Preview
INDEX NO. E2024003968
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/01/2024
MONROE COUNTY CLERK’S OFFICE THIS IS NOT A BILL. THIS IS YOUR RECEIPT.
Receipt # 3766687
Book Page CIVIL
Return To: No. Pages: 15
MAUREEN T. BASS
2280 East Avenue Instrument: EFILING INDEX NUMBER
First Floor
Rochester, NY 14610 Control #: 202403040761
Index #: E202400396:
Date: 03/04/2024
Root, Bryan Time: 12:17:55 PM
Town of Greece
State Fee Index Number $165.00
County Fee Index Number $26.00
State Fee Cultural Education $14.25
State Fee Records $4.75 Employee: CW
Management
Total Fees Paid: $210.00
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
WON
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STATE OF NEW YORK
SUPREME COURT: COUNTY OF MONROE
BRYAN ROOT,
Petitioner,
Index No.:
VERIFIED PETITION
VS.
TOWN OF GREECE,
Respondent.
Petitioner BRYAN ROOT, by and through his attorneys, Abrams Fensterman, LLP,
Maureen T. Bass, Esq. and Alexander Fantauzzo, Esq., for his Verified Petition under Article 78
of the Civil Practice Law and Rules against the Town of Greece (“Respondent” or “Greece’’),
affirms under penalty of perjury that the following is true and accurate:
NATURE OF THE PROCEEDING
1 This is a hybrid Article 78 proceeding seeking to declare Respondent’s report
decertifying Petitioner to the Division of Criminal Justice (“DCJS”) as unlawful, arbitrary,
capricious and beyond its authority. It also seeks damages as his constructive discharge was the
result of unlawful retaliation in connection with his whistleblowing relating to the cover-up of the
former Police Chief's fleet vehicle crash.
JURISDICTION
2 This Court has jurisdiction to hear this matter under Article 78 and Section 3001 of
the New York State Civil Practice Law and Rules.
PARTIES
3 Petitioner Bryan Root is a resident of the County of Monroe, State of New York.
4 Respondent Greece is a municipality of the State of New York.
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FACTUAL ALLEGATIONS
Petitioner
5 Petitioner was born and raised in the Town of Greece. In 2005, he left to serve his
Country as a United States Marine.
6 In 2010, Petitioner returned home after serving tours in both Afghanistan and Iraq.
7
On August 30, 2010, Petitioner joined the Town of Greece Police Department
(“GPD” or “Police Department.”)
8 Petitioner protected and served Greece’s residents with distinction. In annual
evaluations, supervisors praised Petitioner for his integrity, leadership and skill. Supervisors
recognized his efforts with numerous awards including two Platoon Unit Commendations, three
Officer of the Month, two Excellent Police Service, and ten Chief’s Letter of Recognition.
9 Monroe County also awarded Petitioner five Stop DWI Certificates of Appreciation
in connection with an estimated one hundred and thirty-six DWI arrests between the years of 2011
and 2015.
10. In 2015, the Respondent promoted Petitioner to Sergeant after finding him worthy
and competent of leading, training and supervising platoons of officers.
11. On October 20, 2021, Petitioner was one of a few individuals at the GPD on the list
of Sergeants eligible for promotion to Lieutenant.
The Crash and Cover-Up
12. On or about Thursday, October 21, 2021 and days before a Town Supervisor
election, Respondent’s Chief of Police was involved in a fleet vehicle crash.
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13. On Friday, October 22, 2021, Petitioner reported to work and learned about the
circumstances of the crash and GPD’s investigation. Petitioner preserved certain details of the
crash including taking photographs of the vehicle. One of those photographs was later given to the
edia by a third party.
14. The photograph proved that Respondent had covered up and downplayed details of
the crash, presumably to lessen any impact it could have on its Town Supervisor’s re-election bid.
15. On Saturday, October 23, 2021, the GPD’s Deputy Chiefs were ordered to
determine and disclose the identity of the whistleblower who took the photograph.
16. Concerned that they had been ordered to do something illegal or improper, Greece’s
Deputy Police Chiefs made a report to Respondent’s Town Attorney and asked the Monroe County
District Attorney to become involved in the matter.
17. On Sunday, October 24, 2021, Respondent knew that Petitioner was the employee
who took the photograph.
The Retaliation
18. On Monday, October 25, 2021, Petitioner was passed over for promotion to Acting
Lieutenant.
19. On Tuesday, November 9, 2021, Petitioner was passed over for promotion to
Acting Lieutenant.
20. On Thursday, November 11, 2021, Petitioner met with his supervisor, Acting
Deputy Chief Ryan Parina, to report his continuing concerns about Respondent’s cover-up and his
concern that he was being treated differently as a result of his efforts to expose the cover-up.
21. On Saturday, November 13, 2021, Petitioner was passed over for promotion to
Lieutenant.
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22. On November 30, 2021, Petitioner learned he was the target of an internal
investigation. In over a decade of service, Petitioner had never been the target of an investigation.
23. On December 1, 2021, Petitioner received a Notice of Internal Affairs
Investigation.
24, On December 5, 2021, Petitioner was passed over for promotion to Lieutenant.
25. On December 8, 2021, Petitioner eppeared for compelled testimony before Joseph.
Morabito, who had been authorized by Respondent to investigate the crash and surrounding
circumstances. Petitioner testified that he believed employees and/or officials of Respondent had.
orchestrated a cover-up and asserted that his decision to expose the cover-up was an obligation to
his oath of office.
26. On December 16, 2021, Respondent’s attorney Karlee Bolaiios told Petitioner that
his whistleblowing actions in disclosing the cover-up were “egregious in bringing great
embarrassment to the town and police department.” She further advised him that he would be
suspended for thirty days.
27. In contrast, the Lieutenant who responded to the crash and performed no sobriety
tests on the Chief who ultimately pleaded guilty to DWAI, received only a ten-day suspension.
28. On December 17, 2021, Karlee Bolafios told Petitioner that if he did not accept the
punishment, he would be brought up on charges and that he could be arrested for “meddling with
public election laws.” Fearing criminal prosecution and the loss of his pension and career,
Petitioner accepted the punishment.
29. On February 2, 2022, Petitioner returned to work.
30. At this time, all of these events had taken a significant toll on Petitioner’s physical
and mental health.
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31. On February 7, 2022 after completing his suspension, Petitioner reported to Chief
Michael Wood and was served with a formal written suspension — the first in his career. During
that same meeting, Chief Michael Wood told Petitioner he had a “clean slate” with him, but not
necessarily with Respondent.
32. Petitioner understood that statement to mean that the Respondent would hold
Petitioner’s whistleblowing activities against him.
33. On March 17, 2022, Petitioner served a Notice of Claim against the Respondent.
A copy of the Notice of Claim is attached as Exhibit 1.
34, On May 19, 2022, Petitioner was passed over for promotion to Lieutenant.
35. On June 23, 2022, Petitioner was passed over for promotion to Lieutenant.
36. In July 2022, Deputy Chief Naser Zenelovic told Petitioner that Bill Reilich, the
Town Supervisor who was up for re-election when Petitioner exposed the cover-up, received an
anonymous complaint from a citizen complaining about ATVs and gambling in Petitioner’s
neighborhood. The anonymous complaint also made a reference to Petitioner’s fleet vehicle in his
home’s driveway.
37. Deputy Chief Zenelovic ordered Petitioner to set up an ATV detail. Upon
information and belief, no investigation was opened into the location of Respondent’s fleet vehicle
because Sergeants were allowed to perform their duties from any location within the Greece town
limits.
38. At that time, as a Sergeant, Petitioner reported to Lieutenant Visconte and Deputy
Chief Zenelovic, and in connection with their obligations to supervise Petitioner, both individuals
believed that Petitioner was successfully performing his job.
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39. In October 2022, Lieutenant Visconte and Deputy Chief Zenelovic completed
Petitioner’s evaluations including:
a. Lieutenant Visconte stated, “my observations, opinions and conclusions of
[Petitioner’s] job performance lead me to the conclusion he has been [an]
exemplary sergeant” and he has “accomplished and exceeded my expectations.”
Lieutenant Visconte went on to cite Petitioner’s character and unwavering
dedication to the department.
Deputy Chief Zenelovic concurred with Lieutenant Visconte’s findings. He went
on to state that Petitioner is “active in his supervision and routinely responds to in-
progress calls with his officers.” Deputy Chief Zenelovic praised Petitioner for
spearheading a project, eagerly volunteering, accepting a challenge and working
diligently on a project for the betterment of the department.
40. On January 1, 2023, Petitioner’s supervisor was changed to the Lieutenant who
Petitioner believed was involved in the cover-up of the former Chief's crash.
41. On January 1, 2023, Petitioner was passed over for promotion to Lieutenant.
42. On January 26, 2023, Petitioner was passed over for promotion to Lieutenant.
43. On March 30, 2023, Petitioner was passed over for promotion when a captain
position was created for a transfer into the GPD.
44. On April 20, 2023, Petitioner was passed over for promotion to Lieutenant.
45. In May 2023, Petitioner’s supervisor, Lieutenant Potter, told him that “they [the
administration] said they won’t promote you while you’re suing the town, but I'll never repeat
that.”
46. In May 2023, Petitioner moved from away from his neighborhood.
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47. On June 26, 2023, Petitioner was passed over for promotion to Lieutenant.
48. In early August 2023, Petitioner requested a meeting with Chief Michael Wood to
plead with him that he had paid a sufficient penalty for exposing the cover-up and seek guidance
about what he could do to be eligible for promotion.
49. Chief Wood expressed surprise that Petitioner was asking to be considered for a
promotion since he was “suing the town.”
50. On August 28, 2023, Deputy Chief Springer interviewed Lieutenants Potter and
Visconte about Petitioner, allegedly to “determine if (Petitioner)’s supervisors were aware and
have given approval for (Petitioner) to remain at his residence for extended periods of time while
on duty.” These interviews were only ten months after Petitioner’s evaluations in which both his
supervising Lieutenant and Deputy Chief made no mention about Petitioner remaining at his
residence for extended periods of time.
Si. On August 28, 2023, Deputy Chief Springer advised Petitioner that the GPD was
“4nvestigating an anonymous citizen complaint from a person in your prior neighborhood about
activities in the neighborhood.” As noted, this was Petitioner’s prior neighborhood as he had
moved several months earlier. A copy of the Intra-Departmental Correspondence is attached as
Exhibit 2.
52. On August 31, 2023, Petitioner appeared for his compelled interview. Petitioner’s
Union CBA requires that “[iJn all criminal investigations, the members nvust be given the Miranda
warning prior to any investigation.” The Agreement between The Town of Greece and The Gold
Badge Club, Article 24, Section 12. Petitioner was not given a Miranda warning. Relevant
excerpts of the CBA are attached as Exhibit 3.
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53. On August 31, 2023, Deputy Chief Springer provided Petitioner with an Intra-
Departmental Correspondence stating that “GPD is investigating an anonymous citizen complaint
from a person who purports to live in your prior neighborhood (Old County Road). As was
presented to you in the interview on August 31, 2023, the complainant alleges that you were at
home, with a police vehicle in your driveway, for extended periods of time, and you did not
respond to racing ATVs and gambling issues in the neighborhood. Our primary concern relates to
the allegation that you were at your home while you were supposed to be on duty as a Sergeant.”
A copy of the Intra-Departmental Correspondence is attached as Exhibit 4.
54. On August 31, 2023, Petitioner was served with “Suspension Orders” stating that
he was suspended with pay pending the resolution of an internal investigation “surrounding
allegations of serious misconduct.” A copy of the Suspension Orders is attached as Exhibit 5.
55. At this point, Petitioner recognized that the Respondent would continue to retaliate
against him for refusing to go along with the cover-up on the Chief’s crash and for purportedly
“suing the Town.” Petitioner asked to resign from the GPD.
56. On September 2, 2023, Respondent agreed to accept that resignation in conjunction
with significant other relief as set forth in a proposed a Settlement Agreement and Release of
Claims. A copy of the proposed agreement is attached as Exhibit 6.
57. That Settlement Agreement stated “[a]t this stage of the Internal Investigation, it
has not been determined that (Petitioner) has engaged in misconduct as defined in 9 NYCRR
6056.2(h)(1).”
58. Petitioner did not sign the Settlement Agreement because he did not agree with
several proposed terms.
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59. On September 14, 2023, Petitioner received another Intra-Departmental
Correspondence reiterating that the GPD was “investigating an anonymous citizen complaint,” and
directing Petitioner to appear for another interview on September 18, 2023. A copy of the
correspondence is attached as Exhibit 7.
60. Petitioner appeared for this additional interview on September 18, 2023. He was
not given a Miranda warning.
61. On October 19, 2023, Petitioner resigned from the GPD so that he could move on
with his life and get back to work at a different department, recognizing that he could not advance
at the GPD and the retaliation would not stop.
62. New York decertification rules require that an agency must notify the DCJS
immediately upon the officer’s resignation or other separation from service. Immediately is
generally defined as “at once; instantly; or without intervening time or space.” Respondent did
not immediately contact DCJS to decertify Petitioner after he resigned.
63. After his resignation, the Albion Police Department (and, upon information and
belief, other agencies) notified Respondent that it needed Petitioner’s personnel record for
background check(s).
64. On November 1, 2023, Chief Michael Wood's secretary entered the DCJS portal
and reported Petitioner permanently decertified, reporting him as a removal for cause and citing
the following reasons: dishonesty, felony offense, and gross misconduct. A copy of the screenshot
is attached as Exhibit 8.
65. On November 8, 2023, Petitioner was informed by DCJS that he had been reported
as a removal for cause and his basic training certification was permanently invalidated.
66. Without a basic training certification, Petitioner cannot be hired as a police officer.
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67. After Petitioner had resigned and after it had reported Petitioner Je, removal for
cause,” Respondent provided DCJS with a 20-page “summary” report dated October 30, 2023.
The capricious nature of the summary is exemplified by its lack of any explanation as to why the
GPD would continue an investigation into a former employee’s time at a former residence.
68. This report was never presented to Petitioner before he resigned, and contained
additional information, conjecture and allegations which Petitioner had not been notified of before
his resignation. Similarly, Petitioner had no opportunity to verify or otherwise respond to such
information.
69. Following Petitioner’s resignation, on October 31, 2023, Chief Wood sent an e-
mail to the entire Police Department which contained the following warning, apparently in
reference to Petitioner’s whistleblowing: “{djon’t conduct rogue investigations of your
colleagues.”
FIRST CAUSE OF ACTION
UNDER CPLR § 7803(3)
70. Petitioner hereby realleges and restates as if fully set forth herein all of the
allegations set forth in the preceding paragraphs.
71. On November 1, 2023, Respondent determined and reported to DCJS that
Petitioner was “removed for cause,” pursuant to 9 NYCRR § 6056.4(d), as defined in 9 NYCRR
§ 6056.2(h).
72. “Removal for cause” is defined as “when an officer has an interruption in service
... subsequent to and in connection with allegations of misconduct as defined in paragraph (1) of
this subdivision which are known or should be known to the employer or any officer or employee
of the employer agency or is being investigated by another agency or entity.”
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73. Respondent’s determination and report to DCJS were arbitrary, capricious, and
contrary to law because, at the time Petitioner resigned, he had not been subject to “allegations”
of “misconduct” as defined in 9 NYCRR § 6056.2(h)(1).
74. Respondent’s determination and report to DCJS were arbitrary, capricious, and
contrary to law because they were for the illegal purpose of retaliation for Petitioner’s
whistleblowing protected by N.Y. Civil Service Law § 75-b.
SECOND CAUSE OF ACTION
UNDER N.Y. CIVIL SERVICE LAW § 75-b
75. Petitioner hereby realleges and restates as if fully set forth herein all of the
allegations set forth in the preceding paragraphs.
76. At all relevant times before his resignation, Petitioner was a public employee
covered under N.Y. Civil Service Law § 75-b.
77. At all relevant times, Respondent was a public employer covered under N.Y. Civil
Service Law § 75-b.
7B. At all relevant times, Acting Deputy Chief Ryan Parina, Joseph Morabito, and
Chief Michael Wood were “governmental bodies” within the meaning of Civil Service Law § 75-
b
79. On November 11, 2021, Petitioner reported to his supervisor, Acting Deputy Chief
Ryan Parina, that he believed government officials, including police officers and high-ranking
members of Town administration, had engaged in an attempted cover-up of a crime.
80. On December 8, 2021, Petitioner reported to Joseph Morabito, who was authorized
to conduct an investigation on behalf of the Town, that he believed government officials, including
police officers and high-ranking members of Town administration, had engaged in an attempted
cover-up of a crime.
lt
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81. On March 17, 2022, Petitioner served a Notice of Claim on Respondent, alleging
retaliation for whistleblowing, among other claims.
82. Petitioner had a good faith basis for believing that a cover-up had taken place or
been attempted.
83. Petitioner suffered adverse personnel actions.
84. Following Petitioner’s reports, he was repeatedly passed over for promotions for
which he was qualified. Respondent suspended him and opened an internal investigation,
eventually causing Petitioner to be constructively discharged as he believed he had no chance for
advancement and Respondent’s retaliation would not stop.
85. The adverse personnel actions were causally related to Petitioner’s reports of
improper governmental action.
86. Petitioner was told by supervisors, including Chief Wood, that his Notice of Claim
against the Respondent was the reason he would not be promoted.
87. Following Petitioner’s resignation, Chief Wood sent an e-mail to the entire Police
Department which included the warning, “do not conduct rogue investigations of your colleagues,”
apparently referring to Petitioner’s whistleblowing.
88. As a direct and proximate result of Respondent’s retaliatory actions, Petitioner has
suffered economic damages in an amount to be determined by a trier of fact, including lost
compensation and benefits.
89. Petitioner is also entitled to the recovery of reasonable attorney’s fees pursuant to
New York Civil Service Law § 75-b.
PRAYER FOR RELIEF;
WHEREFORE, Petitioner prays that this Court grant the following relief against the
Respondent:
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Annul and invalidate Respondent’s determination that Petitioner was “removed for
cause” as defined in 9 NYCRR § 6056.2(h);
Require Respondent to reclassify Petitioner’s reason for ceasing service as
“resignation” under 9 NYCRR § 6056.4(d);
Damages for lost wages and benefits in an amount to be determined at trial;
Attorney’s fees and costs associated with this action; and
Any and all other relief that this Court deems just and proper.
Dated: March 1, 2024 ABRAMS FENSTERMAN, LLP
Rochester, New York
/s/ Maureen T. Bass
Maureen T. Bass
Alexander J. Fantauzzo
2280 East Ave, First Floor
Rochester, New York 14610
Attorneys for Petitioner
Tel: (585) 218-9999
Email: mbass@abramslaw.com
afantauzzo@abramslaw.com
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VERIFICATION
STATE OF NEW YORK )
COUNTY OF MONROE ) ss:
Bryan Root, being duly sworn, deposes and says that deponent has read the foregoing
Verified Petition and knows the contents therein; that the same is true to deponent’s own
knowledge, except as to the matters therein stated to be alleged on information and belief, and that
as to those matters the deponent believes the contents to be true.
LAE
BRAN ROOT
Sworn to before me this
day of ch 2024,
[outer « “Bass
Notary Public
MAUREEN BASS
NOTARY PUBLIC, State of New York
No. 028; 113,
Qualified in Erie County
‘Commission Expires November 16, 2024
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INDEX NO. E2024003968 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/01/2024 MONROE COUNTY CLERK’S OFFICE THIS IS NOT A BILL. THIS IS YOUR RECEIPT. Receipt # 3766687 Book Page CIVIL Return To: No. Pages: 15 MAUREEN T. BASS 2280 East Avenue Instrument: EFILING INDEX NUMBER First Floor Rochester, NY 14610 Control #: 202403040761 Index #: E202400396: Date: 03/04/2024 Root, Bryan Time: 12:17:55 PM Town of Greece State Fee Index Number $165.00 County Fee Index Number $26.00 State Fee Cultural Education $14.25 State Fee Records $4.75 Employee: CW Management Total Fees Paid: $210.00 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 WON 1 of 15 rp 40 MONRO OUN NK Ho ‘Z DM C! 22893040061 E2024003968 NYSCEF BOC. NO. 1 RECEIVED NYSCEF: 03/01/2024 STATE OF NEW YORK SUPREME COURT: COUNTY OF MONROE BRYAN ROOT, Petitioner, Index No.: VERIFIED PETITION VS. TOWN OF GREECE, Respondent. Petitioner BRYAN ROOT, by and through his attorneys, Abrams Fensterman, LLP, Maureen T. Bass, Esq. and Alexander Fantauzzo, Esq., for his Verified Petition under Article 78 of the Civil Practice Law and Rules against the Town of Greece (“Respondent” or “Greece’’), affirms under penalty of perjury that the following is true and accurate: NATURE OF THE PROCEEDING 1 This is a hybrid Article 78 proceeding seeking to declare Respondent’s report decertifying Petitioner to the Division of Criminal Justice (“DCJS”) as unlawful, arbitrary, capricious and beyond its authority. It also seeks damages as his constructive discharge was the result of unlawful retaliation in connection with his whistleblowing relating to the cover-up of the former Police Chief's fleet vehicle crash. JURISDICTION 2 This Court has jurisdiction to hear this matter under Article 78 and Section 3001 of the New York State Civil Practice Law and Rules. PARTIES 3 Petitioner Bryan Root is a resident of the County of Monroe, State of New York. 4 Respondent Greece is a municipality of the State of New York. 2 of 15 MONRO OUN NK 93/0 ‘Z DM C! 22893040061 E2024003968 NYSCEF BOC. NO. 1 RECEIVED NYSCEF: 03/01/2024 FACTUAL ALLEGATIONS Petitioner 5 Petitioner was born and raised in the Town of Greece. In 2005, he left to serve his Country as a United States Marine. 6 In 2010, Petitioner returned home after serving tours in both Afghanistan and Iraq. 7 On August 30, 2010, Petitioner joined the Town of Greece Police Department (“GPD” or “Police Department.”) 8 Petitioner protected and served Greece’s residents with distinction. In annual evaluations, supervisors praised Petitioner for his integrity, leadership and skill. Supervisors recognized his efforts with numerous awards including two Platoon Unit Commendations, three Officer of the Month, two Excellent Police Service, and ten Chief’s Letter of Recognition. 9 Monroe County also awarded Petitioner five Stop DWI Certificates of Appreciation in connection with an estimated one hundred and thirty-six DWI arrests between the years of 2011 and 2015. 10. In 2015, the Respondent promoted Petitioner to Sergeant after finding him worthy and competent of leading, training and supervising platoons of officers. 11. On October 20, 2021, Petitioner was one of a few individuals at the GPD on the list of Sergeants eligible for promotion to Lieutenant. The Crash and Cover-Up 12. On or about Thursday, October 21, 2021 and days before a Town Supervisor election, Respondent’s Chief of Police was involved in a fleet vehicle crash. 3 of 15 MONRO OUN kK 93/0 ‘Z DIV C! 22893040061 E2024003968 NYSCEF BOC. NO. 1 RECEIVED NYSCEF: 03/01/2024 13. On Friday, October 22, 2021, Petitioner reported to work and learned about the circumstances of the crash and GPD’s investigation. Petitioner preserved certain details of the crash including taking photographs of the vehicle. One of those photographs was later given to the edia by a third party. 14. The photograph proved that Respondent had covered up and downplayed details of the crash, presumably to lessen any impact it could have on its Town Supervisor’s re-election bid. 15. On Saturday, October 23, 2021, the GPD’s Deputy Chiefs were ordered to determine and disclose the identity of the whistleblower who took the photograph. 16. Concerned that they had been ordered to do something illegal or improper, Greece’s Deputy Police Chiefs made a report to Respondent’s Town Attorney and asked the Monroe County District Attorney to become involved in the matter. 17. On Sunday, October 24, 2021, Respondent knew that Petitioner was the employee who took the photograph. The Retaliation 18. On Monday, October 25, 2021, Petitioner was passed over for promotion to Acting Lieutenant. 19. On Tuesday, November 9, 2021, Petitioner was passed over for promotion to Acting Lieutenant. 20. On Thursday, November 11, 2021, Petitioner met with his supervisor, Acting Deputy Chief Ryan Parina, to report his continuing concerns about Respondent’s cover-up and his concern that he was being treated differently as a result of his efforts to expose the cover-up. 21. On Saturday, November 13, 2021, Petitioner was passed over for promotion to Lieutenant. 4 of 15 MONRO OUN NK 93/0 ‘Z DM C! 22893040061 E2024003968 NYSCEF BOC. NO. 1 RECEIVED NYSCEF: 03/01/2024 22. On November 30, 2021, Petitioner learned he was the target of an internal investigation. In over a decade of service, Petitioner had never been the target of an investigation. 23. On December 1, 2021, Petitioner received a Notice of Internal Affairs Investigation. 24, On December 5, 2021, Petitioner was passed over for promotion to Lieutenant. 25. On December 8, 2021, Petitioner eppeared for compelled testimony before Joseph. Morabito, who had been authorized by Respondent to investigate the crash and surrounding circumstances. Petitioner testified that he believed employees and/or officials of Respondent had. orchestrated a cover-up and asserted that his decision to expose the cover-up was an obligation to his oath of office. 26. On December 16, 2021, Respondent’s attorney Karlee Bolaiios told Petitioner that his whistleblowing actions in disclosing the cover-up were “egregious in bringing great embarrassment to the town and police department.” She further advised him that he would be suspended for thirty days. 27. In contrast, the Lieutenant who responded to the crash and performed no sobriety tests on the Chief who ultimately pleaded guilty to DWAI, received only a ten-day suspension. 28. On December 17, 2021, Karlee Bolafios told Petitioner that if he did not accept the punishment, he would be brought up on charges and that he could be arrested for “meddling with public election laws.” Fearing criminal prosecution and the loss of his pension and career, Petitioner accepted the punishment. 29. On February 2, 2022, Petitioner returned to work. 30. At this time, all of these events had taken a significant toll on Petitioner’s physical and mental health. 5 of 15 MONRO OUN NK 93/0 ‘Z DM C! 22893040061 E2024003968 NYSCEF BOC. NO. 1 RECEIVED NYSCEF: 03/01/2024 31. On February 7, 2022 after completing his suspension, Petitioner reported to Chief Michael Wood and was served with a formal written suspension — the first in his career. During that same meeting, Chief Michael Wood told Petitioner he had a “clean slate” with him, but not necessarily with Respondent. 32. Petitioner understood that statement to mean that the Respondent would hold Petitioner’s whistleblowing activities against him. 33. On March 17, 2022, Petitioner served a Notice of Claim against the Respondent. A copy of the Notice of Claim is attached as Exhibit 1. 34, On May 19, 2022, Petitioner was passed over for promotion to Lieutenant. 35. On June 23, 2022, Petitioner was passed over for promotion to Lieutenant. 36. In July 2022, Deputy Chief Naser Zenelovic told Petitioner that Bill Reilich, the Town Supervisor who was up for re-election when Petitioner exposed the cover-up, received an anonymous complaint from a citizen complaining about ATVs and gambling in Petitioner’s neighborhood. The anonymous complaint also made a reference to Petitioner’s fleet vehicle in his home’s driveway. 37. Deputy Chief Zenelovic ordered Petitioner to set up an ATV detail. Upon information and belief, no investigation was opened into the location of Respondent’s fleet vehicle because Sergeants were allowed to perform their duties from any location within the Greece town limits. 38. At that time, as a Sergeant, Petitioner reported to Lieutenant Visconte and Deputy Chief Zenelovic, and in connection with their obligations to supervise Petitioner, both individuals believed that Petitioner was successfully performing his job. 6 of 15 MONRO OUN kK 93/0 ‘Z DIV C! 22893040061 E2024003968 NYSCEF BOC. NO. 1 RECEIVED NYSCEF: 03/01/2024 39. In October 2022, Lieutenant Visconte and Deputy Chief Zenelovic completed Petitioner’s evaluations including: a. Lieutenant Visconte stated, “my observations, opinions and conclusions of [Petitioner’s] job performance lead me to the conclusion he has been [an] exemplary sergeant” and he has “accomplished and exceeded my expectations.” Lieutenant Visconte went on to cite Petitioner’s character and unwavering dedication to the department. Deputy Chief Zenelovic concurred with Lieutenant Visconte’s findings. He went on to state that Petitioner is “active in his supervision and routinely responds to in- progress calls with his officers.” Deputy Chief Zenelovic praised Petitioner for spearheading a project, eagerly volunteering, accepting a challenge and working diligently on a project for the betterment of the department. 40. On January 1, 2023, Petitioner’s supervisor was changed to the Lieutenant who Petitioner believed was involved in the cover-up of the former Chief's crash. 41. On January 1, 2023, Petitioner was passed over for promotion to Lieutenant. 42. On January 26, 2023, Petitioner was passed over for promotion to Lieutenant. 43. On March 30, 2023, Petitioner was passed over for promotion when a captain position was created for a transfer into the GPD. 44. On April 20, 2023, Petitioner was passed over for promotion to Lieutenant. 45. In May 2023, Petitioner’s supervisor, Lieutenant Potter, told him that “they [the administration] said they won’t promote you while you’re suing the town, but I'll never repeat that.” 46. In May 2023, Petitioner moved from away from his neighborhood. 7 of 15 MONRO OUN kK 93/0 ‘Z DIV C! 22893040061 E2024003968 NYSCEF BOC. NO. 1 RECEIVED NYSCEF: 03/01/2024 47. On June 26, 2023, Petitioner was passed over for promotion to Lieutenant. 48. In early August 2023, Petitioner requested a meeting with Chief Michael Wood to plead with him that he had paid a sufficient penalty for exposing the cover-up and seek guidance about what he could do to be eligible for promotion. 49. Chief Wood expressed surprise that Petitioner was asking to be considered for a promotion since he was “suing the town.” 50. On August 28, 2023, Deputy Chief Springer interviewed Lieutenants Potter and Visconte about Petitioner, allegedly to “determine if (Petitioner)’s supervisors were aware and have given approval for (Petitioner) to remain at his residence for extended periods of time while on duty.” These interviews were only ten months after Petitioner’s evaluations in which both his supervising Lieutenant and Deputy Chief made no mention about Petitioner remaining at his residence for extended periods of time. Si. On August 28, 2023, Deputy Chief Springer advised Petitioner that the GPD was “4nvestigating an anonymous citizen complaint from a person in your prior neighborhood about activities in the neighborhood.” As noted, this was Petitioner’s prior neighborhood as he had moved several months earlier. A copy of the Intra-Departmental Correspondence is attached as Exhibit 2. 52. On August 31, 2023, Petitioner appeared for his compelled interview. Petitioner’s Union CBA requires that “[iJn all criminal investigations, the members nvust be given the Miranda warning prior to any investigation.” The Agreement between The Town of Greece and The Gold Badge Club, Article 24, Section 12. Petitioner was not given a Miranda warning. Relevant excerpts of the CBA are attached as Exhibit 3. 8 of 15 MONRO OUN kK 93/0 ‘Z DIV C! 22893040061 E2024003968 NYSCEF BOC. NO. 1 RECEIVED NYSCEF: 03/01/2024 53. On August 31, 2023, Deputy Chief Springer provided Petitioner with an Intra- Departmental Correspondence stating that “GPD is investigating an anonymous citizen complaint from a person who purports to live in your prior neighborhood (Old County Road). As was presented to you in the interview on August 31, 2023, the complainant alleges that you were at home, with a police vehicle in your driveway, for extended periods of time, and you did not respond to racing ATVs and gambling issues in the neighborhood. Our primary concern relates to the allegation that you were at your home while you were supposed to be on duty as a Sergeant.” A copy of the Intra-Departmental Correspondence is attached as Exhibit 4. 54. On August 31, 2023, Petitioner was served with “Suspension Orders” stating that he was suspended with pay pending the resolution of an internal investigation “surrounding allegations of serious misconduct.” A copy of the Suspension Orders is attached as Exhibit 5. 55. At this point, Petitioner recognized that the Respondent would continue to retaliate against him for refusing to go along with the cover-up on the Chief’s crash and for purportedly “suing the Town.” Petitioner asked to resign from the GPD. 56. On September 2, 2023, Respondent agreed to accept that resignation in conjunction with significant other relief as set forth in a proposed a Settlement Agreement and Release of Claims. A copy of the proposed agreement is attached as Exhibit 6. 57. That Settlement Agreement stated “[a]t this stage of the Internal Investigation, it has not been determined that (Petitioner) has engaged in misconduct as defined in 9 NYCRR 6056.2(h)(1).” 58. Petitioner did not sign the Settlement Agreement because he did not agree with several proposed terms. 9 of 15 MONRO OUN kK 93/0 ‘Z DIV C! 22893040061 E2024003968 NYSCEF BOC. NO. 1 RECEIVED NYSCEF: 03/01/2024 59. On September 14, 2023, Petitioner received another Intra-Departmental Correspondence reiterating that the GPD was “investigating an anonymous citizen complaint,” and directing Petitioner to appear for another interview on September 18, 2023. A copy of the correspondence is attached as Exhibit 7. 60. Petitioner appeared for this additional interview on September 18, 2023. He was not given a Miranda warning. 61. On October 19, 2023, Petitioner resigned from the GPD so that he could move on with his life and get back to work at a different department, recognizing that he could not advance at the GPD and the retaliation would not stop. 62. New York decertification rules require that an agency must notify the DCJS immediately upon the officer’s resignation or other separation from service. Immediately is generally defined as “at once; instantly; or without intervening time or space.” Respondent did not immediately contact DCJS to decertify Petitioner after he resigned. 63. After his resignation, the Albion Police Department (and, upon information and belief, other agencies) notified Respondent that it needed Petitioner’s personnel record for background check(s). 64. On November 1, 2023, Chief Michael Wood's secretary entered the DCJS portal and reported Petitioner permanently decertified, reporting him as a removal for cause and citing the following reasons: dishonesty, felony offense, and gross misconduct. A copy of the screenshot is attached as Exhibit 8. 65. On November 8, 2023, Petitioner was informed by DCJS that he had been reported as a removal for cause and his basic training certification was permanently invalidated. 66. Without a basic training certification, Petitioner cannot be hired as a police officer. 10 of 15 MONRO OUN NK 93/0 ‘Z DM C! 22893040061 E2024003968 NYSCEF BOC. NO. 1 RECEIVED NYSCEF: 03/01/2024 67. After Petitioner had resigned and after it had reported Petitioner Je, removal for cause,” Respondent provided DCJS with a 20-page “summary” report dated October 30, 2023. The capricious nature of the summary is exemplified by its lack of any explanation as to why the GPD would continue an investigation into a former employee’s time at a former residence. 68. This report was never presented to Petitioner before he resigned, and contained additional information, conjecture and allegations which Petitioner had not been notified of before his resignation. Similarly, Petitioner had no opportunity to verify or otherwise respond to such information. 69. Following Petitioner’s resignation, on October 31, 2023, Chief Wood sent an e- mail to the entire Police Department which contained the following warning, apparently in reference to Petitioner’s whistleblowing: “{djon’t conduct rogue investigations of your colleagues.” FIRST CAUSE OF ACTION UNDER CPLR § 7803(3) 70. Petitioner hereby realleges and restates as if fully set forth herein all of the allegations set forth in the preceding paragraphs. 71. On November 1, 2023, Respondent determined and reported to DCJS that Petitioner was “removed for cause,” pursuant to 9 NYCRR § 6056.4(d), as defined in 9 NYCRR § 6056.2(h). 72. “Removal for cause” is defined as “when an officer has an interruption in service ... subsequent to and in connection with allegations of misconduct as defined in paragraph (1) of this subdivision which are known or should be known to the employer or any officer or employee of the employer agency or is being investigated by another agency or entity.” 10 11 of 15 rp 40 MONRO OUN NK Ho ‘Z DM C! 22893040061 E2024003968 NYSCEF BOC. NO. 1 RECEIVED NYSCEF: 03/01/2024 73. Respondent’s determination and report to DCJS were arbitrary, capricious, and contrary to law because, at the time Petitioner resigned, he had not been subject to “allegations” of “misconduct” as defined in 9 NYCRR § 6056.2(h)(1). 74. Respondent’s determination and report to DCJS were arbitrary, capricious, and contrary to law because they were for the illegal purpose of retaliation for Petitioner’s whistleblowing protected by N.Y. Civil Service Law § 75-b. SECOND CAUSE OF ACTION UNDER N.Y. CIVIL SERVICE LAW § 75-b 75. Petitioner hereby realleges and restates as if fully set forth herein all of the allegations set forth in the preceding paragraphs. 76. At all relevant times before his resignation, Petitioner was a public employee covered under N.Y. Civil Service Law § 75-b. 77. At all relevant times, Respondent was a public employer covered under N.Y. Civil Service Law § 75-b. 7B. At all relevant times, Acting Deputy Chief Ryan Parina, Joseph Morabito, and Chief Michael Wood were “governmental bodies” within the meaning of Civil Service Law § 75- b 79. On November 11, 2021, Petitioner reported to his supervisor, Acting Deputy Chief Ryan Parina, that he believed government officials, including police officers and high-ranking members of Town administration, had engaged in an attempted cover-up of a crime. 80. On December 8, 2021, Petitioner reported to Joseph Morabito, who was authorized to conduct an investigation on behalf of the Town, that he believed government officials, including police officers and high-ranking members of Town administration, had engaged in an attempted cover-up of a crime. lt 12 of 15 MONRO OUN kK 93/0 ‘Z DIV C! 22893040061 E2024003968 NYSCEF BOC. NO. 1 RECEIVED NYSCEF: 03/01/2024 81. On March 17, 2022, Petitioner served a Notice of Claim on Respondent, alleging retaliation for whistleblowing, among other claims. 82. Petitioner had a good faith basis for believing that a cover-up had taken place or been attempted. 83. Petitioner suffered adverse personnel actions. 84. Following Petitioner’s reports, he was repeatedly passed over for promotions for which he was qualified. Respondent suspended him and opened an internal investigation, eventually causing Petitioner to be constructively discharged as he believed he had no chance for advancement and Respondent’s retaliation would not stop. 85. The adverse personnel actions were causally related to Petitioner’s reports of improper governmental action. 86. Petitioner was told by supervisors, including Chief Wood, that his Notice of Claim against the Respondent was the reason he would not be promoted. 87. Following Petitioner’s resignation, Chief Wood sent an e-mail to the entire Police Department which included the warning, “do not conduct rogue investigations of your colleagues,” apparently referring to Petitioner’s whistleblowing. 88. As a direct and proximate result of Respondent’s retaliatory actions, Petitioner has suffered economic damages in an amount to be determined by a trier of fact, including lost compensation and benefits. 89. Petitioner is also entitled to the recovery of reasonable attorney’s fees pursuant to New York Civil Service Law § 75-b. PRAYER FOR RELIEF; WHEREFORE, Petitioner prays that this Court grant the following relief against the Respondent: 12 13 of 15 MONRO OUN kK 93/0 ‘Z DIV C! 22893040061 E2024003968 NYSCEF BOC. NO. 1 RECEIVED NYSCEF: 03/01/2024 Annul and invalidate Respondent’s determination that Petitioner was “removed for cause” as defined in 9 NYCRR § 6056.2(h); Require Respondent to reclassify Petitioner’s reason for ceasing service as “resignation” under 9 NYCRR § 6056.4(d); Damages for lost wages and benefits in an amount to be determined at trial; Attorney’s fees and costs associated with this action; and Any and all other relief that this Court deems just and proper. Dated: March 1, 2024 ABRAMS FENSTERMAN, LLP Rochester, New York /s/ Maureen T. Bass Maureen T. Bass Alexander J. Fantauzzo 2280 East Ave, First Floor Rochester, New York 14610 Attorneys for Petitioner Tel: (585) 218-9999 Email: mbass@abramslaw.com afantauzzo@abramslaw.com 13 14 of 15 C! 22893040061 E2024003968 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/01/2024 VERIFICATION STATE OF NEW YORK ) COUNTY OF MONROE ) ss: Bryan Root, being duly sworn, deposes and says that deponent has read the foregoing Verified Petition and knows the contents therein; that the same is true to deponent’s own knowledge, except as to the matters therein stated to be alleged on information and belief, and that as to those matters the deponent believes the contents to be true. LAE BRAN ROOT Sworn to before me this day of ch 2024, [outer « “Bass Notary Public MAUREEN BASS NOTARY PUBLIC, State of New York No. 028; 113, Qualified in Erie County ‘Commission Expires November 16, 2024 14 15 of 15