WHITEMAN OSTERMAN | ee rahcom & HANNA ur One Commerce Plaza Albany, New York 12260 ‘Todd M. Mathes 518.487.7600 phone Associate 538.487.7777 fax 8.487766 phone emathes@voh.com January 20,2011 VIA FACSIMILE AND FIRST CLASS MAIL Hon, Hugh A. Gilbert Jefferson County Supreme Court State Office Building 317 Washington Street Watertown, NY 13601 Re: Wind Power Ethics Group v. Planning Bd. of Town of Cape Vincent et al.; Index No. 10-2882 Dear Judge Gilbert: This firm represents Respondent Planning Board of the Town of Cape Vincent in this proceeding. The purpose of this letter is to respeetfully request that the Court schedule a conference or, in the alternative, oral argument so as to allow the issues surrounding Petitioner Wind Power Ethics Group’s use of the attorney / client privileged materials in formulating its December 24, 2010 Reply and January 18, 2011 Supplemental Attorney Affirmation to be heard, as well as to address whatever other issues the Court may decide to address during the conference / oral argument. A conference may be particularly useful in light of Petitioner's assertion that my January 11, 2011 Sur Reply Affidavit amounts to “an ex parte motion to strike Petitioner's papers, and dismiss the case for want of standing.” (Abraham Supp, Aff, dated January 18, 2011, at § 3). By letters dated December 13, 2010 and January 3, 2011, it was confirmed to the Court that the parties were agreement that Respondents would have an opportunity to submit a Sur Reply in this proceeding,' My January 11, 2011 Sur Reply Affidavit was responsive to Petitioner’s December 24, 2010 Reply Affidavits ‘and Brief, including Petitioner's revelation that it was a Limited Liability Company originally consisting of six members, not an Unincorporated Association as had been stated at paragraph 8 of its Verified Petition. Petitioner’s lack of standing, however, was not raised for the first time as part of the Sur Reply, but had been raised as Respondent Planning Board's fourth affirmative defense in its December 8, 2011 Verified Answer. Accordingly, the Sur Reply in no way constitutes an “ex-parte motion” to dismiss the petition for want of standing. " Copies of the December 13, 2010 and January 3, 2011 letters are attached hereto as exhibit “A”Hon, Hugh A. Gilbert January 20, 2011 Page 2 The January 11, 2011 Sur Reply AfVidavit was also responsive to Petitioner's diselosure and use of attomey / client privileged materials for the first time in its Reply Affidavits and Brief. As set forth in the January 11, 2011 Sur Reply A{fidavit and in earlier correspondence between Petitioner’s Attorney and me, thesc materials were obtained despite the denial of a Freedom of Information Law FOIL”) request in April 2009, and in contravention of General Municipal Law § 805-a(1)(b) and CPLR § 4503, Petitioner's January 18, 2011 Supplemental Auomey Affirmation attempts to justify the use of these materials based upon various provisions of the CPLR, Public Officers Law and SEQRA regulations, some of which are unrelated to the question of whether the privilege has been maintained and others of which are totally inapplicable to this proceeding - CPLR Article 31 just for example, Petitioner’s proper remedy from the denial under FOIL would have been to submit an ‘appeal to the Town within thirty days after the denial or, at a minimum, state a cause of action in its Verified Petition which related to the denial. Similarly, to the extent Petitioner believes the Certified Record in this proceeding is incomplete, Petitioner should have sought an order of the Court pursuant to CPLR § 7804(e) to “...supply any defect or omission in the answer, transcript or an answering affidavit.” Here, instead, Petitioners, with the inappropriate assistance of one of its members, undertook self-help and unilaterally supplemented the Certified Record. ‘The manner in which such documents were acquired clearly dispels any notion of a voluntary waiver, ‘The same is true with respect to Petitioner's submission of the Supplemental Attorney Affirmation without first advising the parties or obtaining the consent of the Court. CPLR § 7804 provides that there shall be a petition, answer and reply. ‘The parties in this proceeding had agreed that Respondents would have an opportunity to submit the Sur Reply, and the submission of a Sur Reply was discussed with Chambers prior to said submission. That was not the procedure followed by Petitioner with respect to the submission of the Supplemental Attorney Affirmation, Accordingly, like the attorney / client privileged materials submitted with Petitioner’s Reply, the Supplemental Attomey Affirmation should be disregarded by the Court. Respectfully, el whith Todd M. Mathes Enclosures © Gary Abraham, Esq. Ruth Leistensnider,EXHIBIT AWHITEMAN ostenman | Sm & HANNA wr one Commerce Plana aia Miia Albaay, aw York 12260 ‘eociate s18.40y7600 plone 8.487 7666 phone s518.487.777 Fa emathes@woh.com December 13, 2010 VIA FASCIMILE (315.785.7909) AND REGULAR MAIL, Jefferson County Supreme Court Hon, Hugh A, Gilbert State Office Building 317 Washington Street Watertown, NY 13601 Re: Wind Power Ethies Group v, Planning Bd. of Town of Cape Vincent et al,; Index No. 10-2882 Dear Judge Gilbert: This firm represents Respondent Planning Board of the Town of Cape Vincent in the above-referenced proceeding, The matter is retumable before the Court this Thursday, December 16, 2010, As discussed with chambers today by Petitioner's counsel and this firm, this is to confirm that, with consent of the parties, personal appearances are not required this ‘Thursday, Petitioner's reply will be submitted to the Court on December 24, 2010, and Respondents’ sur reply on January 4, 2010. Thank you, Respectfully submitted, = Meth S ‘Todd M. Mathes Gary Abraham, Esq. Ruth Leistensnider, Esq.WHITEMAN osranman | sornmpont & HANNA up One Commence Plaza Albony, New York 12260 odd M. Mathes 518.4877600 phone Aesoclate 518.4777 fx January 3, 2011 Jefferson County Sup Hon, Hugh A, Gilbert State Office Building 317 Washington Street Watertown, NY 13601 Re: Wind Power Ethics Group v. Planning Bd. of Town of Cape Vincent et al. Index No, 10-2882 Dear Judge Gilbert: This firm represents Respondent ‘Town of Cape Vincent Planning Board in the above- captioned proceeding. As set forth by letter dated December 13, 2010, the parties previously conferred with Chambers and agreed that Petitioner's reply was due for service on December 24, 2010, and Respondents’ sur reply on January 4, 2011, the adjourned return date, Chambers also ‘confirmed that following submission of Respondents’ sur replies on January 4, 2011, if any, the Court would decide whether to hold oral argument, We received a set of reply papers from Petitioner via email on December 24, 2010 and December 25, 2010. Petitioner's reply included an atlomey affirmation enclosing 104 pages of supplemental materials which were neither part of the Verified Petition nor the Certified Record. So as to provide Respondents’ with an adequate ‘opportunity to review the contents of the supplemental materials, the parties have agreed that the return date should be adjourned and Respondents? sur reply will not be due for service until January 11, 2011 ‘Thank you, Respectfully submitted, Zl HSK 5 Todd M, Mathes: c: Gary Abraham, Esq. Ruth Leistensnider, Bag intima pe ds