regarding property code
violations at the Affinity properties for the sole purpose of gain[ing] an advantage in the
subject litigation. At no time does Mr. Cross describe what possible advantage
defendants might hope to gain in this lawsuit by bringing property code violations to the
attention of the City inspectors.
16. Neither the motion papers submitted to the Court on November 20, 2012 in
support of plaintiffs application for the above-requested relief, nor the papers
subsequently filed with Court by the Lippes law firm on behalf of Affinity, include an
affidavit or any other admissible evidence from Mark Chason, Jeff Birtch, or any other
person affiliated with the Chason Affinity companies describing: (a) what, if any,
communications were exchanged between Kaleida Health and Chason Affinity as a result
of my three communications with Kaleida Health; or, (b) in what way, if any, their
relationship with Kaleida Health had been harmed, or might be harmed if I were allowed
to continue my communication with the owner of the vacant Millard Fillmore Hospital
site. At no time did Your Honor ask plaintiffs counsel to explain this omission, and at
no time did plaintiffs counsel offer an explanation for the absence of a client affidavit.

17. Your Honor granted the TRO restraining my communications with Kaleida
Health on November 20, 2012, making the show cause order returnable on November 30,
2012. I filed a cross-motion on behalf of the answering defendants on November 27,
2012, requesting the imposition of sanctions against plaintiff and/or its counsel for
engaging in frivolous conduct, that is, plaintiffs frivolous motion against me for costs
and sanctions under 22 NYCRR Subpart 130-1. The answering defendants affirmation
in support of their cross-motion and opposition to plaintiffs application (the Giacalone
Affirmation) addressed a number of issues, including, without limitation, the following:
- Plaintiffs subversion of the purpose of the Rules of Professional Conduct
(RPC) and the integrity of the judicial process.
- The total absence of evidentiary proof to support plaintiffs request for
preliminary relief.
- Affinitys failure to distinguish between the subject of this lawsuit (whether or
not the deed restrictions burdening the Affinity properties should be extinguished) and
the answering defendants desire to have property maintenance violations at plaintiffs
Elmwood Avenue properties corrected.
- Opposing counsels animus towards me and malicious effort to prejudice the
Court against me and my clients.
- The meritless nature of Affinitys accusations that I had violated RPC Rule
3.4(e) and Rule 4.4(a).
- The meritless nature of Affinitys accusations that I had engaged in frivolous
conduct as defined at 22 NYCRR Subpart 130-1.

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18. The TRO against me was subsequently extended on November 30, 2012, and
again on December 14, 2012. I advised the Court at the November 30, 2012 proceeding
that my strategy of notifying Kaleida Health of the uncorrected code violations in hopes
that they would give Affinity a nudge to do the repairs was apparently working. I also
provided photographs to the Court showing that Affinity had begun repairs at its
Elmwood Avenue properties within several days of my 11/15/12 email. In response,
Your Honor stated that the Courts concerns regarding my intent were not vitiated by the
pictures or even the fact that those problems exist. [See 11/30/12 Transcript, page 19,
lines 13-20, attached hereto as part of Exhibit C.] At no time prior to granting the TRO
on November 20, 2012, or extending the restraining order on November 30, 2012 and
December 14, 2012, did Your Honor ask me whether I intended to continue my
communications with Kaleida Health, or whether I would voluntarily refrain from such
contact while plaintiffs application was under consideration.
19. With one exception, at no time in chambers on November 20, 2012, or at the
November 30, 2012 court proceeding, did it appear to me that Your Honor had any
interest in hearing and considering my defense against the accusations raised against me
in plaintiffs application, any appreciation for the drastic nature of a TRO, or any respect
for me as an attorney or human being. [The one exception was the Courts recognition
that opposing counsels request that I be enjoined from communicating with the City
inspections office was unsupportable.] The Court seemed unfazed by the absence of
proof that the failure to issue the TRO would result in immediate and irreparable harm to
plaintiff or the Chason Affinity companies. When I expressed my concern that Your
Honor was signing the OSC/TRO before I had an opportunity to address the merits of

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plaintiffs legal claims, Your Honor sharply stated, I will not debate this. At the end of
oral argument on November 30, 2012, Your Honor noted that the TRO would be
continued, and then, treating me as if I had a history of violating court orders, or did not
grasp the seriousness of a TRO, raised your voice and warned me: Do not play games
with the Supreme Court Judge on a TRO. [See 11/30/12 Transcript, page 19, lines 2425, attached hereto as part of Exhibit C.]
20. In light of the Courts apparent hostile attitude towards me, I gladly accepted
the offer of the Hon. Karen S. Smith, retired Acting Justice of the State Supreme Court
(New York County), to provide assistance to me, a total stranger, to address the TRO and
the meritless nature of plaintiffs application. As Your Honor knows, a motion was
submitted to the Court on my behalf on December 6, 2012 to vacate the TRO pursuant to
CPLR 6314. Our Order to Show Cause was made returnable at 9:30 A.M. on December
14, 2012, at the same time the Court intended to announce its decision on plaintiffs
application and the answering defendants cross-motion. The Court was gracious to
Judge Smith on the 14th. However, during oral argument, plaintiffs counsel, Dennis C.
Vacco, Esq., made the unsupported and unsupportable claim that my communication with
Kaleida Health was scurrilous and untrue, allegations that had not been made in
plaintiffs three written affirmations. Following oral argument, Your Honor reserved
decision and continued the TRO.
21. On January 8, 2013, the Court issued its Memorandum Decision determining
plaintiffs application and the answering defendants cross-motion. The oft-extended
TRO was replaced with a protective order, issued pursuant to CPLR Article 31
(Disclosure), rather than Article 63 (Injunction), barring both parties counsel and their

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agents and employees from communicating directly or indirectly with Kaleida Health or
any officer, agent or affiliate of Kaleida Health concerning the subject matter of the
litigation, absent further order of this court. The decision also denied all requests for
sanctions.
22. As of the date of this application, counsel are not in agreement on a proposed
Order.
COMMUNICATIONS BETWEEN CHASON AFFINITY and KALEIDA
23. Despite several opportunities to do so, plaintiffs counsel never provided the
Court with affidavits from their clients, including the principals of the Chason Affinity
companies, Mark Chason and Jeff Birtch, addressing the communications, if any, that had
occurred between them and Kaleida Health in response to my August 29th, October 5th
and November 15th emails. As counsel for the answering defendants, I found plaintiffs
silence deafening, given the requirement for evidentiary proof of immediate and
irreparable injury or harm when preliminary relief is sought by a party. I also found the
absence of an affidavit from Mr. Chason or Mr. Birtch suspicious, given the half-page
gap at the top of the forwarded August 29, 2012 email message attached as an exhibit to
Mr. Vaccos December 11, 2012 affirmation. [The Vacco affirmation and exhibit are
included in the accompanying Appendix.] The Vacco exhibit starts mid-page, and
provides the text of my comment to James Kaskie, Kaleida Healths President/CEO.
Upon information and belief, omitted from the top of the first page of the two-page
exhibit is the message from the person who had sent the Forwarded Message, most
likely a Kaleida Health official.

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24. On December 31, 2012, while awaiting Your Honors written decision, I
began my review of more than 2,700 pages of documents contained on a USB flash drive
that I had received from plaintiffs counsel on December 6, 2012, the day my motion to
vacate the Courts TRO was filed and served (hereinafter, referred to as the Chason
documents). I discovered within that mountain of pdf files an explanation for plaintiffs
failure to submit any proof that my communications with Kaleida Health were
purportedly jeopardizing the business relationship between Chason Affinity and Kalieda:
My emails to Kaleida were not causing harm. In fact, my communications appear
to have provided Mark Chason an opportunity to exchange pleasantries with the
folks at Kaleida and express his displeasure with me.
25. The Chason documents include email messages that were exchanged in
response to my August 29th, October 5th, and November 15th communications with
Kaleida Health. (Copies of the Kaleida Health - Chason Affinity emails are attached
hereto as Exhibit B.) None of the emails reflects or implies potential harm or injury to
the Chason Affinity/Kaleida Health business relationship due to my communications:
(a) August 30, 2012. On August 30, 2012, Michael Hughes, Kaleidas Vice
President & Chief Marketing Officer, forwarded the August 29, 2012 comment that I
had addressed to Mr. Kaskie to James Kaskie, Kaleidas President & CEO, and to
Edward F. (Ted) Walsh. Upon information and belief, Mr. Walsh is a former Chair
of the Kaleida Health Board of Directors (a position also held in the past by Gerald S.
Lippes, Esq., the Lippes firms founder and senior partner), and chair of Kaleidas
advisory committee established to find a developer for the Millard Fillmore Gates Circle
Hospital. Other correspondence included in the Chason documents reveal that Ted

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Walsh, in his capacity as President & Chief Operating Officer of the Walsh Insurance
Group, provides insurance-related services to the Chason Affinity companies. Michael
Hughes 8/30/12 email to Mr. Kaskie and Mr. Walsh states the following:
FYI .. Email from the attorney who led the fight to block Bass Pro as well the
move of Childrens. He is also leading the fight against Chason at their
Elmwood & Forest development. [Emphasis added.]
Note: While it is true that I brought litigation on behalf of a group of Buffalo residents
challenging the financial assistance offered to Bass Pro, I never opposed or had any
involvement in the question of whether Childrens Hospital should move from its
Elmwood Village location. I did, however, successfully challenge the City of Buffalos
2003 environmental review for the Childrens Hospital helipad. [See, Price v. Common
Council of City of Buffalo, 773 NYS2d 224 (Sup. Ct., Erie Co.) (Hon. John P. Lane).]
(b) August 31, 2012. On August 31, 2012, Mr. Walsh sent the following email to
Mark Chason:
Mark,
Just a heads up that Arthur Giacalone is stirring the pot. [Emphasis added.]
Ted
(c) September 10, 2012. On September 10, 2012, Mark Chason forwarded the
Walsh email to Jeff Birtch without a message.
(d) October 5, 2012. At 5:18 PM on October 5, 2012, Kaleidas Michael Hughes
forwarded my October 5, 2012 email regarding property code violations to Mark Chason
and Jeff Birtch (with copies to Mr. Kaskie and Mr. Walsh), and added the following
message:
Mark/Jeff We are getting copied on complaints re: your Elmwood project. I
am sure you are aware of Mr. Giacalone, but if not, FYI [Emphasis added.]
Hope all is well.
MIKE

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(e) October 5, 2012. At 5:47 PM on October 5, 2012, Mark Chason sent the
following email message to Kaleidas Michael Hughes and Affinitys Jeff Birtch (with
copies to Mr. Kaskie and Mr. Walsh):
Mike,
Thanks for sending this over. We are discussing Mr. Giacalones actions with
our council [sic], who believe he is way over the line and will take steps to
hopefully curtail this type of nonsense. Of course, if it wasnt for him there
would be a beautiful development on Elmwood. Sorry for this Have a great
weekend! [Emphasis added.]
Mark
(f) October 5, 2012. At 5:48 PM on October 5, 2012, Kaleidas Michael Hughes
immediately emailed the following reply to Mark Chason and Jeff Birtch (with copies to
Mr. Kaskie and Mr. Walsh):
No need to apologize. We are aware of who he is. [Emphasis added.]
(g) October 5, 2012. At 5:56 PM on October 5, 2012, Mark Chason sent the
following email message to Kaleidas Michael Hughes:
Thanks!
26. These communications between the various Kaleida officials and Chason
Affinity reflect a camaraderie that, if anything, appears to be strengthened, not
threatened, in response to my emails. It appears that I provided Chason Affinity, the
developer, and Kaleida Health, the owner of the Gates Circle facilities, an opportunity to
identify a common foe or irritant.
27. It is no wonder that plaintiff and its legal counsel, the Lippes firm, made the
strategic decision not to provide the Court with either the emails exchanged between
Kaleida Health and the Chason Affinity companies, or an affidavit from Mark Chason.
Mr. Chasons claim, that if it wasnt for [Giacalone] Affinitys mixed-use project at

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Elmwood & Forest would be built, confirms my contention that the efforts by the Lippes
firm to enjoin my speech and sanction me reflect plaintiffs desire, fueled by animosity,
to harass and intimidate me, and reduce my ability to effectively represent my clients.
The Memorandum Decision disregards this claim.

I. REQUEST FOR DISQUALIFICATION


28. It is with great sadness and reluctance that I file this application requesting
Your Honor to disqualify yourself in this proceeding. During the decades that I have
appeared in your courtroom, I never have had reason in the past to question the Courts
impartiality or diligence. I am fully aware of the serious nature of this motion. However,
as attorney of record for the six answering defendants, it is my obligation to protect their
interests in this action. Following consultation with my counsel, I have reached the
conclusion that reasons exist for reasonably questioning Your Honors impartiality in this
proceeding.
29. As the Court knows, a judge is required by Section 100.3(E)(1) of the Rules
of the Chief Administrator to disqualify himself or herself in a proceeding in which the
judge's impartiality might reasonably be questioned. [22 NYCRR 1003(E)(1)] Included
among the non-exclusive list of instances where a judges impartiality might reasonably
be questioned is where the judge has a personal bias or prejudice concerning a party.
30. From the facts as I know them, no basis exists for mandatory disqualification
pursuant to Section 14 of the States Judiciary Law (disqualification of judge by reason of
interest or consanguinity).
31. Defendants and I understand that generally a judge is the sole arbiter of
recusal, that recusal is a matter of personal conscience, and that, ultimately, the

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disqualification decision is Your Honors alone. See, In the Matter of Richard W.


Murphy, 82 NY2d 491, 495 (1993); People v. Smith, 63 NY2d 41, 68 (1984) (noting that
recusal is generally "a matter of personal conscience"). With that being said, it is my
expectation that Your Honor fully concurs with the sentiment of our States highest court
that, Judges should strive to avoid even the appearance of partiality, and that the
better practice would be to err on the side of recusal in close cases. Murphy, supra, 82
NY2d at 495.
32. The answering defendants and I ask Your Honor to consider, with an open
mind, whether the circumstances described below could lead the answering defendants in
particular, or the public generally, to reasonably question the Courts impartiality.

A. The January 8, 2013 Decision and Related Proceedings


(i) A judge shall be faithful to the law
[22 NYCRR 100.3(B)(1)]
33. New Yorks appellate courts have consistently characterized preliminary
relief as a drastic remedy that is not routinely granted. The moving party has the
burden of demonstrating, by clear and convincing evidence, a likelihood of success on
the merits, irreparable injury in the absence of injunctive relief, and a balance of equities
in its favor. See, e.g., Eastman Kodak Co. v. Carmosino, 77 AD3d 1434 (4th Dept. 2010).
CPLR Section 6301 expressly provides that a TRO may not be granted unless it appears
that immediate and irreparable injury, loss or damage will result if the preliminary relief
is not granted. CPLR 6301. Furthermore, the Fourth Department has repeatedly held
that conclusory allegations alone are inadequate to support a partys claim that it will
suffer irreparable harm if preliminary relief is not granted. See, e.g., Glazer v. Brown, 55
AD3d 1385 (4th Dept. 2008); Genesis II Hair Replacement Studio v. Vallar, 251 AD2d

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1082 (4th Dept. 1998); Sutton, DeLeeuw, Clark & Darcy v. Beck, 155 AD2d 962 (4th
Dept. 1989).
34. In the brief period that I was allowed to speak in chambers on November 20,
2012, I advised the Court that plaintiffs motion papers failed to allege, much less provide
evidentiary proof, that plaintiff would suffer immediate and irreparable injury, loss or
damage unless I was restrained from communicating with Kaleida Health before the
November 30, 2012 return date. As noted above, Mark Chason and Jeff Birtch, the
purported victim of my communications with Kaleida Health, did not provide an
affidavit in support of plaintiffs application. Nonetheless, a TRO restraining my
communications with Kaleida Health was granted by the Court.
35. My November 27, 2012 affirmation again informed the Court of the absence
of evidentiary proof (or even a conclusory allegation) of irreparable harm or injury if
preliminary relief was not granted. It also provided the Court with appellate case law
holding that the movant for preliminary relief must provide evidentiary proof, not merely
conclusory allegations, in support of its application. [Giacalone Affirmation, paragraph
6(A)] Although plaintiffs reply papers again failed to provide evidence demonstrating
the likelihood of irreparable harm in the absence of a TRO, on November 30, 2012, the
TRO was extended an additional two weeks, that is, to December 14, 2012, at which time
the Court expected to read its decision from the bench.
36. On December 6, 2012, my counsel filed a motion pursuant to an Order to
Show Cause asking Your Honor to vacate the TRO prior to the December 14, 2012 court
proceeding. The Court was again reminded of the Fourth Department precedent holding
that conclusory allegations alone are inadequate to support a partys claim that it will

19

suffer irreparable harm. My counsels supporting affirmation also addressed plaintiffs


failure to establish the likelihood of success on its application, and the Courts lack of
authority to grant a permanent injunction restraining my speech pursuant to RPC Rules
4.4(a) and 3.4(e).

Nonetheless, following oral argument on December 14, 2012, the

Court reserved decision and, once again, continued the TRO. [Attached hereto as
Exhibit C is a copy of the transcript of the November 30, 2012 oral argument by
plaintiffs counsel, Brendan H. Little, Esq., and your deponent, and the December 14,
2012 oral argument by my counsel, Hon. Karen S. Smith, and plaintiffs counsel, Dennis
C. Vacco, Esq., former NYS Attorney General.]
37. Given the Courts disregard, on three occasions, of the substantial burden a
movant is required to meet when requesting a TRO, a reasonable basis exists for
questioning whether Your Honor acted impartially and faithfully applied the law when
restraining my communication with Kaleida Health. [22 NYCRR 100.3(E)(1)]

A. The January 8, 2013 Decision and Related Proceedings


(ii) A judge shall accord every person who has a legal interest in a proceeding,
or that persons lawyer, the right to be heard according to law
[22 NYCRR 100.3(B)(6)]
38. The January 8, 2013 Memorandum Decision concurs with the arguments
asserted by my counsel that the Court lacks the authority under the Rules of Professional
Conduct (more precisely, Rule 3.4(e) regarding fairness to opposing party and counsel,
and Rule 4.4(a) regarding respect for rights of third persons), as well as under Section
130-1.1 of the Rules of the Chief Administrator (awards of costs and sanctions for
frivolous conduct in civil litigation), to grant the relief demanded by plaintiffs counsel:
The court does not disagree

20

[Memorandum Decision, pages 8-9 of 20]


39. Nonetheless, rather than denying plaintiffs application for an injunction that
would bar me from communicating with Kaleida Health, the Memorandum Decision
searches for other possible ways to restrain my speech and identifies a purported source
of authority for barring my communications that had not previously been asserted by
plaintiff, discussed by the parties, or raised by the Court:

The court does not disagree, but shall grant a protective order against certain
conduct nonetheless, within its wide discretion to regulate discovery and the
course of the proceedings before it. The order will issue under CPLR 3103, not
under article 63 on injunctions, and therefore the burdens of proof and the
bases for decision are very different.

[Memorandum Decision, page 9 of 20]


40. Your Honor is quite accurate in describing the bases for the Courts ruling as
very different from the issues addressed by the parties at the November 20th, November
30th and December 14th proceedings before the Court. As noted in the Memorandum
Decision, [v]irtually none of the law relied on in the courts decision came from the
parties. [Memorandum Decision, page 17 of 20] Nonetheless, no steps were taken to
afford plaintiff and defendants counsel an opportunity to be heard on the new legal
theories advanced by the Court prior to entry of the January 8, 2013 ruling.
41. The approach taken by the Court appears to violate a judges obligation to
accord to every person who has a legal interest in a proceeding, or that person's lawyer,
the right to be heard according to law [22 NYCRR 100.3(B)(6)], as well as the due
process clause of the U.S. Constitution. Under such circumstances, Your Honors
impartiality might reasonably be questioned. [22 NYCRR 100.3(E)(1)]

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42. Had my counsel or I been offered an opportunity to be heard on the new legal
theories raised by the Court on its own initiative, strong arguments could have been
raised against issuance of a protective order pursuant to a CPLR provision intended to
prevent abuse of the discovery process, including, without limitation, the following:
(a) The Memorandum Decision is entirely wrong when it identifies the purported
factual underpinning for issuing a protective order pursuant to CPLR 3103:
The information at issue in the present matter [as in Seattle Times v.
Rhinehart] stems from pretrial discovery, i. e. the presence of alleged code
violations at improvements located on plaintiffs property on Elmwood Avenue,
and the state of the improvements in general.
[Memorandum Decision, page 15 of 20] It is undisputed that I obtained copies of the
Citys July 16, 2012 notices of violation, not through the pretrial discovery process, but
from the City of Buffalo inspection bureau. As is set forth in detail at paragraph 11(a)(n) of the Giacalone Affirmation (included in the Appendix), I am the person who
requested inspection of the Affinity properties, commencing the process in February
2012; by letter dated August 2, 2012, I made a request to the City, pursuant to the States
Freedom of Information Law (FOIL), for copies of the notices of violation issued for
the Affinity properties; because the Citys notices of violation are public documents, the
City promptly honored my FOIL request; and, on August 7, 2012, I received the
requested documents from the City. A copy of my February 6, 2012 letter initially
requesting inspection of the Affinity properties, and my August 2, 2012 FOIL request to
the City, were included as part of Exhibit B attached to my November 27, 2012
affirmation. Furthermore, the alleged code violations and the state of the
improvements generally at the Affinity properties are clearly visible to anyone walking
or driving down Elmwood Avenue.

22

(b) Although a trial court is vested with broad discretion in supervising disclosure,
that discretion is not unlimited. Button v. Guererri, 298 AD2d 947 (AD4 2002). Plaintiff
has never claimed that I abused the disclosure process when I communicated with
Kaleida Health and/or the City of Buffalo. Furthermore, in stark contrast to the cases
cited in the Memorandum Decision, the information at issue in the present matter was
not obtained through the discovery process, and does not in any way implicate the
privacy interests of the litigants or third parties. Given the facts in the instant proceeding,
issuance of a protective order pursuant to CPLR 3103 appears to be an abuse of
discretion.
(c) Although the Memorandum Decision claims that the protective order is
exceptionally narrowly tailored, it is, in fact, broad and vague. For example:
(i) It goes far beyond barring me from dissemination of information
obtained in discovery, and prohibits me from all communication with Kaleida
Health concerning the subject matter of this litigation.
(ii) It treats information regarding property code violations at the Affinity
properties as communications concerning the subject matter of this litigation
(Memorandum Decision, page 5 of 20), despite the fact that the issue for the
Court and/or fact finder to determine in this action is whether or not the restrictive
covenants should be extinguished.
(iii) It bars me from communicating directly or indirectly with Kaleida
Health, without providing any guidance as to what the Court considers an
indirect communication.

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(iv) It inexplicably bars both parties counsel from communicating with


Kaleida Health concerning the subject matter of the litigation. [Memorandum
Decision, page 19 of 20] I can think of no reason why Plaintiffs counsel should
be barred from answering Mike Hughes question: Hows that restrictive
covenant lawsuit going?

A. The January 8, 2013 Decision and Related Proceedings


(iii) A judge shall dispose of all judicial matters fairly
[22 NYCRR 100.3(B)(7)]
43. As described above at paragraphs 38 through 41, rather than deny plaintiffs
application following His Honors conclusion that the Court lacked the authority to grant
the requested relief pursuant to RPC Rules 4.4(a) and 3.4(e) and 22 NYCRR Subpart
130-1, the Court issued a protective order pursuant to authority and legal principles not
previously addressed or briefed by the parties WITHOUT providing me or my counsel
and opportunity to be heard. In light of the substantial arguments, factual and legal, set
forth at paragraph 42 above that could have been raised in opposition to issuance of a
protective order pursuant to CPLR 3103, reasonable grounds exist to question whether
plaintiffs application was disposed of fairly, and whether Your Honor acted impartiality
in this proceeding. [22 NYCRR 100.3(B)(7)]
44. There are many other aspects of the Courts 20-page Memorandum Decision
that a reasonable person might conclude reflect a less-than-fair disposition of the
plaintiffs application. One notable example can be found in the conclusory paragraph
that is utilized in the Courts decision in an attempt to characterize my communications
with Kaleida Health as improper and contrary to RPC Rule 3.6 (Trial Publicity):

24


The court determines that Mr. Giacalones emails to Kaleida are
extrajudicial statement[s] that he knew or reasonably should have known
would be disseminated by means of public communication (by email) and will
have a substantial likelihood of materially prejudicing an adjudicative proceeding
in the matter at issue.
[Memorandum Decision, pages 14-15 of 20] This determination is palpably unfair to me
in a variety of ways:
(a) I replied to Mr. Cross contention in his October 11, 2012 cease-and-desist
letter that my August 29, 2012 and October 5, 2012 communications with Kaleida Health
violated the requirements of Rule 3.6, explaining why I believed that that rule was not
applicable, and forwarded a copy of my written reply to Your Honor. Plaintiffs counsel
elected to abandon that argument when bringing the November 20, 2012 OSC/TRO. It is
unfair for the Court to rely upon that provision without allowing me or my counsel to be
heard on that issue.
(b) Characterization of my emails to Kaleida Health as extrajudicial statements
pertaining to plaintiffs action to extinguish the restrictive covenants is an enormous and
unseemly stretch. My October 5, 2012 and November 15, 2012 emails do not refer in
any fashion to the pending litigation. And the only reference to this lawsuit in my August
29, 2012 email to Kaleidas President/CEO was the following neutral statement:
Unable to convince the adjoining owners to approve its project, Affinity is now in court
seeking to extinguish the restrictive covenants that protect its neighbors.
(c) The Memorandum Decision fails to explain its parenthetical observation that
emails directed to Kaleida Health constitute dissemination by means of public
communication.

25

(d) The most unfair aspect of Your Honors determination that I violated RPC
Rule 3.6 by communicating with Kaleida Health is the assertion that I knew or should
have known that the communication will have a substantial likelihood of materially
prejudicing an adjudicative proceeding in this matter. I know of no logical connection
between the content of my emails and an adjudicative proceeding in this matter.
Moreover, plaintiffs motion papers do not allege that there is a substantial likelihood that
Affinity will be prejudiced in this proceeding due to my emails, and provide no
evidentiary proof that Affinity has been prejudiced, or is likely to be prejudiced, in this
lawsuit as a result of my emails to Kaleida Health. As the emails attached hereto as
Exhibit B reflect, my communications have not adversely impacted plaintiff.
45. In light of the above, reasonable grounds exist to question whether plaintiffs
application was disposed of fairly, [22 NYCRR 100.3(B)(7)] and whether the Court acted
impartially in this proceeding. [22 NYCRR 100.3(E)(1)]

A. The January 8, 2013 Decision and Related Proceedings


(iv) A judge shall perform judicial duties without bias
or prejudice against or in favor of any person
[22 NYCRR 100.3(B)(4)]
46. The stark contrast between the Courts treatment of a reckless comment made
by Dennis C. Vacco, Esq., during oral argument on December 14, 2012, and the
treatment of my sworn statements in the Giacalone Affirmation expressing the purpose of
my communications with Kaleida Health, provides a reasonable basis to question whether
the Court performed its judicial duties in this proceeding with either a bias in favor of Mr.
Vacco, his law firm and/or his clients, and/or a bias or prejudice against me and/or the
answering defendants.

26

47. On December 14, 2012, following my counsels oral argument in support of


my motion to vacate the TRO, Mr. Vacco accused me of having written scurrilous,
untrue, no factual-based things about his clients. [See 12/14/12 Transcript, page 16,
lines 14-23, attached hereto as part of Exhibit C.] To characterize the text of my August
29, 2012 email to Kaleida Health (printed at paragraph 8 above) as scurrilous is
unbridled hyperbole, at best. More importantly, to assert that my words were untrue and
lacking factual bases is simply false. Had any of my statements been deemed untrue by
plaintiff, Mr. Vaccos colleague, Mr. Cross, certainly would have included such
allegations in his affirmations. As the Court acknowledges in its Memorandum Decision
(directly under the heading Restraint of Libel), no such accusations were made:
Restraint of Libel
Although plaintiffs counsel at oral argument suggested that Mr.
Giacalones email contained falsehoods about plaintiffs affiliates, there i[s]
nothing in plaintiffs papers pointing specifically to any false statements.
[Memorandum Decision, page 9 of 20]
48. Rather than simply ignoring the former State Attorney Generals unsupported
accusation, or, perhaps, chastising plaintiffs counsel for making an assertion at court that
lacks any factual bases, Your Honor uses Mr. Vaccos reckless assertion as a springboard
to discuss New York case law concerning when injunctions may issue to restrain libel.
By doing so, the Court implies that a foundation exists for considering my written
communications libelous, despite the fact that the record before the Court makes no such
claim. Following its review of the law, the Court states:
. .. In any event, in the courts view, Mr. Giacalone shared his opinions about the
lawsuit and about Chason Affinitys abilities as a developer, clothed in the factual
background of the lawsuit. The parties have not briefed this issue, the court

27

assumes, because opinions generally are not subject to a libel action [cite
omitted]. Thus, the case does not fall directly under such case law
[Memorandum Decision, page 10 of 20]
49. Contrary to the Courts view, I did not share [my] opinions about the
lawsuit. I merely stated a simple fact: Unable to convince the adjoining owners to
approve its project, Affinity is now in court seeking to extinguish the restrictive covenants
that protect its neighbors. Furthermore, the reason the parties did not brief the issue of
libel is because my statements were not false, and plaintiffs court papers do not accuse
me of libel. Not only does this case not fall directly under the cases that allow
injunctive relief to restrain libel, it does not fall indirectly under such precedent.
50. While the Court dignifies Mr. Vaccos baseless accusation at oral argument
by considering whether my speech could be restrained as libel, the Memorandum
Decision refuses to grant my sworn affirmation any credence:
As noted, Mr. Giacalone has attempted to state other reasons for his
communications with Kaleida besides the intent to materially prejudice the
outcome of the instant proceeding. [T]he court is concerned that, despite his
argument otherwise, Mr. Giacalone is seeking to obtain an advantage in the
litigation by emailing the President and CEO of Kaleida. Although Mr.
Giacalone asserts that he is merely interested in ensuring that his clients
neighbors property is up to code (see Giacalone Affirm, paragraph 11), there is
no evidence that, prior to commencement of this hard-fought litigation, Mr.
Giacalone sent any communications to Kaleida concerning his efforts to correct
code violations at the properties at issue Further, Chason Affinity was
awarded chosen developer status in August 2012 and it was not until that event,
that Mr. Giacalone emailed Kaleida about the code violations
[Memorandum Decision, pages 17-18 of 20]
51. Rather than approaching my sworn statements with an open and impartial
mind, the Court assumes the role of an adversary, striving desperately to disparage my
words and question my integrity:

28

(a) Despite the absence of factual support for its assertion, the Court insists that
the purpose of my emails to Kaleida is to materially prejudice the outcome of this
lawsuit. I do not understand what prejudice the Court is referring to, and plaintiffs
motion papers contain no suggestion on how Affinity might be harmed in this proceeding
due to my emails. As noted above, the emails exchanged between Kaleida Health and
Mark Chason (which plaintiff chose not to provide to the Court) do not reflect any
deterioration in their business relationship as a result of my emails. [See paragraph 25
above; the emails attached hereto as Exhibit B.]
(b) The Court does not explain the factual bases for its concern that I emailed
Kaleidas President/CEO to gain an advantage in this litigation. The concern, as with
most biases, appears to be founded on something other than fact. According to plaintiff, I
emailed Mr. Kaskie, not to gain an advantage in this lawsuit, but to destroy the business
relationship between Chason Affinity and Kaleida. The two goals are not synonymous.
(c) There are two logical reasons why I did not email Kaleida regarding the
Affinity property code violations prior to commencement of this lawsuit, or prior to the
mid-August 2012 announcement of Chason Affinitys selection as winner of the Kaleida
competition. First, I was unaware of any relationship between Chason Affinity and
Kaleida until August 2012, and, therefore, I had no reason to think that Kaleida might be
in a position to give Affinity a nudge to correct the violations. Second, it was not until
July 16, 2012 that the City issued its Notices of Violation for Affinitys Elmwood
Avenue properties, and not until post-August 16, 2012 that it became clear to me that it
would take more than a request from the City inspection office to motivate plaintiff to
correct the code violations.

29

52. The Court demonstrates a determination to find a way any way, apparentlyto enjoin my communications with Kaleida, despite the absence of evidentiary proof to
support such relief, when the Memorandum Decision rejects my stated motivation and
bases its issuance of a protective order on what it refers to as the elephant in the
room:
... Although Mr. Giacalone argues that he seeks only as a long-time activist to
communicate his opinions on development in a City in which he used to live and
work and in which his clients live, such statements ignore the elephant in the
room That Mr. Giacalones intent is to continue to push Kaleida to withdraw
from the Gates Circle deal unless plaintiff settles or resolves the instant
litigation [Emphasis added.]
[Memorandum Decision, page 18 of 20]
53. For the Court to make the above assertion, when plaintiffs counsel has not
stooped to utter it, is, to say the least, troubling. For reasons about which I can only
speculate (and, therefore, I will not express), Your Honor attributes malevolent motives
to me that have never crossed my mind. And, if they had crossed my mind, they would
have been instantly rejected as beneath the dignity of an attorney and the judicial system.
54. In light of the above, a reasonable basis exists to question whether the Court
performed its judicial duties in this proceeding free of bias, either in favor of Mr. Vacco,
the Lippes firm, and his clients, or against me and my clients. [22 NYCRR 100.3(B)(4)]

CONCLUSION
55. This Courts handling of plaintiffs request for injunctive relief has left the
answering defendants ordinary citizens who approached the pending lawsuit with hopes
that the Court would objectively and fairly evaluate the law and the facts with a sense
of disbelief and dread. For all the reasons discussed above, there is no longer an

30

expectation, by me or my clients, that the Court will handle its duties in this proceeding
impartially.
56. With a disclosure deadline fast approaching, discovery matters exist that
require judicial intervention. A host of trial-related issues will need attention as this year
progresses. Given prior events in this lawsuit, there is reason to fear that it will be bias,
rather than fairness and impartiality, that will determine future decisions if Your Honor
does not disqualify himself in this proceeding.
57. The answering defendants and I ask Your Honor to conclude, for the reasons
discussed above, that the Courts impartiality might reasonably be questioned in this
proceeding, and that disqualification is the proper step to take.

DATED: East Aurora, New York


January 18, 2013
_____________________________
Arthur J. Giacalone
Attorney for Defendants Bencinich, Davis,
Gathers, Genovese, Girage and Wustner,
140 Knox Road
East Aurora, New York 14052
(716) 687-1902

31