Preview
FILED: MONROE COUNTY CLERK 11/15/2022 04:41 PM INDEX NO. E2018000937
NYSCEF DOC. NO. 1243 RECEIVED NYSCEF: 11/15/2022
MONROE COUNTY CLERK’S OFFICE THIS IS NOT A BILL. THIS IS YOUR RECEIPT.
Receipt # 3255847
Book Page CIVIL
Return To: No. Pages: 5
LAURIE STYKA BLOOM
40 FOUNTAIN PLAZA Instrument: MISCELLANEOUS DOCUMENT
STE 500
BUFFALO, NY 14202 Control #: 202211160300
Index #: E2018000937
Date: 11/16/2022
In the Matter of the Application of Clover/Allen's Creek Time: 10:10:14 AM
Neighborhood Association LLC
SAVE MONROE AVE INC
2900 MONROE AVE LLC
CLIFFORDS OF PITTSFORD LP
ELEXCO LAND SERVICES INC
M&F, LLC
Daniele SPC, LLC
Mucca Mucca LLC
Mardanth Enterprises, Inc.
M&F, LLC, Daniele SPC, LLC, Mucca Mucca LLC, Mardanth
Enterprises, Inc. Collectively doing business as Daniele Family
Companies
Total Fees Paid: $0.00
Employee:
State of New York
MONROE COUNTY CLERK’S OFFICE
WARNING – THIS SHEET CONSTITUTES THE CLERKS
ENDORSEMENT, REQUIRED BY SECTION 317-a(5) &
SECTION 319 OF THE REAL PROPERTY LAW OF THE
STATE OF NEW YORK. DO NOT DETACH OR REMOVE.
JAMIE ROMEO
MONROE COUNTY CLERK
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NO. E2018000937
FILED: MONROE COUNTY CLERK 11/15/2022 04:41 PM
NYSCEF DOC. NO. 1243 RECEIVED NYSCEF: 11/15/2022
STATE OF NEW YORK
SUPREME COURT : COUNTY OF MONROE
___________________________________________________________
In the Matter of the Application of
CLOVER/ ALLEN’S CREEK NEIGHBORHOOD ASSOCIATION
LLC,
Petitioner-Plaintiff,
and
Index No.: E2018000937
SAVE MONROE AVE., INC., 2900 MONROE AVE., LLC,
CLIFFORDS OF PITTSFORD, L.P., ELEXCO LAND SERVICES,
INC., JULIA D. KOPP, MARK BOYLAN, ANNE BOYLAN, and
STEVEN M. DEPERRIOR,
Petitioners-Plaintiffs-Intervenors,
-against-
M&F, LLC, DANIELE SPC, LLC, MUCCA MUCCA LLC,
MARDANTH ENTERPRISES, INC., M&F, LLC, DANIELE SPC,
LLC, MUCCA MUCCA LLC, MARDANTH ENTERPRISES, INC.,
COLLECTIVELY DOING BUSINESS AS DANIELE FAMILY
COMPANIES, TOWN OF BRIGHTON, NEW YORK, TOWN
BOARD OF THE TOWN OF BRIGHTON, NEW YORK, NMS
ALLENS CREEK INC., and ROCHESTER GAS AND ELECTRIC
COMPANY,
and any persons or entities found to have an interest
in the property subject to this action but not yet named.
For a Judgment Pursuant to New York CPLR Article 78,
for a Declaratory Judgment pursuant to New York
CPLR 3001, and for a judgment to quiet title pursuant
to Real Property Actions and Proceedings Law Article 15
Respondents-Defendants.
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NYSCEF DOC. NO. 1243 RECEIVED NYSCEF: 11/15/2022
SMA/BGR/CAC PETITIONERS’/PLAINTIFFS’
JOINT EXPERT DISCLOSURE
1. The name and address of each person you expect to call as an expert
witness at trial.
Petitioners-Plaintiffs in all of the joined actions (collectively,
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“SMA/BGR/CAC”) intend to call: Kristin L. Savard, PE, 761 Cayuga
Street, Lewiston, New York 14092.
2. The exact subject matter on which each expert is expected to testify.
SMA/BGR/CAC anticipate that Ms. Savard will testify as an expert on
commercial project site planning, engineering, and design, and land use,
including assessing and discussing site plan design features, logistics,
functionality, feasibility, and potential site plan design problems,
specifically as they relate to the Auburn Trail/public recreation
easements.
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Petitioners/Plaintiffs Save Monroe Ave., Inc., 2900 Monroe Ave., LLC, Cliffords of
Pittsford, L.P., Elexco Land Services, Inc., Julia D. Kopp, Mark Boylan, Anne Boylan
and Steven M. Deperrior will be collectively referred to as “SMA”. Petitioners/Plaintiffs
Brighton Grassroots, LLC, Howard R. Jacobson, Margery Hwang, Roberta Kerry, David
G. Grant, Anthony Kinslow, Peter Mulbery, Lisa Whittermore, Norman Whittermore,
Roberta Kerry-Sharick, and Lindsay Duell will be collectively referred to as “BGR”.
Petitioner/Plaintiff Clover/Allen’s Creek Neighborhood Association, LLP (“CAC”),
together with SMA and BGR, will be collectively referred to as “SMA/BGR/CAC”.
This expert disclosure pertains to the public trust and permissive referendum claims
brought by SMA/BGR/CAC in four separate but related lawsuits. SMA’s permissive
referendum claims were raised in Save Monroe Ave., Inc., v. Town of Brighton Planning
Board, Monroe Cnty. Sup. Ct. Index No. E2018007331 (“SMA 2”), and Save Monroe
Ave., Inc. v. Town of Brighton Planning Board, Monroe Cnty. Sup. Ct. Index No.
E2018008349 (“SMA 3”). The Court later consolidated SMA 2 & SMA 3 into a single
action, under the Index Number for SMA 2 (E2018007331). See SMA 2, Dkt. 67.
Petitioner also intervened in a fourth matter, Clover/Allen’s Creek Neighborhood Ass’n,
LLC v. M&F, LLC, et al, Monroe Cnty. Sup. Ct. Index No. E2018000937 (“CAC 1”),
where SMA and CAC raised public trust doctrine claims. BGR raised permissive
referendum and public trust doctrine claims in Brighton Grassroots, LLC v. Town of
Brighton, Monroe Cnty. Sup. Ct. Index No. E2018002961 (“BGR 1”).
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3. The substance of the facts and opinions on which each expert is expected
to testify.
The substance of the facts and opinions on which Ms. Savard is expected
to testify are as follows: (1) how existing recreational trails are treated by
municipalities during the site plan review process for new commercial
developments, including how these trails are typically incorporated into
those developments; (2) how existing easements are treated during the
site plan process; (3) common design features typically required for
public recreational trails running near or through commercially developed
areas; (4) how that portion of the Auburn Trail comprised of the Town’s
public access easements travels through the site plan of the Whole Foods
plaza project that was approved by the Town of Brighton (“Town”); (5)
what steps were taken by the Town during the site plan review and
approval process to preserve these areas of the Auburn Trail (the
easements) as a community asset, as evidenced by the features of
approved final site plan design; (6) what steps were taken by the Town to
preserve the Auburn Trail as a recreational trail for public use during the
construction of the Project; (7) whether the Town’s approved site plan for
the Project includes features designed to preserve the Auburn Trail along
the path of the Town’s public use easements; (8) whether the Town’s
public use easements will be visible or otherwise identifiable by the
public if the Project is built in accordance with the Town-approved site
plan; (9) what impact the design features of the Project as depicted on the
approved final site plan are likely to have on the public’s ability to use
and enjoy the Auburn Trail for recreational purposes; (10) whether
recreational use of the Town’s public use easements will be possible if
the Project is built in accordance with the Town-approved site plan,
including any commenting on any safety issues potentially arising from
the public’s use of the same for recreational purposes; (11) interference
with and abandonment of the Auburn Trail/easements; (12) how the
proposed site plan’s impact on the Auburn Trail compares with prior uses
and conditions at the Whole Foods project site; and(13) comparing the
site plan’s design features specific to the trail bypass to those site plan
design features specific to the Town’s public use easements.
4. The qualifications of each expert witness including, but not limited to,
academic and employment background, publications, professional recognition, certifications, and
professional memberships.
The qualifications of Ms. Savard are set forth in her CV, which is attached
as Exhibit A.
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NYSCEF DOC. NO. 1243 RECEIVED NYSCEF: 11/15/2022
5. A summary of the grounds for each expert’s opinion including, but not
limited to, a statement of all learned treatises, documents, studies, experiments, tests, inspections,
conversations, and photographs upon which he relied in reaching any opinion.
In reaching her opinions, Ms. Savard relied upon her training, education,
and experience, and her review of the deposition transcripts, deposition
exhibits, pleadings, photographs (both current and historical) of the Whole
Foods Project site, and documents produced during discovery, including
but not limited to the Whole Foods Project site plan approved by the
Town. SMA/BGR/CAC may also ask her to consider any and all evidence
presented at trial or hypotheticals based on evidence presented at trial, or
based on materials routinely or reasonably relied on by experts in their
fields when reaching their opinions, in order to give additional trial
testimony.
Dated: November 15, 2022
Buffalo, New York
NIXON PEABODY LLP
s/Laurie Styka Bloom
By:
Laurie Styka Bloom, Esq.
40 Fountain Plaza, Suite 500
Buffalo, New York 14202
(716) 853-8100
lbloom@nixonpeabody.com
Attorneys for Petitioner-Plaintiff, Clover/Allen’s
Creek Neighborhood Association, LLC
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Preview
FILED: MONROE COUNTY CLERK 11/15/2022 04:41 PM INDEX NO. E2018000937 NYSCEF DOC. NO. 1243 RECEIVED NYSCEF: 11/15/2022 MONROE COUNTY CLERK’S OFFICE THIS IS NOT A BILL. THIS IS YOUR RECEIPT. Receipt # 3255847 Book Page CIVIL Return To: No. Pages: 5 LAURIE STYKA BLOOM 40 FOUNTAIN PLAZA Instrument: MISCELLANEOUS DOCUMENT STE 500 BUFFALO, NY 14202 Control #: 202211160300 Index #: E2018000937 Date: 11/16/2022 In the Matter of the Application of Clover/Allen's Creek Time: 10:10:14 AM Neighborhood Association LLC SAVE MONROE AVE INC 2900 MONROE AVE LLC CLIFFORDS OF PITTSFORD LP ELEXCO LAND SERVICES INC M&F, LLC Daniele SPC, LLC Mucca Mucca LLC Mardanth Enterprises, Inc. M&F, LLC, Daniele SPC, LLC, Mucca Mucca LLC, Mardanth Enterprises, Inc. Collectively doing business as Daniele Family Companies Total Fees Paid: $0.00 Employee: State of New York MONROE COUNTY CLERK’S OFFICE WARNING – THIS SHEET CONSTITUTES THE CLERKS ENDORSEMENT, REQUIRED BY SECTION 317-a(5) & SECTION 319 OF THE REAL PROPERTY LAW OF THE STATE OF NEW YORK. DO NOT DETACH OR REMOVE. JAMIE ROMEO MONROE COUNTY CLERK 1 of 5 202211160300 Index # INDEX : E2018000937 NO. E2018000937 FILED: MONROE COUNTY CLERK 11/15/2022 04:41 PM NYSCEF DOC. NO. 1243 RECEIVED NYSCEF: 11/15/2022 STATE OF NEW YORK SUPREME COURT : COUNTY OF MONROE ___________________________________________________________ In the Matter of the Application of CLOVER/ ALLEN’S CREEK NEIGHBORHOOD ASSOCIATION LLC, Petitioner-Plaintiff, and Index No.: E2018000937 SAVE MONROE AVE., INC., 2900 MONROE AVE., LLC, CLIFFORDS OF PITTSFORD, L.P., ELEXCO LAND SERVICES, INC., JULIA D. KOPP, MARK BOYLAN, ANNE BOYLAN, and STEVEN M. DEPERRIOR, Petitioners-Plaintiffs-Intervenors, -against- M&F, LLC, DANIELE SPC, LLC, MUCCA MUCCA LLC, MARDANTH ENTERPRISES, INC., M&F, LLC, DANIELE SPC, LLC, MUCCA MUCCA LLC, MARDANTH ENTERPRISES, INC., COLLECTIVELY DOING BUSINESS AS DANIELE FAMILY COMPANIES, TOWN OF BRIGHTON, NEW YORK, TOWN BOARD OF THE TOWN OF BRIGHTON, NEW YORK, NMS ALLENS CREEK INC., and ROCHESTER GAS AND ELECTRIC COMPANY, and any persons or entities found to have an interest in the property subject to this action but not yet named. For a Judgment Pursuant to New York CPLR Article 78, for a Declaratory Judgment pursuant to New York CPLR 3001, and for a judgment to quiet title pursuant to Real Property Actions and Proceedings Law Article 15 Respondents-Defendants. 1 4855-9004-3199.1 2 of 5 202211160300 IndexNO. INDEX #: E2018000937 E2018000937 FILED: MONROE COUNTY CLERK 11/15/2022 04:41 PM NYSCEF DOC. NO. 1243 RECEIVED NYSCEF: 11/15/2022 SMA/BGR/CAC PETITIONERS’/PLAINTIFFS’ JOINT EXPERT DISCLOSURE 1. The name and address of each person you expect to call as an expert witness at trial. Petitioners-Plaintiffs in all of the joined actions (collectively, 1 “SMA/BGR/CAC”) intend to call: Kristin L. Savard, PE, 761 Cayuga Street, Lewiston, New York 14092. 2. The exact subject matter on which each expert is expected to testify. SMA/BGR/CAC anticipate that Ms. Savard will testify as an expert on commercial project site planning, engineering, and design, and land use, including assessing and discussing site plan design features, logistics, functionality, feasibility, and potential site plan design problems, specifically as they relate to the Auburn Trail/public recreation easements. 1 Petitioners/Plaintiffs Save Monroe Ave., Inc., 2900 Monroe Ave., LLC, Cliffords of Pittsford, L.P., Elexco Land Services, Inc., Julia D. Kopp, Mark Boylan, Anne Boylan and Steven M. Deperrior will be collectively referred to as “SMA”. Petitioners/Plaintiffs Brighton Grassroots, LLC, Howard R. Jacobson, Margery Hwang, Roberta Kerry, David G. Grant, Anthony Kinslow, Peter Mulbery, Lisa Whittermore, Norman Whittermore, Roberta Kerry-Sharick, and Lindsay Duell will be collectively referred to as “BGR”. Petitioner/Plaintiff Clover/Allen’s Creek Neighborhood Association, LLP (“CAC”), together with SMA and BGR, will be collectively referred to as “SMA/BGR/CAC”. This expert disclosure pertains to the public trust and permissive referendum claims brought by SMA/BGR/CAC in four separate but related lawsuits. SMA’s permissive referendum claims were raised in Save Monroe Ave., Inc., v. Town of Brighton Planning Board, Monroe Cnty. Sup. Ct. Index No. E2018007331 (“SMA 2”), and Save Monroe Ave., Inc. v. Town of Brighton Planning Board, Monroe Cnty. Sup. Ct. Index No. E2018008349 (“SMA 3”). The Court later consolidated SMA 2 & SMA 3 into a single action, under the Index Number for SMA 2 (E2018007331). See SMA 2, Dkt. 67. Petitioner also intervened in a fourth matter, Clover/Allen’s Creek Neighborhood Ass’n, LLC v. M&F, LLC, et al, Monroe Cnty. Sup. Ct. Index No. E2018000937 (“CAC 1”), where SMA and CAC raised public trust doctrine claims. BGR raised permissive referendum and public trust doctrine claims in Brighton Grassroots, LLC v. Town of Brighton, Monroe Cnty. Sup. Ct. Index No. E2018002961 (“BGR 1”). 2 4855-9004-3199.1 3 of 5 202211160300 IndexNO. INDEX #: E2018000937 E2018000937 FILED: MONROE COUNTY CLERK 11/15/2022 04:41 PM NYSCEF DOC. NO. 1243 RECEIVED NYSCEF: 11/15/2022 3. The substance of the facts and opinions on which each expert is expected to testify. The substance of the facts and opinions on which Ms. Savard is expected to testify are as follows: (1) how existing recreational trails are treated by municipalities during the site plan review process for new commercial developments, including how these trails are typically incorporated into those developments; (2) how existing easements are treated during the site plan process; (3) common design features typically required for public recreational trails running near or through commercially developed areas; (4) how that portion of the Auburn Trail comprised of the Town’s public access easements travels through the site plan of the Whole Foods plaza project that was approved by the Town of Brighton (“Town”); (5) what steps were taken by the Town during the site plan review and approval process to preserve these areas of the Auburn Trail (the easements) as a community asset, as evidenced by the features of approved final site plan design; (6) what steps were taken by the Town to preserve the Auburn Trail as a recreational trail for public use during the construction of the Project; (7) whether the Town’s approved site plan for the Project includes features designed to preserve the Auburn Trail along the path of the Town’s public use easements; (8) whether the Town’s public use easements will be visible or otherwise identifiable by the public if the Project is built in accordance with the Town-approved site plan; (9) what impact the design features of the Project as depicted on the approved final site plan are likely to have on the public’s ability to use and enjoy the Auburn Trail for recreational purposes; (10) whether recreational use of the Town’s public use easements will be possible if the Project is built in accordance with the Town-approved site plan, including any commenting on any safety issues potentially arising from the public’s use of the same for recreational purposes; (11) interference with and abandonment of the Auburn Trail/easements; (12) how the proposed site plan’s impact on the Auburn Trail compares with prior uses and conditions at the Whole Foods project site; and(13) comparing the site plan’s design features specific to the trail bypass to those site plan design features specific to the Town’s public use easements. 4. The qualifications of each expert witness including, but not limited to, academic and employment background, publications, professional recognition, certifications, and professional memberships. The qualifications of Ms. Savard are set forth in her CV, which is attached as Exhibit A. 3 4855-9004-3199.1 4 of 5 202211160300 IndexNO. INDEX #: E2018000937 E2018000937 FILED: MONROE COUNTY CLERK 11/15/2022 04:41 PM NYSCEF DOC. NO. 1243 RECEIVED NYSCEF: 11/15/2022 5. A summary of the grounds for each expert’s opinion including, but not limited to, a statement of all learned treatises, documents, studies, experiments, tests, inspections, conversations, and photographs upon which he relied in reaching any opinion. In reaching her opinions, Ms. Savard relied upon her training, education, and experience, and her review of the deposition transcripts, deposition exhibits, pleadings, photographs (both current and historical) of the Whole Foods Project site, and documents produced during discovery, including but not limited to the Whole Foods Project site plan approved by the Town. SMA/BGR/CAC may also ask her to consider any and all evidence presented at trial or hypotheticals based on evidence presented at trial, or based on materials routinely or reasonably relied on by experts in their fields when reaching their opinions, in order to give additional trial testimony. Dated: November 15, 2022 Buffalo, New York NIXON PEABODY LLP s/Laurie Styka Bloom By: Laurie Styka Bloom, Esq. 40 Fountain Plaza, Suite 500 Buffalo, New York 14202 (716) 853-8100 lbloom@nixonpeabody.com Attorneys for Petitioner-Plaintiff, Clover/Allen’s Creek Neighborhood Association, LLC 4 4855-9004-3199.1 5 of 5