FILED: ERIE COUNTY CLERK 09/09/2022 11:48 AM INDEX NO.

808016/2022
NYSCEF DOC. NO. 105 RECEIVED NYSCEF: 09/09/2022

STATE OF NEW YORK : COUNTY OF ERIE

SUPREME COURT :
:
For a Judgment Pursuant to CPLR Article 78 : PETITIONER’S MEMORANDUM OF
annulling and setting aside approval of a site : LAW IN SUPPORT OF MOTION FOR
plan review by Respondents, : DEFAULT JUDGMENT OR
: ALTERNATIVELY AN ORDER
Daniel T. Warren : DIRECTING RESPONDENTS PLANNING
Petitioner, : BOARD AND TOWN TO SUPPLY ANY
Against : DEFECT OR OMISSION IN THE
: ANSWER AND TRANSCRIPT
The Planning Board of the Town of West :
Seneca, Town of West Seneca, New York and : Index # 808016/2022
Canisius High School of Buffalo, New York, :
by and through Fr. David Ciancimino, S.J., as : Hon. Mark J. Grisanti, J.S.C
its President. : Assigned Justice
Respondents :

PRELIMINARY STATEMENT

This is a motion for a default judgment. This Article 78 proceeding was commenced on

July 15, 2022 challenging Respondents Planning Board and Town’s June 9, 2022 issuance of a

negative SEQRA declaration for Respondent Canisius’ application for site plan review and the

July 14, 2022 approval of that application for site plan review. No certified return as required by

CPLR § 7804(e) has been filed in this proceeding by August 19, 2022 as provided in the Order to

Show Cause by Respondents Planning Board an Town. No Respondent filed a verified answer

or motion to dismiss on objections in point of law by August 31, 2022 as provided in the Order

to Show Cause. Respondents have defaulted in pleading as required by the Order to Show

Cause. This requires that the Respondents Planning Board and Town’s June 9, 2022 issuance of

a negative SEQRA declaration for Respondent Canisius’ application for site plan review and the

July 14, 2022 approval of that application for site plan review be annulled and this matter

remanded for further proceedings.

APPLICABLE STANDARD FOR DEFAULT JUDGMENT

CPLR § 3215 (a) provides, in relevant part:

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"When a defendant has failed to appear, plead or proceed to trial ...

the plaintiff may seek a default judgment against him. If the
plaintiff's claim is for a sum certain or for a sum which can by
computation be made certain, application may be made to the clerk
within one year after the default."

On a motion for a default judgment under CPLR § 3215, based upon a failure to answer

the complaint, a plaintiff demonstrates entitlement to a default judgment against a defendant by

submitting:

(1) proof of service of the summons and complaint, (or Order to Show Cause and verified

petition)

(2) proof of the facts constituting its claim,

(3) proof of the defendant's default in answering or appearing, and

(4) proof of the amount due by an affidavit made by the party.

(See CPLR 3215 [f]; Gantt v N. Shore-LIJ Health Sys., 140 AD3d 418, 418 [1st Dept

2016].). The statute applies equally to special proceedings brought under CPLR article 78 (see

Matter of Citron v Curiale, 273 AD2d 183, 184 [1st Dept 2000], lv denied 95 NY2d 766 [2000]).

Should the body or officer fail either to file and serve an answer or to move to dismiss,

the court may either issue a judgment in favor of the petitioner or order that an answer be

submitted., see NY CPLR § 7804(e); see also, e.g., Marseilles Leasing Co. v. New York State

Div. of Housing and Community Renewal, 140 A.D.2d 345 (2d Dept 1988).

The failure to interpose a timely answer constitutes a default in pleading, an independent

default basis that is analytically “distinct from a failure to appear” (Siegel & Connors, NY Prac §

293 [6th ed 2018]). Accordingly, a defendant who serves a timely notice of appearance may

nevertheless default in answering (see Deutsche Bank Natl. Trust Co. v Hall, 185 AD3d at

1009). More generally, “[a] defendant who has duly appeared can be guilty of a default at [any]

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later stage of the action, such as by failing to show up at the trial at the scheduled time” (Siegel

& Connors, NY Prac § 293 [6th ed 2018]; see CPLR 3215 [a]; see also Kraus Bros. v Hoffman

& Co., 99 AD2d 401, 402 [1984]; see generally 7 Weinstein-Korn-Miller, NY Civ Prac: CPLR ¶

3215.00).

As the Court in Haberman v. Zoning Bd. of Appeals of Long Beach, 58 N.Y.S.3d 585,

152 A.D.3d 683 (2nd Dept. 2017) held “‘To defeat a facially adequate CPLR 3215 motion, a

defendant must show either that there was no default, or that it has a reasonable excuse for its

delay and a potentially meritorious defense to the action’ (Ingvarsdottir v Gaines, Gruner,

Ponzini & Novick, LLP, 144 AD3d 1097, 1098 [2016]; Fried v Jacob Holding, Inc., 110 AD3d

56, 60 [2013]; Wassertheil v Elburg, LLC, 94 AD3d 753, 753 [2012]; New Seven Colors Corp. v

White Bubble Laundromat, Inc., 89 AD3d 701, 702 [2011]). ‘The motion is addressed to the

broad discretion of the court, which should also consider whether prejudice has resulted from the

delay, whether there is evidence of willfulness on the defaulting defendant's part, and the strong

public policy in favor of resolving cases on the merits’ (Brice v City of New York, 139 AD3d

888, 889 [2016]; see Ingvarsdottir v Gaines, Gruner, Ponzini & Novick, LLP, 144 AD3d at

1098).”

An adverse party responds to the allegations in a petition in "a verified answer, which

must state pertinent and material facts showing the grounds of the respondent's [determination]"

(CPLR 7804[d]). The CPLR authorizes a respondent to "raise an objection in point of law by

setting it forth in [its] answer or by a motion to dismiss the petition, made upon notice within the

time allowed for answer" (CPLR 7804[f]; see CPLR 3211[a]; Matter of Miller v Ravitch, 60

NY2d 527, 533).

CPLR § 3020 requires an Answer to be verified when, as here, the petition is verified.

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The answer should contain: (1) responses to the petition's allegations; (2) objections in

point of law that could terminate the proceeding; (3) a statement of pertinent and material facts

showing the grounds of the respondent's actions complained of (CPLR § 7804(d)); and (4)

verification by someone at the agency with personal knowledge of the facts, whenever possible

(Mtr. of Battaglia v. Schuler, 60 AD.2d 759 (4th Dep't 1977)).

The mere filing and serving of an answer, without filing a certified transcript and/or

affidavits or other written proof demonstrating the basis for respondent's determination, is not

sufficient to satisfy the requirements of CPLR § 7804(e) and may result in entry of a default

judgment (In the Matter of Gilbert v. Endres, 13 A.D.3d 1104 (4th Dept. 2004); Matter of

Captain Kidd's v. Liquor Auth, 248 A.D.2d 791, opinion on remand, 249 A.D.2d 739 (3d Dep't

1998); Polite v. Goord, 245 A.D.2d 1109 (4th Dept. 1997)). Likewise, "the interposition of an

affidavit without an answer raises no triable issues and is a default which entitles the court to

grant a final judgment." 9A N.Y. Jur. 28 Article 78 § 388 (Default judgment in Article 78

proceedings), citing Clifford v. Seaman, 278 A.D. 667 (2d Dept. 1951).

PROOF OF THE FACTS CONSTITUTING THE CLAIM

As detailed in my affidavit in support of this motion together with the Verified

Petition/Complaint (NYSCEF #1-19) (that may be used as an affidavit CPLR § 105(u))

establishes a prima facie case since the default constitutes an admission of all of the factual

allegations of the petition (including the basic allegation of liability) and all reasonable

inferences therefrom (see, Rokina Opt. Co. v Camera King, 63 NY2d 728, 730; Silberstein *698

v Presbyterian Hosp., 95 AD2d 773, 774; see also, Muhlhahn v Triple Cee Bar & Rest. Supply

Co., 133 AD2d 996, 997).

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For the reasons set forth in Petitioner’s Memorandum of Law in Support of Verified

Petition/Complaint (NYSCEF #21) which is incorporated by reference as supplemented by the

arguments below, Petitioner has set forth sufficient facts constituting the claims in this

proceeding.

RESPONDENT PLANNING BOARD ACTED WITHOUT JURISDICTION

The Respondent Planning Board failed to provide the Erie County Department of

Environment and Planning a “full statement of such proposed action” as that term is defined in

General Municipal Law § 239-m[1][c] (Verified Petition/Complaint ¶¶ 117, 154-156 (NYSCEF

#1); Affidavit of Daniel T. Warren in support of this motion ¶¶ 45 – 49).

This is the very same grounds that Respondent Planning Board’s prior conditional

approval of June 10, 2021 of Respondent Canisius’ application for site plan review was set aside

by Justice Siwek on April 21, 2022 (Exhibit “H” of Petitioner’s affidavit dated August 11, 2022

(NYSCEF #38)).

Therefore, Respondent Planning Board lacked jurisdiction to grant Respondent Canisius’

application for site plan approval. This requires that the June 9, 2022 negative declaration and

the July 14, 2022 site plan approval be vacated and set aside (Save Harrison, Inc. v.

Town/Village Harrison, 168 A.D.3d 949 (2nd Dept. 2019); Fichera v. N.Y.S. Dep't of Envtl.

Conservation, 159 A.D.3d 1493 (4th Dept. 2018); Matter of Ernalex Constr. Realty Corp. v City

of Glen Cove, 256 A.D.2d 336, 338 [2d Dept 1998]).

RESPONDENT PLANNING BOARD DID NOT COMPLY WITH THE SUBSTANTIVE

AND PROCEDURAL REQUIREMENTS OF SEQRA

This action is a Type I action under SEQRA which presumptively requires a positive

declaration. A “Type I action carries with it the presumption that it is likely to have a significant

effect on the environment and will require an EIS." (Miller v. City of Lockport, 210 A.D.2d 955,

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957 (4th Dep't 1994)). “The threshold at which the requirement that an EIS be prepared is

triggered relatively low.” (Chinese Staff v. City of New York, 68 N.Y.2d 354 (1986)). A “Type I

action carries with it the presumption that it is likely to have a significant effect on the

environment and will require an EIS." Miller v. City of Lockport, 210 A.D.2d 955, 957 (4th Dep't

1994). The Verified Petition/Complaint states a prima facie case that a positive SEQRA

declaration should have issued and not a negative SEQRA declaration that was issued.

The record is comprised of the “facts and record adduced before the agency” with regard

to the determinations that are challenged in the Article 78 proceeding. Matter of Kelly v. Safir, 96

N.Y.2d 32, 39 (2001). See also, Mtr. of Argyle Conservation v. Town of Argyle, 223 A.D.2d 796,

798 (3rd Dept. 1996) (record comprised of the items that were presented to and considered by

the Board in connection with the SEQR process). Judicial review of an administrative action in a

CPLR Article 78 proceeding is limited to the facts and record adduced before the agency when

the determination was made. Kelly v. Safir, supra at 39. The Court cannot consider substantive

information that was not before the decision maker at the time the challenged decision was made

(Welch v. New York State Division of Housing & Community Renewal, 287 A.D.2d 725, 726

(2nd Dept. 2001); Matter of Montalbano v. Silva, 204 A.D.2d 457, 458 (2nd Dept. 1994);

Celestial Food Corp. of Coram, Inc. v. New York State Liquor Authority, 99 A.D.2d 25, 26-27

(2nd Dept. 1984); In re City of Saratoga Springs v. Zoning Bd., 279 A.D.2d 756, 760 (3rd Dept.

2001)).

Even if adequate grounds exist for the administrative determination, the determination

will be annulled if the grounds upon which it rests are inadequate or improper, or were not the

actual grounds relied upon. Judicial review of administrative determinations is limited to the

grounds invoked by the administrative body at the time of the decision (AVJ Realty Corp. v. New

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York State Division of Housing & Community Renewal, 8 A.D.3d 14 (lst Dep't 2004); In re of

Stone Landing Corp., 5 A.D.3d 496 (2d Dep't 2004); In re of Cerame, 6 A.D.3d 1091 (4th Dep't

2004); Civil Service Employees Ass'n v. New York State Public Employment Relations Board,

276 A.D.2d 967 (3d Dep't 2000), Iv. denied, 96 N.Y.2d 704 (2001)). Agency determinations

must reach the right result for right reason. Where the wrong reason is stated, but the right result

determined, the remedy is a remand for reconsideration (Matter of Scherbyn v. Boces, 77 N.Y.2d

753 (1991); Matter of Montauk Improvement v. Proccacino, 41 N.Y.2d 913 (1977); Matter of

Parkmed Associates v. New York St. Tax Comm, 60 N.Y.2d 935 (1983)). In Montauk

Improvement, supra, the Court of Appeals stated:

[A] reviewing court, in dealing with a determination ... which an

administrative agency alone is authorized to make, must judge the
propriety of such action solely by the grounds invoked by the agency. If
those grounds are inadequate or improper, the court is powerless to affirm
the administrative action by substituting what it considers to be a more
adequate or proper basis (citation omitted).

See Matter of Barry v. O'Connell, 303 N.Y. 46, 51-52 (1951); Fink v. Cole, 136 N.Y.S.2d

810, 812-13 (Sup. Ct. N.Y. County 1954), affd., 286 A.D.2d 73 (1st Dep't 1955), rev'd on other

grounds, 1 N.Y.2d 48 (1956); Tamulinas v. Board of Education, 279 A.D.2d 527 (2d Dep't

2001); Matter of Bruns v. Hanna, 101 A.D.2d 1015, 1016 (4th Dep't 1984); Baker v. Town of Mt.

Pleasant, 92 A.D.2d 611 (2d Dep't 1983); Matter of Golisano v. Town Bd., Macedon, 31 A.D.2d

85, 87-88 (4th Dep't 1968); Matter of Blum v D'Angelo, 15 A.D.2d 909, 910 (1st Dep't 1962).

The affidavit of Brad Vailliancourt (NYSCEF #42) should not be considered on this

motion since it was not before Respondent Planning Board at the time it made the decision to

issue a negative SEQRA declaration on June 9, 2022 and its approval of Respondent Canisius’

application for site plan review on July 14, 2022. This affidavit also fails to comply with 22

NYCRR § 202.8-b in that it lacks the required certification.

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Respondents Planning Board and Town have not filed the certified return pursuant to

CPLR § 7804(e). The Order to Show Cause that initiated this proceeding required them to file

their return on or before August 19, 2022 (NYSCEF #33). The affidavit of Jeffrey Scheiber

(NYSCEF #47 – 55) cannot be construed as the certified return since he is not a member of the

Planning Board nor is he the Secretary of the Planning Board or the Town Clerk. In the absence

of a properly certified return to satisfy the requirements of CPLR 7804(e) the allegations in the

Petition should be deemed true (In the Matter of Gilbert v. Endres, 13 A.D.3d 1104 (4th Dep't

2004)). Mr. Scheiber is also not one of the decision makers since he is not a member of the West

Seneca Planning Board. It is absolutely essential in a "non-hearing" case that the determination

be supported by detailed affidavits authored by decision-makers, carefully explaining the

grounds for the determination (In the Matter of Kirmayer, 24 A.D.3d 850 (3d Dep't 2005)). Mr.

Scheiber’s affidavit should not be considered on this motion since it was not before Respondent

Planning Board at the time it made the decision to issue a negative SEQRA declaration on June

9, 2022 and its approval of Respondent Canisius’ application for site plan review on July 14,

2022. This affidavit also fails to comply with 22 NYCRR § 202.8-b in that it lacks the required

certification.

Mr. Schreiber’s unsubstantiated averments that the NYSDOT was included as an

involved agency would have this Court believe that the NYSDOT did not carry out its obligation

with the Freedom of Information Law (Public Officers Law Art. 6).

Therefore, there is a likelihood of success that Respondent Planning Board’s negative

SEQRA declaration issued on June 9, 2022, was made in violation of lawful procedure, without

jurisdiction, affected by an error of law, arbitrary and capricious, an abuse of discretion, and not

supported by substantial evidence.

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PROOF OF SERVICE AND PROOF OF DEFAULT

Plaintiff has submitted proof that Danielle Uniforms Inc. was served with the summons and

verified complaint (NYSCEF 54, Affidavit of Service; NYSCEF 55, Affidavit of Additional

Mailings.) Further, plaintiff's counsel affirms that Danielle Uniforms Inc. has failed to answer

the verified complaint. (NYSCEF 312, Strassberg aff ¶ 4.)

CONCLUSION

For the reasons set forth above an Order pursuant to CPLR § 6311 should be entered as

follows:

1. Preliminarily enjoining Respondent Canisius, its agents, employees and

servants and all who are in privity with them, from any and all land clearing,

vegetation removal, bulldozing, grading, construction or issuance of grading

or building permits, or any funding approval, or any other action with respect

to the property located at 2448 & 2885 Clinton Street, West Seneca, New

York (hereinafter “Subject Parcel”) until 30 days after such time Respondent

Planning Board and the Town of West Seneca has completed its review on

remand from this Court or upon further order of this Court;

2. together with such other relief as the court deems proper.

DATED: September 9, 2022

West Seneca, New York

Yours, etc.

/S/ Daniel T. Warren

Daniel T. Warren
Plaintiff, Pro Se
836 Indian Church Road
West Seneca, New York 14224
716-288-6724

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CERTIFICATION

I, DANIEL T. WARREN., as Petitioner, pro se, hereby certify the following:

Pursuant to Uniform Rule 202.8-b, the above Memorandum is 2,652 words, excluding the
caption, table of contents, table of authorities, and signature block. I further certify the foregoing
complies with the 7,000-word limit for memoranda set forth in Uniform Rule 202.8-b.

DATED: September 9, 2022

West Seneca, New York

Yours, etc.

/S/ Daniel T. Warren

Daniel T. Warren
Plaintiff, Pro Se
836 Indian Church Road
West Seneca, New York 14224
716-288-6724

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