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FILED: ONONDAGA COUNTY CLERK 10/04/2016 04:06 PM

NYSCEF DOC. NO. 11

INDEX NO. 2016EF3970


RECEIVED NYSCEF: 10/04/2016

STATE OF NEW YORK


SUPREME COURT

COUNTY OF ONONDAGA

COR DEVELOPMENT COMPANY, LLC,


Plaintiff,

ATTORNEY AFFIRMATION
OF JOHN A. SICKINGER
Index No.: 2016EF3970

v.

CITY OF SYRACUSE,
Defendant.

STATE OF NEW YORK


)
COUNTY OF ONONDAGA ) ss:
JOHN A. SICKINGER, being duly sworn, deposes and states:
1.

I am an attorney at law duly licensed to practice in the Courts of the State of New

York, and am Senior Assistant Corporation Counsel for the City of Syracuse. I am lead counsel and
attorney of record for the City of Syracuse in not only the above-captioned litigation, but also in a
prior related action between the parties (City of Syracuse v. COR Development, et al., Onondaga
County Supreme Court, Index No. 2015EF5077), and as such, I am familiar with the facts and
circumstances surrounding this matter.
2.

I submit this Affirmation in support of the Defendants motion seeking dismissal of

the Plaintiffs Verified Complaint. All statements contained herein are true to the best of my
knowledge, and are based upon personal knowledge, a review of documents, and/or discussions and
communications with individuals possessing knowledge of relevant facts.

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THE COMPLAINT IS A FRIVOLOUS ATTEMPT BY COR TO DISTRACT FROM THE


ARREST OF ITS PRESIDENT AND GENERAL COUNSEL FOR ALLEGEDLY BRIBING A
HIGH-RANKING STATE OFFICIAL

3.

CORs Verified Complaint herein,1filed just four business days before the Federal

Bureau of Investigations (FBI) arrest of CORs President, Steven Aiello, and General Counsel,
Joseph Gerardi, for allegedly (1) bribing a high-ranking New York State official to obtain State
contracts, (2) lying to FBI agents about those bribes, and (3) committing wire fraud, is likely
nothing more than an attempt by COR and the two accused to head-off and distract from the
overwhelming negative publicity generated by their arrest. A copy of the voluminous criminal
complaint filed against Aiello and Gerardi in the United States District Court for the Southern
District of New York is attached hereto as EXHIBIT A.
4.

The involvement of COR, Aiello and Gerardi at the center of a federal corruption

investigation has been widely known for months, and has been publicly reported in the media.
Their payment of then-Whiteman Osterman and Hanna2 (WOH) employee Todd Howewhich
according to the U.S. Attorneys criminal complaint, is alleged to have been made for the purpose of
funneling bribe money to the State officialhas also been reported on repeatedly. COR drew
particular attention to their relationship with Howe by initiating legal action against him to recover
their alleged bribe money after it was publicly revealed that Howe was cooperating with the FBI in

The City contends that the Plaintiffs Complaint is not properly verified as the attorney-verification
provision of CPLR 3020(d)(3)is not available to the Plaintiff as they have counsel representing them in
this case whose place of business is located in the same county as that of the Plaintiff.
2

The City questions whether Whiteman, Osterman and Hanna has a conflict of interest in their
representation of COR in this action since the U.S. Attorneys criminal complaint indicates that Gerardi
stated to federal investigators that WOH (referred to in the criminal complaint as the Albany law firm)
aided COR in drafting a request for proposal for a Syracuse development project (see criminal complaint
pg. 79). That project is one that is implicated by the U.S. Attorney in bribery and bid rigging. However,
the City leaves any inquiry into a possible WOH conflict of interest to the sound discretion of the Court if
it deems it just.

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its investigation of Aiello, Gerardi and others. See COR Development Company, LLC v. Todd R.
Howe, Onondaga County Supreme Court, Index No. 2016EF3394.
5.

Upon information and belief, shortly before filing this suit, Aiello and Gerardi knew

that their arrest was imminent, as they and their counsel met with federal prosecutors and FBI
agents regarding their involvement in the alleged corruption and bribery, and were advised by them
that the government did not find their explanations and statements to be true, and they were warned
that lying to federal agents is a crime. See Criminal Complaint, pg. 78.
6.

While it is understandable that COR would want to distract the publics attention

away from Aiello and Gerardis alleged commission of multiple federal felonies, and/or the illegal
business practices that COR allegedly employed, the City respectfully submits that filing baseless
and meritless lawsuits such as this are wholly improper and a waste of the Courts time and the
resources of the taxpayers of the City of Syracuse.
7.

This background information pertaining to the federal criminal charges filed against

Aiello and Gerardi is essential in understanding why COR would choose to file what the City
contends is a meritless suit, as it is based on a legal argument that the Appellate Division already
rejected earlier this year when COR raised it in that Court. As noted below, COR neglected to
mention this adverse rulingwhich fatally undermines this suitin their Complaint.
THE CITYS PENDING APPEAL MAKES CORs FILING OF THIS LAWSUIT FRIVOLOUS
8.

The pending appeal of this Courts January 25, 2016 Order dismissing the Citys

rescission claimwhich sought to rescind the Inner Harbor disposition agreement and cancel the
deeds to the property that was transferred to CORis currently on appeal, and will be heard by the
New York State Supreme Court, Appellate Division, Fourth Department during the Courts January
2017 Term (Fourth Department Docket No.: CA 16-00543).
3

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9.

The appeal of the dismissal largely centers on the lower Courts lack of inquiry into

whether the sworn statements of Steven Aiello pertaining to CORs alleged improvement of the
land to a point where a return of the property would be impractical, were actually true. The City has
asserted in its appeal that without any evidence in the record to support Aiellos contention, and, as
the Court did not hold a hearing where CORs claims could be examined, Aiellos unsupported
contention was accepted as true. This issueand the Citys contention that Aiello lied to City
officials to obtain the Inner Harbor landnow takes on additional importance and relevance in light
of the United States Attorneys allegation that Aiello and Gerardi lied to federal agents.
10.

After the City perfected its appeal, on or about April 5, 2016, COR, through its

counsel, filed a motion in the Fourth Department seeking to dismiss the Citys appeal as moot.
11.

As noted above, in their instant suit, COR conveniently forgets to make this Court

aware that their motion to dismiss the appeal as moot because of a subsequent judgment, was
denied. Attached hereto and made a part hereof as EXHIBIT B is the May 18, 2016 Decision
and Order of the New York State Supreme Court, Appellate Division, Fourth Department.
12.

In this suit, COR attempts to pretend that the Fourth Department has not already

considered their contention that the Citys pending appeal is moot, and rejected it.
13.

Since the Appellate Division denied CORs motion, the Citys appeal is still

pending, and the issue of whether COR must return to the City the Inner Harbor land it has already
acquired, and whether it may acquire any further City land, has not been finally determined.
Accordingly, CORs claims herein are not ripe.
14.

The City of Syracuse currently has no obligation to perform under the Inner Harbor

disposition agreement as the very question of whether it is even a legally binding contract in light of

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the Citys contention that it was procured by Aiello, Gerardi and COR via false statements and
fraud, is awaiting determination by the Appellate Division.
CORs CONTINUED EXISTENCE IS NOT GUARANTEED

15.

The Plaintiffs continued existence as a company and legal entityand its ability to

develop the Inner Harbor propertyis uncertain in light of, among other things, its two primary
officers facing the prospect of potentially lengthy federal prison sentences. COR itself faces the
possibility of forfeiting profits from any development projects that are found to have been procured
through bribery of New York State officials. COR also faces the prospect of having assets seized as
part of the criminal proceeding against Aiello and Gerardi3, and may also face steep fines as a
penalty. Accordingly, COR may not be in existence to transfer the land to, or may be physically or
financially unable to accept the property.4
16.

Upon information and belief, the financial health of COR and its Inner Harbor

development project was questionable even before Aiello and Gerardis arrest. Notably, as part of
the closing notice Gerardi sent to the City on August 24, 2016 (Doc. No. 4; attached to Plaintiffs
Verified Complaint as Exhibit B) on behalf of COR, he attaches a loan approval letter from
Northwest Bank. The letter specifies the terms of the financing COR was trying to obtain to pay for
the development of Parcel A-2, the land it seeks to acquire through this lawsuit. Notably, to obtain
a loan, which contains a significant interest-only payment time period at the beginning of the loan,
3

See Gov. Cuomo to 'set aside' donations from COR in case feds seize them Syracuse.com,
September 27, 2016. Available at:
http://www.syracuse.com/state/index.ssf/2016/09/gov_cuomo_to_set_aside_donations_from_cor_in_case
_feds_seize_them.html#incart_river_index_topics
4

See Will bribery charges derail Cor's work? Syracuse.com, September 30, 2016. Available at:
http://www.syracuse.com/businessnews/index.ssf/2016/09/will_bribery_charges_derail_cors_work_status_of_4_key_syracuse_projects.html
#incart_m-rpt-1

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COR was required to pledge the personal guarantees of Aiello, Gerardi, and the two other COR
principals, Jeffrey Aiello and Paul Joynt. The fact that the COR principals were required to make
personal guarantees that they would repay the loan speaks volumes to the financial health of COR,
or more likely, its lack of financial health. (See Northwest Bank letter to COR Director of Finance
Anthony Pugliese dated August 18, 2016, pg.4included in Exhibit B to Plaintiffs Complaint).
17.

The City respectfully submits that it would be unjust and a waste of valuable

resources to force the taxpayers of the City of Syracuse to transfer valuable land that it owns to a
company whose continued existence is not clear. Moreover, sale of the property in question may
ultimately be impossible if its two most involved owners, Aiello and Gerardi, are incarcerated.
CORs NOTICE OF PENDENCY

18.

Simultaneous to the filing of this lawsuit, COR placed a Notice of Pendency on the

parcel it seeks to obtain from the City (Doc. No. 6). CORs filing of this Notice was unnecessary as
the issue of the right of possession and ownership of the property is not yet finally resolved.
19.

The filing of the notice by COR is ironic given the colorful claims it made in the

prior action between the parties, wherein COR alleged that a Notice of Pendency was improper and
only served to hurt the economic well-being of the community.
20.

Accordingly, if CORs wishes to continue its Notice of Pendency, the City

respectfully submits COR should be required to post an undertaking pursuant to CPLR 6515.
21.

For all the foregoing reasons, the City of Syracuse respectfully requests that the

Court dismiss CORs Verified Complaint in its entirety and with prejudice, and grant the City such
other and further relief it deems just and proper.

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