FILED: NIAGARA COUNTY CLERK 04/18/2023 12:50 PM INDEX NO.

E179700/2023
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/18/2023

STATE OF NEW YORK

SUPREME COURT: COUNTY OF NIAGARA
_________________________________________________________

BLAKE LEMOI,
KATHRYN FOGLE,
GINA PASCERI,
JOSEPH KIBLER,

Petitioners,
VERIFIED PETITION

Index No. ___________

For a Judgment Pursuant to Article 78 of the

New York Civil Practice Law and Rules

-against-

CITY OF LOCKPORT,
MICHELLE ROMAN, Mayor,
PAUL M. BEAKMAN, JR., Council President,
LUKE D. KANTOR, Council Member,
MARK S. DEVINE, Council Member,
MARGARET LUPO, Council Member,
LISA SWANSON-GELLERSON, Council Member,
LOCKPORT PROFESSIONAL FIREFIGHTERS IAFF LOCAL 963,

Respondents.
______________________________________________________________

Petitioners, BLAKE LEMOI, KATHRYN FOGLE, GINA PASCERI,

JOSEPH KIBLER, by and through their attorney James Ostrowski as and for their

Verified Petition seeking relief pursuant to Article 78 of the New York Civil

Practice Law and Rules, respectfully allege:

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INTRODUCTION

1. This Article 78 proceeding arises from the failure of the City of Lockport

("City") and other respondents to meet their "good governance" obligations

with respects to meetings held on December 19, 2022.

2. The City of Lockport ("City") and other respondents failed to follow proper

procedure for calling a special meeting on December 19, 2022, pursuant to

§51 of the City of Lockport Charter.

3. The City failed to properly notify the public of its December 19, 2022,

meeting in violation of the City Charter and New York State's Public

Officers Law.

4. The City violated the City Charter and New York State's Open

Meetings Law by failing to follow proper procedures to conduct an

executive session and had no basis in law for an executive session.

5. No tie vote existed for the Mayor to cast the tie breaking vote.

6. The City of Lockport Code of Ethics prohibited Alderman Mark Devine from

voting on Resolution 121922.2

PARTIES

7. Petitioners, BLAKE LEMOI, KATHRYN FOGLE, GINA PASCERI,

JOSEPH KIBLER, are residents and taxpayers in the City of Lockport, New

York.

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8. KATHRYN FOGLE and GINA PASCERI were members of the City of

Lockport Council on December 19, 2022. GINA PASCERI has since

resigned her office.

9. Respondent, City of Lockport, is a municipal corporation organized

pursuant to the laws of the State of New York with its principal office

located at One Locks Plaza, Lockport, New York 14094, and it is a "public

body" as that term is defined in Public Officers Law §102(2).

10. MICHELLE ROMAN is the mayor of the City of Lockport and

participated in the meeting of December 19, 2022

11. PAUL M. BEAKMAN, JR., is the Council President of the City of

Lockport and participated in the meeting on December 19, 2022.

12. LUKE D. KANTOR, MARK S. DEVINE, MARGARET LUPO,

and LISA SWANSON-GELLERSON, are Council Members of the

City of Lockport and are joined herein as possibly necessary parties.

13. MARGARET LUPO, and LISA SWANSON-GELLERSON were

not on the Council on December 19, 2022 and are added here only

as possibly necessary parties.

14.Lockport Professional Firefighters IAFF Local 963 was affected by

the resolution passed on December 19, 2022 and is joined herein as

possibly necessary party.

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VENUE

15. Pursuant to CPLR §506(b), Niagara County is designated as the

venue for this proceeding because it is the county where Respondent,

City of Lockport, took the actions in which the Petitioners complains

in this Verified Petition.

REQUIREMENTS OF THE CITY OF LOCKPORT CHARTER FOR

SPECIAL MEETINGS

16. Upon information and belief, §51 of the City Charter states that

"the Mayor, or any three Alderman, may call special meetings, by

notice in writing, to be signed by him or them and filed with the

City Clerk, which shall be served personally upon the other

members of the Common Council or be left at their several

residences or usual places of business."

REQUIREMENTS OF PUBLIC NOTICE

17.Upon information and belief, Public Officers Law §104 (1) states

that "Public notice of the time and place of the meeting scheduled at

least one week prior thereto shall be given or electronically

transmitted to the news media and shall be conspicuously posted in

or more designated public locations at least seventy-two hours

before such meeting.

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18.Upon information and belief, Public Officers Law §104 (6) states

that "When a public body has the ability to do so, notice of the time

and place of a meeting in accordance with subdivision one or two of

this section, shall also be conspicuously posted on the public body's

internet website.

REQUIREMENTS OF OPEN MEETINGS AND

EXECUTIVE SESSIONS

19. Upon information and belief, §52 of the City of Lockport Charter states

that: "The sittings of the Common Council shall be public, except when the

public interest requires secrecy. Minutes of its proceedings shall be kept by

the Clerk, and the same shall at all times be open to the public."

20. Upon information and belief, when the New York State Legislature enacted

Article VII of the Public Officers Law, also known as the Open Meetings

Law, it issued the following legislation declaration:

It is essential to the maintenance of a democratic society that the

public Business be performed in an open and public manner and that
the Citizens of this state be fully aware of and able to observe the
performance of public officials and attend and listen to the
deliberations and decisions that go into the making of public policy.
The People must be able to remain informed if they are to retain
control over those who are their public servants. It is the only climate
under which the commonwealth will prosper and enable the
governmental process to operate for the benefit of those who created
it. Public Officers Law §100.

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21.Upon information and belief, the Open Meetings Law applies to

any "meeting" that falls within the following definition: "the

official convening of a public body for the purpose of conducting

public business... " Public Officers Law §102(1).

22.Upon information and belief, the Open Meetings law applies to any

"public body" which is defined as "any entity, for which a quorum is

required in order to conduct public business and which consists of

two or more members, performing a governmental function for the

state or for an agency or department thereof... or committee or

subcommittee or other similar body consisting of members of such

public body or an entity created or appointed to perform a necessary

function in the decision-making process." Public Officers Law

§102(2).

23.Upon information and belief, Public Officers Law §103 (1) requires

every meeting of a public body shall be open to the general public,

except that an executive session of such body may be called and

business transacted thereat in accordance with section ninety-five of

this article.

24.Upon information and belief, Public Officers Law§105 (1) states

that upon a majority vote of its total membership, taken in an

open meeting pursuant to a motion identifying the general area or

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areas of the subject or subjects to be considered, a public body

may conduct an executive session for the below enumerated

purposes only, provided, however, that no action by formal vote

shall be taken to appropriate public moneys:

a. Matters which will imperil the public safety if disclosed;

b. Any matter which may disclose the identity of a law enforcement

agent or informer;

c. Information relating to current or future investigation or

prosecution of a criminal offense which would imperil effective law

enforcement if disclosed;

d. Discussions regarding proposed, pending or current litigation;

e. Collective negotiations pursuant to article fourteen of the civil

service law;

f. The medical, financial, credit or employment history of a

particular person or corporation, or matters leading to the

appointment, employment, promotion, demotion, discipline,

suspension, dismissal or removal of a particular person or corporation;

g. The preparation, grading or administration of examinations;

h. The proposed acquisition, sale or lease of real property or the

proposed acquisition of securities, or the sale or exchange of securities

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held by such public body, but only when the publicity would

substantially affect the value thereof.

VOTES IN COUNCIL; MAYOR TO PRESIDE

25.Upon information and belief, §53 of the City of Lockport Charter

states: "In the proceedings of the Common Council, each

Alderman shall have one vote. The Mayor may, when present,

preside at all meetings of the Common Council, and shall have a

casting vote when the votes of the other members are tied."

QUORUM; MAJORITY VOTE

26. Upon information and belief, §54 of the City of Lockport Charter

states: A Majority of the Common Council shall be a quorum for

the transaction of business, but no tax or assessment shall be

ordered, or resolution authorizing the appropriation, expenditure or

payment of money, or ordinance be passed or adopted, except by a

concurring vote of a majority of all the members of the Common

Council in office, which vote shall be by yeas and nays, and a

record thereof be entered at large in the minutes."

VOTES BY "YEAS" AND “NAYS"

27.Upon information and belief, §55 of the City of Lockport Charter

states: "Upon the demand of any member thereof, the vote upon

any resolution or question shall be taken by the yeas and nays of

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all the members present, and a record thereof be entered at large in

the minutes."

CORPORATION COUNSEL; DUTIES

28.Upon information and belief, §80 of the City of Lockport Charter

states: "The Corporation Counsel of said city shall prosecute and

defend all actions brought by or against said city, and render such

other professional services connected with the affairs of said city as

may be require of him by law or by the Common Council."

29.Upon information and belief, Rule 1.7 of22 NYCRR 1200 states that

a lawyer shall not represent a client in a reasonable lawyer would

conclude that there is a significant risk that the lawyer's professional

judgment on behalf of a client will be adversely affected by the

lawyer's own financial, business, property or personal interests.

STANDING

30.Upon information and belief, under Open Meetings Law, any

aggrieved person shall have standing to enforce its provisions by the

commencement of an Article 78 Proceeding, or an action for

declaratory judgment and injunctive relief. Public Officers Law

§107(1).

31.The Petitioners are residents and taxpayers residing in the City of Lockport.

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RELEVANT FACTUAL BACKGROUND

Improper Meeting Notice

32.The Mayor held an illegal executive session meeting on

December 19, 2022, under the guise of a "personnel meeting" to

vote on a highly controversial matter that would have a profound

financial impact on the city for future generations.

33.Since the City of Lockport's inception it has held "Committee of the

Whole Meetings (also know more commonly as "Work Sessions")

on the alternate weeks of the regularly scheduled Common Council

meetings to allow the Common Council members the opportunity to

gather vital information and to ask question of department heads and

staff members regarding agenda items prior to voting. Mayor Roman

unilaterally and arbitrarily canceled all work sessions leaving the

Common Council in the dark.

34.Upon information and belief, without the benefit of a work session

the Common Council has been forced to discuss and deliberate

agenda items on the same night as the formal Common Council

meeting many times with little or no information about the agenda

items.

35.Upon information and belief, the Mayor has further frustrated the

Common Council's ability to govern by deliberately failing to

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follow the City Charter and the New York State Public Officers

Law regarding advance notices for meetings.

36.Upon information and belief, the Mayor has further frustrated the

Common Council's ability to govern by failing to conduct

meetings in public.

37. On December 19, 2022, the Common Council and Mayor illegally

voted on a Resolution 121922.2 regarding the resumption of

ambulance service by the City of Lockport Fire Department.

38.Upon information and belief, the vote on the Resolution No

121922.2 was the product of a Personnel Meeting improperly held in

executive session for several hours.

39.Upon information and belief, no notice was ever given in writing

and served upon the Common Council Members for the

December 19, 2022, Common Council meeting to vote on

Resolution No. 121922.2.

40.Upon information and belief, no public notice was provided in

accordance with the New York State Public Officers Law giving the

time and place of the meeting at least one week prior thereto and

conspicuously posted in one or more designated public locations at

least 72 hours before the December 19, 2022, meeting and no notice

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of the December 19, 2022, meeting was posted on the City

ofLockport's website.

41.Upon information and belief, sometime before December 19, 2022,

the Mayor called for a Personnel Meeting.

Meetings to be held in Public

42.Upon information and belief, in direct contravention of Public Officers Law

§103 and §105 and §52 of the City of Lockport Charter the Personnel

Meeting held on December 19, 2022, was not held in public, no basis was

ever given to go into executive session, and no vote was taken to go into

executive session.

43. Upon information and belief, in attendance at the December 19,

2022, Personnel Meeting were Mayor Michelle Roman, Corporation

Counsel Laura Miskell Benedict, Deputy Corporation Counsel Jason

Cafarella, City Clerk Sarah Lanzo, Mary Pat Filbert, Fire Chief Luca

Quagliano, Firefighter Union President Thomas Cinelli and

Alderpersons, Kristin Barnard, Paul Beakman, Mark DeVine,

Kathryn Fogle, Luke Kantor and Gina Pasceri. Ben Joe, the local

reporter for the Union Sun and Journal was asked to leave the

Personnel Committee Meeting.

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44.Upon information and belief, there was absolutely no basis to enter

into executive session at the Personnel Meeting on December 19,

2022.

45.Upon information and belief, the Open Meetings Law allows

an executive session to discuss proposed, pending, or current

litigation.

46.The sole basis for the exception to the Open Meeting Law

requirement is to allow the City to discuss the proposed,

pending or current litigation outside the presence of its

adversary.

47.Once the adversary is invited into an executive session the sole

basis for the secrecy is lost and the exception no longer applies.

48.The Fire Union President had no business attending a

confidential executive session.

Resolution 121922.2 was not properly adopted

49.Upon information and belief, at the conclusion of the December

19, 2022, Personnel Meeting that was held in executive session

Mayor Michelle Roman, Council President Paul Beakman and

Corporation Counsel immediately convened a Common Council

meeting to vote on Resolution 121922.2.

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50. The resolution voted on established that the Lockport Fire

Department will take steps to resume ambulance services, make

operational two ambulances in its possession; and that the City of

Lockport will apply for a Certificate of Need for Ambulance

Service and negotiate for reimbursement from insurance

companies. See, Exhibit “A”.

51.Upon information and belief, the vote on Resolution No. 121922.2

was as follows: Alderman Paul Beakman, Mark DeVine and Luke

Cantor voted in favor. Alderpersons Christin Barnard and Gina

Pasceri vote against the resolution and Alderperson Kathryn Fogle

abstained. The Mayor stated that she was going to break the tie and

voted in favor of the resolution.

52. Upon information and belief, the New York Conference of Mayors

Handbook states that abstentions and absences are neither positive

nor negative votes.

53.Therefore, no tie existed pursuant to City of Lockport Charter §53

for the Mayor to cast a tie breaking vote.

§§18-4 and 18-7 of the City of Lockport Code of Ethics Prohibited Alderman

Devine from Voting

54.Upon information and belief, §18-7 of the City of Lockport Charter

("Code of Ethics") prohibits a municipal officer from participating in

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any decision or taking any action with respect to any matter

requiring the exercise of discretion including discussing the matter

and voting on it when, he knows or has reason to know that the

action could confer a direct or indirect financial or material benefit

on a relative.

55. Upon information and belief, Alderman Mark Devine is a duly

elected municipal officer and his son is a member of the City of

Lockport Fire Department that would benefit both financially and

materially with the adoption of Resolution 121922.2.

56. Upon information and belief, §18-4 of the City of Lockport Charter

("Code of Ethics") prohibits a municipal officer from using his or

her municipal position or official powers to secure a financial or

material benefit for a relative.

57. Upon information and belief, Alderman Mark Devine is a duly elected

municipal officer and by failing to abstain or recuse himself from voting on

Resolution 121922.2 he used his position to secure a financial and material

benefit for his son who is a member of the City of Lockport Fire

Department.

58. No prior petition or request for the relief requested herein had been filed.

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AS AND FOR A FIRST CAUSE OF ACTION

59. Upon information and belief, on December 19, 2022, the City of

Lockport held a Personnel Committee meeting and a subsequent

special meeting of the Common Counsel.

60. Upon information and belief, the Mayor, or any three Alderman,

failed to call special meeting, by notice in writing, signed by him or

them, failed to file the same with the City Clerk, and failed to

personally serve such notice upon the other members of the

Common Council or leave it at their several residences or usual

places of business.

61.Upon information and belief, the City failed to follow New York

State Public Officers Law with respect to proper notice for a public

meeting giving the time and place of the meeting at least one week

prior thereto and conspicuously posted in one or more designated

public locations at least 72 hours before the December 19, 2022,

meeting and no notice of the December 19, 2022, meeting was

posted on the City ofLockport's website.

62.Upon information and belief, the City failed to properly notice the personnel

meeting.

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AS FOR A SECOND CAUSE OF ACTION

63. Upon information and belief, in direct contravention of Public

Officers Law §103 and §105 and §52 of the City of Lockport

Charter, the Personnel Meeting held on December 19, 2022, was not

held in public, no basis was ever given to go into executive session,

and no vote was taken to go into executive session.

AS AND FOR A THIRD CAUSE OF ACTION

64.Upon information and belief, the vote on Resolution No. 121922.2

was as follows: Alderman Paul Beakman, Mark DeVine and Luke

Cantor voted in favor. Alderpersons Christin Barnard and Gina

Pasceri vote against the resolution and Alderperson Kathryn Fogle

abstained. The Mayor stated that she was going to break the tie and

voted in favor of the resolution.

65. Upon information and belief, abstentions and absences are neither

positive nor negative votes.

66. Therefore, no tie existed pursuant to City of Lockport Charter §53

for the Mayor to cast a tie breaking vote and Resolution No.

121922.2 did not pass by a majority of the votes cast on December

19, 2022.

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AS AND FOR A FOURTH CAUSE OF ACTION

67. Upon information and belief, §18-7 of the City of Lockport Charter

("Code of Ethics") prohibits a municipal officer from participating

in any decision or taking any action with respect to any matter

requiring the exercise of discretion including discussing the matter

and voting on it when, he knows or has reason to know that the

action could confer a direct or indirect financial or material benefit

on a relative.

68.Upon information and belief, Alderman Mark Devine is a duly

elected municipal officer and his son is a member of the City of

Lockport Fire Department that would benefit both financially and

materially with the adoption of Resolution 121922.2.

69.Upon information and belief, §18-4 of the City of Lockport Charter

prohibits a municipal officer from using his or her municipal

position or official powers to secure a financial or material benefit

for a relative.

70.Upon information and belief, Alderman Mark Devine is a duly

elected municipal officer and by failing to abstain or recuse himself

from voting on Resolution 121922.2 he used his position to secure

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a financial and material benefit for his son who is a member of the

City of Lockport Fire Department.

71.Therefore, the adoption of Resolution No. 121922.2 is null and void.

WHEREFORE, Petitioners respectfully request that this Court

enter an Order in its favor as follows:

(a) Declaring that, as to its meeting of December 19, 2022, and

Resolution 121922.2, Respondents, including the City of

Lockport ("City") failed to comply with the City of Lockport

Charter § 51 and Public Officers Law §104 (1) and (6), regarding

public notice requirements for meetings and special meetings,

and that as a result thereof, all action taken by the City at the

meetings are null and void; and

(b) Declaring that Respondents, including the City of Lockport failed to

comply with of Public Officers Law §103 and §105 and §52 of the City

of Lockport Charter and the Personnel Committee meeting and

subsequent Special Meeting of the Common Council held on December

19, 2022, were not held in public, no basis was ever given to go into

executive session, and no vote was taken to go into executive session,

and as a result thereof, all action taken by the City at those meetings are

void.

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(c) Declaring that no tie existed pursuant to City of Lockport Charter §53 for

the Mayor to cast a tie breaking vote and Resolution No. 121922.2 did

not pass by a majority of the votes cast on December 19, 2022, and as a

result thereof, the resolution did not pass and is null and void, and

( d) Declaring that because Alderman Mark Devine as a duly elected

municipal officer failed to abstain or recuse himself from voting

on Resolution 121922.2, as a result thereof, Resolution No.

121922.2 is null and void.

(e) Declaring that the Petitioners be awarded costs and reasonable

attorney's fees associated with bringing this special proceeding.

(f) Awarding the Petitioners such other and further relief as the

court may deem just and proper.

Dated: April 18, 2023

Buffalo, New York

mey for Petitioners

Newport Ave.
Buffalo, New York. 14216
(716) 435-8918
jamesmostrowski@icloud.com

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VERIFICATION

CITY OF LOCKPORT) ss:

COUNTY OF NIAGARA)

KATHRYN FOGLE, being duly sworn, deposes and says that: I am a

petitioner in this proceeding; I have read the foregoing petition and know the

contents thereof; the same are true to my own knowledge, except as to matters

therein stated to be alleged on information and belief; and as to those matters I

believe them to be true.

SWORN TO BEFORE ME
TIIlS 18TH DAY OF APRIL, 2023

J ....... 0 TROWSKI
...,..,....,
NO PUBLIC-STATE OF NEW YORK
QUALIFIED IN ERIE COUNTY
MY COMMISSION EXPIRES 7/5/23

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