MacFarlane Rd. VE RGILIS, STENGER, ROBERTS, PERGAMENT & VIGLOTTi,LLP
ATTORNEYS AND COUNSELORS AT LAW
1136 ROUTE 9
GERALD A.VERGILIS* WAPPINGERS FALLS,NEW YORK 12590 OF COUNSEL:
KENNETH M.STENGER (845)298-2000 IRA A.PERGAMENT
ALBERT R ROBERTS LEGAL ASSISTANT.
LOUIS J.VIGLOTTI FAX(845)298-2842 AMY E.DECARLO
JOAN R GARRETT" e-mail:VSRP@BestWeb.nct
THOMAS R.DAVIS POUGHKEEPSIE OFT-ICE
EMANUEL F.SARIS 276 MAIN MALL
POUGHKEEPSIE,NY 12601
KAREN P.MACNISH (845)452-1046
KEVIN T.McDERMOTT
STEVEN K.PATIERSON PINE PLAINS OFFICE
JAY B.RENFRO 2990 CHURCH ST
P.O.BOX 21
*ADMITTED TO PRACTICE PINE PLAINS,NY 12567
IN NY&FLX (518)398-9857
-*ADMIM,DTO PRACTICE
IN NY&CONN. ADDRESS KFPCYTO: POUGHIUBPSIF
I WAPPINUFRS
PINE PLAINS
July 20, 2004
Town Board
Town of Wappinger
20 Middlebush Road
Wappingers Falls, New York 12590
Re: Stop Signs at MacFarland Road and Beechwood Circle
File No.: 12951.0728
Dear Town Board Members:
In connection with the stop sign issues on MacFarland Road, I enclose herewith research
memorandum prepared by Karen MacNish of my office. The Board may wish to
consider this before releasing Jay Paggi's letter of June 28, 2004.
If you wish, we may wish to discuss this in Executive Session.
Very truly yours,
VERG144 , STENGER, ROBERTS, PERGAMENT & VIGLOTTI, LLP
ALB RROBERTS
APR/bg
cc: Joseph E. Paggi, Jr,, P.E. El V 1-7:
JUL 2 1201
""")WN
11Vsrp03\Common\Wappjnger\Town Board\LOCAL LAW1StopSign12004k072004-TBjep.doc
VERGILIS, STEIN GER, RoBERTS, PERGAMENT & VIGLOTTI,LLP
ATTORNEYS AND COUNSELORS AT LAW
1136 ROUTE 9
GERALD A.VERGILIS" WAPPINGERS FALLS,NEW YORK 12590 OF COUNSEL;
KENNETH M.STENGER IRA A.PERGAMENS
ALBERT P ROBERrS (II45)298-2000
LEGAL A55ISTANT:
LOUIS J.VIGLOTTI PAX(845)298-2842 AMY E,DECARLO
7OAN R GARRETT** ——
e-mail;VSRP®BestWeb,get
TIIOMAS R.DAVIS POUGHKEePSI$OFFICE
EMANIJ EL F.SARIS 276 MAIN MALL
POUGHKEEPSIE,NY 12601
KAREN P.MACNISH (845)452-1046
KEVIN T.MCDERMOTT
STEVEN K.PATTERSON PINE PLAINS OFFICE
2990 CHURCH ST.
JAY B.RENFRO P.D.BOX 21
*ADMITTED TO PRACTICE PINE PLAINS,NY 12567
IN NY&FLA. (518)398-9857
**.ADMITTED TO PRACTICE
IN NY&CONN. ADDRESS REPIY TO:( )POUGHKEEPSIE
( )WAPPINGERS
( )PINE PLAINS
MEMORANDUM
Privileged and Confidential
TO: Town Board of the Town of Wappinger
Joseph E. Paggi, Jr., Jr., P.E.
cc: Albert P. Roberts
FROM: Karen P. MacNish
RE: MacFarlane Road and Beechwood Drive Stop Signs
File No.: 12951.0728
DATE: July 19, 2004
Al requested that I review and comment on Jay Paggi's letter of June 28, 2004. After
reading same, 1 believe part of the Paggi letter must be made available for public
inspection pursuant to FOIL, and part of it may be exempted.
I think the applicable FOIL section is Public Officers Law 87(2)(g). It states:
"(2) Each agency shall., in accordance with its published rules, make available for
public inspections and copying all records, except that such agency may deny access to
records or portions thereof that
(g) are inter-agency or intra-agency materials which are not:
i. statistical or factual tabulations or data;
ii. instructions to staff that affect the public [or]
iii. final agency policy or determinations"
If the niter-agency or intra-agency material is something like a letter or memorandum
which gives opinions, advice, evaluations, deliberations, proposals, policy formulations,
conclusions or recommendations, it may be withheld from public disclosure. See, e.g.,
Town of Oyster BE V. Williams, 134 A.D.2d 267 (2d Dep't, 1987).
As well, it has been held that material from an outside expert or consultant given to a
public agency at its request (such as for it to be part of the agency's deliberative process),
qualifies as inter-agency or intra-agency material that can be exempted from public
review. See, e.g., Bray v.Mar, 106 A.D.2d 311 (1"Dep't, 1984); and Xerox_Corp._V.
Town of Webster, 65 N.Y.2d 131 (1985).
In reviewing the Paggi letter, I note that some of it consists of just factual tabulations or
data, while other parts of it give opinions and.recommendations. The factual tabulations
are items such as sight distance measurements. The recommendations include where to
place stop signs and where not to place them, and why.
In my opinion, if the Town wants to exempt the parts of the Paggi letter which contain
opinions, recommendations and the like from public disclosure, it is permitted to do so
under Public Officers Law 87(2)(g). However, as for the factual calculations contained
in the letter, those should be made available for public inspection. If need be, the
sections of the letter not subject to public disclosure can be redacted before public
inspection.
My opinion assumes, of course, that the Paggi letter is not a final determination or policy,
but is only to be used by the Town Board for its use in making the final determination on
the issues discussed in the Paggi letter. If, however, the Paggi letter is final determination
or policy, it should be subject to public disclosure as referenced in the statute, above.
I have attached relevant cases, and a section from NY 3ur.2d, for your reference.
If you have any further questions on this, please let me know.
134 A.D.2d 267 Page 1 of 1
520 N.Y.S.2d 599
a vv...V aiwi n ,l Rep.orV r.5yst.em_ve.r5stp.n
In the Matter of Town of Oyster Bay, Appellant,
V.
Henry G. Williams et al., Respondents.
Supreme Court, Appellate Division, Second Department, New York
November 2, 1987
OPINION OF THE COURT
Mangano, J. P., Thompson, Lawrence and Harwood, JJ., concur.
In a proceeding pursuant to CPLR article 78 to review the denial by the respondents of access to
certain documents, the petitioner appeals from a judgment of the Supreme Court, Nassau County
(Levitt, J.), dated July 1, 1986, which dismissed the petition.
Ordered that the judgment is affirmed, without costs or disbursements.
The New York State Freedom of Information Law (Public Officers Lbw 85 et. seq.) requires
disclosure of the documents of a public agency unless that agency can convincingly demonstrate
that the documents fall squarely within one of the specific exemptions which are set forth in the
statute. To this end, Public 4ffirrs i a .w § 8.7..(2)..(g.). provides:
"2. Each agency shall, in accordance with its published rules, make available for public inspection
and copying all records, except that such agency may deny access to records or portions thereof
that
"(g) are inter-agency or antra-agency materials which are not:
"i, statistical or factual tabulations or data;
"IL instructions to staff that affect the public [or]
"iii. final agency policy or determinations".
The purpose of the exemption under,P.pb1.i_c.._Qfiflcef s...Law....§.._ .7...(Z..).,.(g.) is "to protect the deliberative
process of the government by ensuring that persons in an advisory role would be able to express
their opinions freely to agency decision makers" (see, Ma.rter,.o.f.., ea.Crest Constr,.,Crarp....Y Stub, n.g.,.
82_AL72,d a45�,_549.), *.2�6�
In the case at bar, after an In camera inspection of the documents in issue, we conclude that these
records fall squarely within the protection of Public.Off ice.r..s Law.. ..57.,(2)_.(.g.), insofar as they consist
only of opinions, advice, evaluations, deliberations, proposals, policy formulations, conclusions, or
recommendations (see, National l a!ior Relatrans Bd. v. Sears, Roebuck &Ca., 421 U.S 13Z)L,
Accordingly, these documents are exempt from public access, as government agency deliberative
functions would certainly be hindered by the disclosure of such subjective matter (see, Ma,tter.,of
McA..ulay v..0aard af.Edue,_,., i Ap2d,,1, ,48, affd 4"8 NY2d,._659.;. Ryan.Y, Depa,rtment.afJ..ustrce,...E�1y
F2d 78.1_)_ Moreover, with respect to the documents identified as F-6(1) and F-6(2), we conclude
that these are attorney-client communications, and, as such, are exempt from disclosure pursuant
to .Cp.LR (see, Matter of Grand Jury Subpoena [Bekrns..R( cord Start Co.J,_0 N..Y2d 3.2.,.4..)..,..
Copr. (c) 2004, Randy A. Daniels, Secretary of State, State of New York.
N,Y.A.D.,1987.
OYSTER BAY V WILLIAMS
END OF DOCUMENT
Copyright(C) 2004 West, a Thomson Business
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106 A.D.2d 311 Page i of 2
482 N.Y.S.2d 759
In the Matter of Paul M. Bray, Respondent,
V.
Laureen Mar, as Records Access Officer of New York State Council on the Arts,
Appellant.
Supreme Court, Appellate Division, First Department, New York
December 1.8, 1984
OPINION OF THE COURT
Concur -- Sandler, 3. P., Silverman, Fein and Kassal, 33,
Judgment, Supreme Court, New York County (D. H. Edwards, 3.), entered November 22, 1983,
granting in part CPLR article 78 petition to compel disclosure of certain records under Freedom of
Information Law (FOIL; Public Officers Law, art 6), is unanimously modified, on the law and the facts
and in the exercise of discretion, to the extent of striking the third decretal paragraph, and directing
that the all-purpose forms made available to petitioner under the second decretal paragraph shall be
subject to the deletions indicated in appellant's letter of October 26, 1982, and further directing that
the Panel Forms made available to petitioner under the fourth decretal paragraph shall be subject to
deletion of "comments"; and the judgment is otherwise affirmed, without costs. *312
Petitioner by letter requested appellant (respondent below) Records Access Officer of the New York
State Council on the Arts (the Council), to furnish certain records and information relative to the
grants by the Council to the Alliance of New York State Arts Councils, Inc., and the Albany League of
Arts during the council's 1980-1981 and 1981-1982 funding cycles. Appellant, by letter, of October
26, 1982, offered to make substantial specified records and information available to petitioner and
denied others.
In addition to other materials, appellant offered to furnish to petitioner copies of the so-called all-
purpose forms with delegations as to subjective opinions and recommendations of the staff, panel
and committee. It has declined to furnish the so-called panel and council committee
recommendation and council board approval forms (Panel Forms).
In this article 78 proceeding Special Term has directed that petitioner be furnished the all-purpose
forms without deletion of "any recommendations that ultimately formed the basis of the
determination made by" the Council, and that the Council also permit petitioner to inspect and copy
the Panel Forms.
The Council has appealed, and the Issue before us is whether the deletions made by appellant from
the all-purpose forms and the Panel Forms are exempt from disclosure under section 87 (subd 2,
par [g]) of the Public Officers Law. In our view, the material that the Council has offered complies
with its obligations under FOIL and the material deleted is exempt, except that petitioner is also
entitled to the Panel Forms with comments deleted.
Appellants contend that the materials declined come within the exemption of FOIL (.Public.officers.
subd 2, par [g]) for;
"Inter-agency or intra-agency materials which are not;
"i, statistical or factual tabulations or data;
"d. instructions to staff that affect the public; or
"Ill. final agency policy or determinations
We have in camera examined the available material which appellant declined to furnish and which
Special Term directed it to furnish. In our view that material (except as to parts of the Panel Forms)
falls within the exemptions. The material in question in the present case constitutes "intra-agency
materials". Obviously the staff and the committee of the Council are parts of the Council as an
agency. And the panel of outside experts may also be so considered in view of their functions in
*313 recommending the amount of grants. (Wu..._.v,,.National. ndowmen.tl.for.,Humar�tt..es.,...460.. ,F2d
10.30_;. cf. _Mat er of racu5e Clniked Neic�hbnrs v_, C t_Kof S�racuse,80...AD7d_984..)
There is no contention that these materials include instructions to staff that affect the public.
By its deletions, appellant has made a good-faith, and in our view, an adequate, attempt to leave
available for inspection by petitioner the factual data relating to the applicant while deleting
subjective opinions, discussions and recommendations of staff, panel and committee not required to
be disclosed, (See Mattet..of.,Mrracl,e Nfle Assnc. v."'Yudelson,..6.8 AD,2,d _176,,.._181.;.Taxation With,
Represeniaton..Fund.v,..Intarnal R�ve.ntae.5ery ,..64.�i F2.ri...656,..,6..77.)
The actions of staff, panels or committees do not represent "final agency policy or determinations",
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106 A.I}.2d311 Page 2nf2
except as they may be adopted by the Council. (See
whore the Supnarna Court held that reports by regional boards, and even
by divisions [i.e., cornrn|ttees] composed o[ members ofthe Renegotiation Board |tae|t did not
constitute final action of the Board though those were used by the full Board as e basis for
d|SCUos|VD, as only the full Board had the power to make the final decision.)
Even though recommendations aatn amount made by the panel and committee. were approved by
the Council, the reasoning of the staff, panel or committee does not represent final action by the
Council. What the Supreme Court said in Renegotiation Bd. v. 8Vrun7n7an Aircraft supra., p 184) is
applicable here: "[T]he evidence utterly fails tO support the conclusion that the reasoning in the
reports is adopted by the Board as its reasoning, even when it agrees with the conclusion of
report". (Accord M�1�e.[IQ�'M1��u./�y}<^-��ar.d..o.f��.ul�+-��'����-����, affdforreaaonostated |nApp
Div 48 Nj��1�659')
In any event, the documents du not contain any definitive statements of the reasons for the actions
of staff, panel, oornnn|tteo or council. There is a morn8vvhat discursive discussion in the all-purpose
forms. But the only definitive action taken is the approval of the amount of the grant. "The Fnaedorn
of Information Act imposes no independent obligation on agencies to write opinions. It simply
requires them to d|Sc|nae the opinions which they du wr|te. NLRB v. Sears, Roebuck & Co., ante, p
132. If the public Interest suffers by reason of the failure of the Board to explain some of its
decisions, the remedy |s for Congress LO require it to Uu so. It is riot for us to nyqu|ns disclosure of
documents, under the purported authority of the Act, which are *314 not final opinions, which do
nut accurately set forth the reasons for the Board's decisions, and the disclosure ofwhich would
|[np|Dge on the Board's predecis|ona| processes," (Renegotiation Bd. v. Grumman Aircraft, supra. at
p193.)
However, vvethink the panel and subcommittee recommendation and council board approval forms
(Panel Forms), with the exception of comments by panel or subcommittee, do represent final agency
determinations. They show on the same sheet the panel recommendation, the subcommittee
recommendation and the Council approval, which vv0u|d thus appear to be an adoption of the
naounl[nHndat|ons. These Panel Forms, with the deletion of comments, should be furnished, and we
so direct.
Finally, we confess to some puzzlement as to what all the fuss is about. We cannot see that the
Council would really be damaged by letting petitioner see all the deleted portions, 0r that the
petitioner is hindered by not seeing the deleted portions, although perhaps petitioner could not have
known this, '
Copr. (c) 2004, Randy A. Daniels, Secretary of State, State of New York.
N.Y./\.D./1984.
BRAY VMAR
END OFDOCUMENT
copyrioht(C) 2004 WeStr anmmsonBusiness
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195 Misc.2d 119 Page I of 5
754 N.Y.S.2d 517, 2003 N.Y. Slip Op. 23429
In the Matter of New York Times Company et al., Petitioners,
V.
City of New York Fire Department, Respondent.
Supreme Court, New York County,
February 4, 2003
HEADNOTES
Parties--Intervention--Disclosure of Oral Histories of Fire Department Personnel Concerning Events
of September 11, 2001
(1.) Nine families who lost a husband or son in the destruction of the World Trade Center on
September 11, 2001 may not intervene pursuant to CPLR 1013 in a CPLR article 76 proceeding
seeking disclosure under the Freedom of Information Law (FOIL) of transcripts of interviews
conducted by the New York City hire Department with members of the department concerning the
events of September 11, and the tapes and transcripts of emergency 911 telephone calls received
by fire department personnel on that day. The proposed intervenors seek to learn more information
as to the last moments of the lives of their family members. However, the proposed intervenors do
not have a legally cognizable claim to intervene (see CPLR 7802 [d]). The proposed intervenors
made no FOIL requests and thus have no article 78 claim. The proposed intervenors may appear as
amid curiae.
Records--Freedom of Information Law--Fire Department Records Concerning Events of September
11, 2001 -- Law Enforcement and Privacy Exemptions
(2) Petitioner is entitled to disclosure under the Freedom of Information Law (FOIL) of the factual
portions of interviews conducted by the New York City Fire Department with members of the
department concerning the events of September 11, 2001. Respondent failed to demonstrate that
the disclosure of only the factual portions of the oral histories would interfere with either law
enforcement investigations or judicial proceedings so as to preclude disclosure under FOIL's law
enforcement exception (Public Officers Law § 87 [2] [e]). Personal expressions of feelings in the oral
histories, as well as opinions and recommendations by those Interviewed remain exempt from
disclosure (Public Officers Law § 87 [2] [g]}, Furthermore, petitioner is entitled to disclosure of the
tapes and transcripts of the words of emergency 911 telephone dispatchers and operators on
September 11, except for communications which consist of intra-agency material, Tapes and
transcripts of the 911 calls made by members of the public are entitled to a privacy exemption
(Public Officers Law § 87 [2] [b]; § 89 [2] [b]), except for any calls made by the deceased family
members of the amid curiae.
TOTAL CLIENT SERVICE LIBRARY REFERENCES
Am J.u.r Zd..,..,Fre�do_m ofsfo.rmtfon Acks..§.§.._6.3, 74, 75., 309 3..1.8., 358; Parties §§ 160, 165, 167-
170, 173-176.
Carmody-Wait 2d, Parties §§ 19:250, 19:252, 19:255; Proceeding Against a Body or Officer §§
145:229, 145:230, 145:630, 145:634, 145:643.
McKin..ney.'s.,...CKR..1.013, 75.02; Public...Officers Law.§ 87 ( ), § 89 (2) *.120
NY Jur.2d,.Arti.cle..7B and.,Related.Prc)ceedln.gs.§§ 191 19n., P r i s..§.§..18$, 1,8,% 202 2Q5, 297;
Records and_Recordirg_§.§_45, 21, 33-3—, 39, 46-48, 51.
ANNOTATION REFERENCES
See ALR Index under Freedom of Information Acts; Intervention; 911 Emergency Number.
APPEARANCES OF COUNSEL
Norman Siegel, New York City, and McLaughlin & Stern, LLP, New York City, for Catherine T.
Regenhard and others, proposed petitioners-Intervenors. David E. McCraw, New York City, for
petitioners. Michael A. Cardozo, Corporation Counsel, New York City (Naomi Sheiner and Marilyn
Richter of counsel), for respondent.
OPINION OF THE COURT
Richard F. Braun, J.
The horrors of September 11, 2001 shall remain with those who experienced the events of that
infamous day, and the traumatic scars will only slowly heal up in part. The significant effects of
September it will continue to emanate profoundly for a long, long time.
This is a combined CPLR article 78 proceeding and declaratory judgment action brought by notice of
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195 Misc.2d 119 Wage 2 of 5
petition and verified petition in which petitioners seek a judgment pursuant to the Freedom of
Information Law (Public Officers Law art 6) declaring certain records subject to disclosure
thereunder, allowing petitioners to inspect and obtain copies of the records, and awarding to
petitioners litigation costs, including attorneys' fees. Petitioners are the New York Times Company,
which is the publisher of the New York Times, and Jim Dwyer (Dwyer), one of its reporters.
Respondent is the agency of the City of New York responsible for fire safety and certain emergency
services. On September 11, 2001, respondent sent thousands of its firefighters to the World Trade
Center after the buildings were attacked by terrorists, and, of the approximately 2,700 innocent
people who died there that day, 343 were firefighters.
As petitioners assert, they are seeking "release of certain materials of enormous historical
importance." Petitioner Dwyer, as a reporter for the New York Times, sent to respondent by e-mail a
letter requesting various records under the Freedom of Information Law (FOIL), including:*.121
"1. All transcripts of Interviews conducted by the department with members of the FDNY concerning
the events of Sept. 11, 2001. (These might be called 'oral histories.') ...
"3. Any and all tapes and transcripts of any and all radio communications involving any FDNY
personnel on Sept. 11, starting from 8:46 AM."
In the months following the World Trade Center tragedy, respondent conducted interviews of its
personnel in order to record promptly their recollections of their experiences on September 11.
According to respondent, approximately 511 oral histories have been recorded that respondent
intended to be "an invaluable historical record," and which would assist in investigations or
assessments of the event. These interviews of a wide range of respondent's employees, including
officers, chiefs, high level administrative personnel, firefighters, emergency medical technicians, and
paramedics were audiotaped and subsequently transcribed. "These were the "oral histories."
The "tapes and transcripts of any and all radio communications involving any FDNY personnel"
consist of emergency 911 telephone calls received by respondent (fire-related 911 calls are
forwarded to respondent by the police department communications technicians who receive them)
on September 11, its dispatch communications recorded on that day, tails from telephone operators
notifying respondent's units of the World Trade Center attacks, calls dispatching respondent's
apparatus and personnel to the scene, and reports back from units traveling to and at the World
Trade Center. respondent gives examples of (1) the content of a number of 911 emergency
telephone calls from people in the World Trade Center on September 11 after the airplane attacks
occurred, including from some callers on upper floors of the buildings, and (2) the gist of several of
the interviews conducted after the September 11 event.
Respondent granted petitioners' request in part and denied the request in part. The disclosure of the
oral histories was denied based on their being exempt from disclosure (1) pursuant to .Publ.ic_Offic�.rs
Law §�_82)( _()_, due to the ongoing criminal prosecution of Zacarias Moussaoui, the alleged so-
called 20th hijacker, (2) pursuant to PUbiic,O.Ffic rs..,Law..,., .._87,(_2..).....(g.), as nondiscoverable intra-
agency materials, and (3) pursuant to _Publ:c...Office.rs,.Law § 87_(2)..(_b.)., because the disclosure would
be an unwarranted invasion of privacy under Public..Officrs Law,. 8_ ...( ). The request for release of
tapes and *122 transcripts of radio communications was turned down on the first and third grounds
above. The denials were appealed, and the appeal was granted in part and denied in part. The
denials on appeal added as grounds to those of the original denials that disclosure would deprive
persons of the right to a fair trial, pursuant to Public Officers I�aw 87..(2) ..( )..(i.i,}, and that the tapes
and transcripts of radio transmissions were intra-agency materials not subject to disclosure. By
stipulation, respondent agreed that it does not assert that the intra-agency exemption applies "to
the 911 calls from the public." The administrative appellate decision was a final determination by
respondent, and thus this proceeding ensued.
Several proposed petitioners-intervenors moved to intervene as parties in this proceeding/action,
pursuant to C.PLR.,78.Q2...(.d), 1_p1.2, or 1'0"I3,; amend the "Summons and Complaint" to add them as
party petitioners; and allow them to serve their proposed verified petition; or, in the alternative,
permit them to appear as amici curiae in this proceeding. By stipulation, the parties agreed to the
latter relief and agreed to the "admission into the record" of the affidavits of the proposed
petition ers-€ntervenors.
The proposed petitioners-intervenors are nine persons each of whom had a husband or son who
perished in the destruction of the World Trade Center on September 11. One proposed petitioner-
intervenor had a firefighter son, four had husbands who worked for AON Corporation, one had a
husband who was employed by Fiduclary'Trust Company, one had a son employed by Cantor
Fitzgerald Incorporated, and two were parents of a son who was an employee of Bloomberg, LLP
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195 Misc.2d 119 Page 3 of 5
attending a conference at Windows on the World at 1 World Trade Center on September 11. Each
proposed petitioner-Intervenor seeks to intervene In support of the petition in order to learn more
information from the sought-after material as to the last moments of his or her husband's or son's
lives.
Intervention as of right, pursuant to CPLR._1.0,12.(b.)., is more limited than permissive intervention,
pursuant to .C..PLR,..1C115. MR 7a.02..(d) is the most liberal in that it permits "other interested
persons to intervene." (See Matter of. 91 _Z0
715, 72D_[199a1 [internal quotation marks omitted].) However, "interested" means more than
generally interested in the result of an article 78 proceeding. A person must have a legally
cognizable claim to Intervene under C.FLR.1a92.,..M. as a party intervenor in an article 78 proceeding
(see id. at 718, 720- 721; *123 Ferguson, v t3arrioS.Pao1.1,.-Z79 AD.2d. 396, �98 39,9... [1st Dept
2001]).
(1..) A party may assert a claim under FOIE_ in an article 78 proceeding where he or she has been
denied access to a requested record after exhausting his or her administrative appeals (Public
Officers i_aw..§ 9...[ i].,.Cb.]). Petitioners-intervenors made no such requests, and thus brought no such
administrative appeals. Therefore, they have no article 78 claim and cannot be permitted to
Intervene as parties to this proceeding. The parties and proposed intervenors have stipulated that
they may appear before this court as arnici curiae. That agreement included the admission of their
affidavits before the court for, consideration. Therefore, the family members have still played the
important role of bringing before the court their desires to waive any right of privacy which
respondent has attempted to assert on their behalf.
Under FOIL, there is "a broad standard of open disclosure" by government agencies, and documents
in government possession are presumed to be discoverable, unless the agency can demonstrate
that a specific statutory exemption bars disclosure (Matter of Manteca v New Ybrle StaY_ Dept. of
IQPkh,...._94..N.Y..z.. .... $.,.. . ....j1999j)..,.. Exemptions under FOIL_ must be construed narrowly, and the
government agency resisting disclosure has the burden of showing that an exemption applies
{Ma.[ter oP Hanrg..v.. ta#e...af lV,Y,,Dep .....of Mar`or.Vehlcle$,...79,NY2d 1.0.�., 109...[.1.992..]).,.
The parties dispute the meaning of "compiled for law enforcement purposes" in Pubik Officers L.awj
As the United States Supreme Court has held in lo'hn Doe../-gency v AV2fl pQ9...Corp,.....OK
Una 146., 153...[198.9..j.) in interpreting the same words in the law enforcement provision of the Federal
Freedom of Information Act, after which the FOIL clause was patterned (Mar"ter nf.F�nk,.v.,Lefl�aw,itz,
47 NY2d 567�5L/2_n_[.1_9 91] Matter of Legal Aid Sncy. v New York Crtx Palice ae� .�Z74 AD2d..2Q7,.
214 n...4 [Ist Dept 2.0001), "compiled" means the time when the reply to a FOIL request has to be
performed, not when the documents are originally collected and assembled by the government
agency. The law enforcement exception is to prevent, among other things, the disclosure of
documents under FOIL that would interfere with either law enforcement investigations or judicial
proceedings (.Fu.h is„Officers._l aw...§_57...[2.]....Ce�....�i].). or would deprive a person of the right to a fair trial
or Impartial adjudication (.pu Ic Pfflcers i_aw §_87...[_2j. .[e].ji.11). The important point in time as to
"compiling" of documents is *124 not when they are created or initially received, but when they
would be gathered for disclosure under FOIL. That is the time when their disclosure would have an
effect on law enforcement investigations, judicial proceedings, or a person who is to be or is being
tried.
Fairness in law enforcement investigations and judicial proceedings is a fundamental principle of our
democratic society. This court would not permit any improper interference with either the
investigation of the claims alleged against Zacarias Moussaoui; the prosecution thereof, including
the imposition of any appropriate punishment, if he is found guilty; or his right to a fair trial.
However, as stated above, respondent has the burden of demonstrating the applicability here of the
law enforcement exemption to disclosure sought under FOIL, That the United States District Judge
in United5ta[es of,Arn.....v_NPoussaour_(2UQ2..WL_199g900.,....*1.,.2002 U.S.DIst..4_EXIS..,1J 542.,..*,.2. [ED Va,
Aug. 29, 20021) and rule 57 of the Rules of the United States District Court for the Eastern District
of Virginia may have prohibited the prosecution and defense in that criminal prosecution from
making certain disclosures to the public or press does not remove the obligation of respondent to
meet its burden in this proceeding.
Respondent has not met its burden as to the claimed law enforcement exemption. The allegation of
depriving persons of a fair trial was only added in a totally conclusory fashion in the administrative
appellate determination of the FOIL request and is not specified in this proceeding. The claim of
Interference with law enforcement investigations or judicial proceedings is supported by the United
States Attorney's Office but not specifically enough. The Assistant United States Attorney states that
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195 Misc.2d 119 Page 4 of 5
the items requested under FOIL are potential evidence in the guilt and penalty (if there is a
conviction) phases of the trial of Zacarlas Moussaoui, but that it cannot be specified what tapes will
be introduced into evidence at trial and what witnesses will be called in that trial. He also asserts
that during any penalty phase of the Moussaoui trial, the Government intends to call as witnesses
members of respondent "whose testimony will likely be similar to the content of the NYFD oral
histories of these same witnesses." He states that all of the sought-after records have been turned
over to the Moussaoui defense. Respondent has riot shown that there would be any harm by the
disclosure sought. Respondent's speculation that disclosure would taint the jury pool for the *125
trial is just that, speculative, especially as there has already been so much pretrial publicity as to the
World Trade Center attacks and the accusations against Zacarlas Moussaoui, and vigorous voir dire
of the prospective jurors can weed out those who cannot serve as fair jurors.
Respondent had claimed in this proceeding that those interviewed for the oral histories were
promised that their statements would be kept confidential. Respondent later stipulated that such
claim was withdrawn because respondent learned that only some interviews contained such a
promise. The oral histories were prepared for historical purposes, as well as to Investigate and
assess the response of respondent to the World Trade Center event. Personal expressions of feelings
in the oral histories should not be disclosed because they do not fall under any exception of.Rub.I.ic
Officers.Law_§ V (z)...(g..)...(i)..(J..y). PPblic officers.Law § 8..7...(.2..)...M .(!) ..(iv.). provide:
"2. Each agency shall, In accordance with Its published rules, make available for public inspection
and copying all records, except that such agency may deny access to records or portions thereof
that: ...
"(g) are Inter-agency or intra-agency materials which are not:
"i, statistical or factual tabulations or data;
"il, instructions to staff that affect the public;
"iii. final agency policy and determinations;
"Iv. external audits, including but not limited to audits performed by the comptroller and the federal
government."
(2) Certain parts of the oral histories were opinions and recommendations by those interviewed. The
opinions and recommendations of even lower level employees, given "as part of the consultative or
deliberative process of government decision making" are exempt frorn disclosure under Public
O fflcers.L w..§ R ( ?)...(M (see Matter.,o.f Gould.v,New York crty..ftice Dept...�.89 NY2d �67., 277
[1946 _ Mer_ofXeraxCorp, f5owl 5 NY2d 131_t �1 85l Thus, denial of disclosure
of those parts was proper. However, the factual parts of the oral histories should be disclosed.
Pubilc...C�ffice_rs Law,...§ 87,,(2),.,(b.) exempts disclosure of records under FOIL which, if they were
disclosed, "would constitute an unwarranted invasion of personal privacy under the provisions of
subdivision two of section eighty-nine of this article." Public Officers Laws 89_(_2_( _ provides:* s6
"(b) An unwarranted invasion of personal privacy includes, but shall not be limited to:
"i. disclosure of employment, medical or credit histories or personal references of applicants for
employment;
"IL disclosure of items involving the medical or personal records of a client or patient in a medical
facility;
"iii, sale or release of lists of names and addresses if such lists would be used for commercial or
fund-raising purposes;
"iv. disclosure of information of a personal nature when disclosure would result in economic or,
personal hardship to the subject party and such information is not relevant to the work of the
agency requesting or maintaining it; or
IV disclosure of information of a personal nature reported in confidence to an agency and not
relevant to the ordinary work of such agency; or
"vi. information of a personal nature contained in a workers' compensation record, except as
provided by section one hundred ten-a of the workers' compensation law."
Respondent has not shown that any of the information sought would fall under any of the specific
categories of Pu.bl.c._Offi_eels....Law....§...89.(2)....(b.)., but by the terms of the statute the list is not
exhaustive.
The 911 tapes and transcripts contain communications made by people using that emergency
telephone number in extreme circumstances, and for many it was the last words of their lives. Their
calls for help In extremis should be protected as private utterances for the sake of both the victims
who died and their surviving family members and others who cared about them (cf 11Ie.w....York....7.rVes
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195 Miou.2d119 Page 5of 5
0CCir 1990, en bond [the court
remanded the case to the District Court for a determination as to whether the tapes of the voices of
-the deceased nnornbars of the ChaUenger.crew should be released by NASA under the Freedom of
Information Act, and recognized the potential privacy |nnpUCaL|ons of same in holding that NASA did
not have to disclose any information as to a particular individual which constituted an unwarranted
invasion of privacy]; see generally ����[-�f����[����/-vffoqp��-���4�{��d 7��^'7�7�7�8 �3d �ept
1989l). The same protect|on 8hDU|d be *127affnrded to those who, thankfully, survived but made
their telephone calls under the same horrible circumstances.
The911 calls made by husbands and sons ofthe nine families who are ann|c| curiae ahnU|d be
disclosed, So that they will have the opportunity to hear their loved ones, as desired by the 8nn|ci,
due to their waiver of the privacy exemption. There |Sno privacy exemption astn the port|onofthe
tapes and transcripts which consist of the words of dispatchers and 911 operators, and members of
respondent's units, as they were performing their jobs at the time as public employees, and thus
were not entitled to any expectation of privacy for their part of the conversations (cf, Motter'of
Joumo!'PO/^-C Qffio-Or5p��,(;/a/-����e ut �-J31-Mlsf�2��417,'424 (Sup Ct, NY County 1986l
[public officials have less of right to and expectation of privacy than do members of the public]),
-Respondent contended that some operators or dispatchers expressed disbelief, shock, and.terror. It
was the job of the operators and dispatchers to deal often with emergency circumstances, vvh|Ch
surely can be difficult, for the operators particularly, although the magnitude of the World Trade
Center event was extraordinary for the operators and dispatchers. Nevertheless, their
communications are not entitled to privacy exemption.
The portions of the operator, dispatch, and units reporting communications vvh|Ch consist of |ntr8'
agenCy material should not be disclosed. Respondent states that parts of the dispatch records
include "discussions as to secure routes into Manhattan; interim discussions actowhere command
posts should be sot Up; reports establishing the process of setting up roll call; and the need to set
up relay C0rnrnun|oat|ons so units could determine what was happening elsewhere on the Site."
Those are at least in part "instructions to staff that affect the public" (Ubl[;_Qfticu -.L w-§-U_|2.l
-)
\, which should be disclosed, �s should factual portions of the dispatch calls.
-----�
Pursuant Cg�m_I W_§-89 the court can award reasonable attorneys' fees and
other litigation costs to a person who has Substantially prevailed in a proceeding challenging the
denial of FOIL request, provided that the court determines that the record sought clearly has
significant interest to the public and that the government agency lacked a reasonable legal basis for
withholding the record. An award of Such fees ia discretionary (����[-�f��������-\l-{�t�-���/��IY,,
[3d Dept 1989]). Here, respondent had reasonable legal bases for withholding
parts of the material *128sought. Thus, attorneys' fees and litigation costs should not be awarded
to petitioners.
Freedom of access by the press and public to government information preserves a free sOciety.
Unless the government proves that there is a reason that information should be withheld,
government records sought byway of FOIL request must be provided. The press and public should
be permitted to obtain as much nonexempt Information as available in relation to one of the most
poignant episodes of our lifetimes.
Therefore, this court declared in its separate decision and order that the following records are
oUbiec� to disclosure, and respondent shall allow petitioners to Inspect and copy at their expense
(Public' UhDthe 911 tapes and transcripts of the September 1l calls nfthe
-�sUon�s and sons if the nine arn|c| curiae; the tapes and transcripts of the operators, dispatchers,
and units reporting portions of all other calls and communications on September 11, except for the
pa/ts that constitute |ntra-agency materials; and the factual portions of the oral histories.
Petitioners' request for attorneys' fees and litigation coats was denied.*129
Copr. (c) 2004, Randy A. Daniels, Secretary of State, State of New York,
N.Y.Sup. 30O].
NY TIMES CO. v0Y FIRE DEPT.
END OFDOCUMENT
copyrinm(c) 2004 West, aTxomrvn ousmoso
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119 Misc.2d 963 Page 1 of 3
464 N.Y.S.2d 925
0r �nr,.E [aii. parr.. yrr� v .ra .ra.
Lewis Steele, Petitioner,
V.
New York State Department of Health, Respondent
Supreme Court, Niagara County
March 15, 1983
HEADNOTES
Disclosure--Freedom of Information Law--Air Monitoring Reports
(1) Under the Freedom of Information Law (Public Officers Law, art 6), counsel to a property owners
association is entitled to copies of handwritten weekly field reports for specified periods and draft
reports on air monitoring for the installation of landfill overburden monitoring wells prepared by the
staff of respondent Department of Health relative to a landfill maintained by a chemical and plastics
company, notwithstanding the fact that the factual information contained therein may have been
supplied to petitioner in other records, and petitioner is also entitled to examine a memorandum,
which material is riot integral to respondent agency's deliberative process and does not contain
opinions or other subjective material; further, inasmuch as respondent lacked a reasonable basis in
law for withholding these records, petitioner is entitled to reasonable attorney's fees. However,
petitioner Is not entitled to a copy of a memorandum from an attorney for respondent to
respondent's general counsel based on communications with respondent's staff dealing with health
problems of an area resident attributed to drilling activity at the landfill, since said material is
protected by the attorney-client privilege and, in addition, it was prepared for ongoing litigation.
APPEARANCES OF COUNSEL.
David J. Seeder for petitioner. Robert Abrams, Attorney- General (Peter B. Sullivan of counsel), for
respondent.
OPINION OF THE COURT
Irving Fudeman, J.
The petitioner brings this CPLR article 78 proceeding to obtain certain public documents from the
respondent pursuant to article 6 of the Public Officers Law.
On December 10, 1982, petitioner filed a request with the respondent under the New York State
Freedom of Information Law (Pu.blic Officers..,.Law,-H 84-9,0.) seeking "all records relating to the
Fall/Winter 1982 drilling into areas adjacent to the Hyde Park landfill in the Towns of Niagara and
Lewiston, New York, including (1) copies of all daily, weekly and monthly monitoring and/or
inspection logs prepared by Health Department personnel and dealing with Occidental contractor
activity (2) copies of the results of all machine monitoring tests conducted to determine whether the
drilling activity resulted in the release of chemical vapors, odors, or particulates at the site, (3)
information identifying the monitoring equipment's detection level for those tests and (4) Individual
and summary *964 Health Department reports relating to the Fall/Winter Hyde Park drilling."
In answer to the request, by letter dated December 20, 1982, the respondent stated that due to the
number of requests received and the volume of photocopying involved, it would take approximately
30 days to complete the request. On January 25, 1983, petitioner commenced this article 78
proceeding to obtain the requested documents. As of January 2.5, 1983, the petitioner had received
no documents from the respondent. Then by letter dated January 28, 1983, the respondent
provided certain material. One of the documents supplied was a memorandum from "Hawley" to
"Kim" dated October 20, 1982. Portions of this memorandum were deleted. The respondent stated
that various other documents would be forthcoming. It stated that It was not providing the
handwritten dally field notes of respondent's employees regarding drilling activities in and adjacent
to the Hyde Park landfill area or the drafts of the air monitoring report relating to airborne chemical
contaminants In the Hyde Park landfill area; or a memorandum dated October 20, 1982 from E.
Marta Sachey, Esq. to Peter Millock, Esq., both counsel for respondent. The respondent still refuses
to turn over these documents, as well as the deleted portions of the "Hawley" to "Kim"
memorandum. Respondent still has not provided the documents it stated were forthcoming. It has
not turned over any documents dated beyond December 16, 1982. In addition, the petitioner
questions whether the respondent has informed him of all the records which are in existence.
As to the documents which respondent indicated were forthcoming, to wit, the Department of Health
Weekly Field Report, December 13, 1982 to December 17, 1982, the Department of Health Weekly
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1.19 Misc.2d 963 Page 2 of 3
Field Report, October 25, 1982 to October 29, 1982 and the report on air monitoring for installation
of landfill overburden monitoring wells, it would seem that sufficient time has elapsed that these
documents should have been typed or prepared and forwarded to petitioner. Therefore we direct
that these documents, in whatever state of preparation they may exist, be provided to the petitioner
forthwith. If respondents wish to *965 indicate no such records exist, we direct that it communicate
such fact to petitioner, forthwith.
To be certain that respondent has informed the petitioner of all records, which are in existence,
respondent shall submit a list to petitioner of all documents in its possession related to petitioner's
demand. This list shall include all documents that are in existence as of the present time. If
respondent has not previously acknowledged the existence of certain of these documents and feels
that some of them are exempt, it must submit to petitioner a full and complete description thereof.
This description shall be by affidavit and such affidavit shall give a detailed analysis of the
documents In such a way that the exemption will be demonstrated.
As to the respondent's claim that the handwritten field notes, the drafts of the air monitoring report
and the deleted portions of the "Hawley" to "Kim" memorandum are exempt, we cannot agree. The
purpose of the Freedom of Information Law is to allow maximum access to documents (Miracle Mile
The respondent has the burden of proving that records are
exempt from disclosure if it denies access to them. The Public Officers Law states that "[€]n the
event that access to any record is denied pursuant to subdivision two of section eighty-seven of this
article, the agency involved shall have the burden of proving that such record falls within the
provisions of such subdivision two" (§ 89, subd 4, par [b]).
The affidavits submitted by respondent do not support an exemption and do not sustain this burden.
Respondent's major argument as to the handwritten field notes and the drafts of the air monitoring
report is that it need not supply them because the factual material contained therein was supplied in
other records provided to the petitioner. This is hardly an acceptable reason to withhold the
material. Certainly petitioner is entitled to examine and use these records as he sees fit even though
he has other records which may contain the same information.
The respondent "may refuse to produce material integral to the agency's deliberative process and
which contains opinions, evaluations, deliberations, policy formulations, *966 proposals,
conclusions, recommendations or other subjective matter" (Miracle Mile Assoc v.....Y.,ude( o.n, supra.,.p.
182). It does not appear from the affidavits submitted by respondent that the handwritten field
notes or the drafts of the air monitoring report or the deleted portions of the "Hawley" to "Kim"
memorandum contain such material. Therefore respondent must provide petitioner with these
documents.
The memorandum dated October 20, 1982 from E. Marta Sachey, Esq, to Peter Millock, Esq. is a
different matter. This is a memorandum from an attorney for respondent to the respondent's
general counsel and is based upon communications between the attorney for respondent and
respondent's staff. In this instance the court finds that the public's right to know must bow to the
attorney-client privilege. (See CP R._4,50.3, subd [a].) While it is true that the affidavits submitted by
respondents do not expressly show that the communications with the respondent's attorney were
confidential, such can be Inferred from the background of this case and the surrounding
circumstances contained in the record.
In December of 1979, the United States of America sued Hooker Chemical & Plastics Corp. because
of Hooker's operation and maintenance of the Hyde Park landfill. Subsequently the State of New
York was made a party to that lawsuit. On April 30, 1982 the Honorable Judge John T. Curtin issued
an order approving a settlement agreement of that litigation. On that same date Judge Curtin
granted the motion of College Heights Property Owners Association to intervene as a plaintiff in the
litigation. The College Heights Property Owners Association Is composed of Individuals and families
residing in the area of the Hyde Park landfill and the Bloody Run Creek. Petitioner in the instant
proceeding is one of the counsel to the College Heights Property Owners Association. The Hyde Park
settlement agreement requires that Hooker drill a series of wells both in the Hyde Park landfill itself
and along certain vectors specified in the agreement. In the fall of 1982 Occidental Chemical Corp.
(previously known as Hooker Chemical & Plastics Corp.) hired Rochester Drilling Corporation to drill
the landfill and vector wells. Rochester *967 Drilling Corporation has worked on this project since
that time and continues to work on this project. During the fall and winter of 1982 Hyde Park landfill
drilling program, the respondent assigned agency personnel to monitor the activities taking place at
the landfill site.
The memorandum from Sachey to Millock concerned itself with the health problems of a resident of
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119 Misc.2d 963 Page 3 of 3
the Hyde Park area which were attributed to the drilling activities at the Hyde Park landfill. Certainly
respondent's staff intended their communications to their attorney on this subject to be confidential.
Furthermore there is no doubt that the memorandum was prepared for ongoing litigation. The
memorandum is therefore exempt from disclosure.
It should not have been necessary for the court to search the record to infer confidentiality and to
learn that the "Sachey" to "hillock" memorandum was prepared for litigation. This should have been
clearly delineated in the affidavits submitted by respondent. The affidavits were also insufficient as
to the other documents claimed by respondent to be exempt from disclosure. They did not contain
the detailed analysis required to suppoit an exemption. However an it) camera inspection by the
court of the withheld documents should not be used routinely to overcome these deficiencies. Father
It is a rare case when such an inspection should be directed (Mracl ..Mi.1.e,.A5�5p., ....y.._Yurlson,.,_68
AD:d176,, supra; Vaughn v_Rosen, 484 F2.d820)_ It is not appropriate in the instant proceeding.
Finally the court finds that the handwritten field notes, the drafts of the air monitoring report and
the "Hawley" to "Kim" memorandum are records of clearly significant interest to the general public
and that the respondent lacked a reasonable basis in law for withholding these records. Accordingly
the petitioner is entitled to reasonable attorney's fees. Petitioner may submit affidavits with regard
to his attorney's fees for this proceeding and respondent may submit affidavits in response thereto.
*9.68
Copr. (c) 2004, Dandy A. Daniels, Secretary of State, State of New York.
N.Y,Sup, 1983.
S`f'EELE v DEPT. OF HEALTH
END OF DOCUMENT
Copyright(C) 2004 West,a Thomson BusEness
... 07/15/2004
s
,t
m 7 1
if
JR 2b i tl RgCORD5 AND RECORDING
§ 47
.'
;ht,e Fi
shooting for which he or she was convicted of fret-degree rrlanslaugh-
ition ter had threatened or intimidated any of the witnesses in his or her
the
s climinal case,'
)rce- Ir
's to §47 interagency and. intra-agency materials jr
that ,
Research References
fined 'West's Key Number Digest, Records 0=57 ,l
it
iraal The Freedom of Information Law authorizes each agency to deny
0m access to records or portions of such records that are interagency or a
pen intra-agency materials which are not:' a
Pee-
s statistical or factual tabulations or data
® instructions to staff that affect the public
'Johnson v, New York City Police agency Memorandums or betters Exempt
Dept„ 257 A.D.2d 343, 694 N,Y.S,2d 14 from Disclosure under Freedom of Infor-
(1st Dept 1999), mation Act (5 U.S,C.A. § 552(b)(5)), 168 fi
eny Annotation References: Construc- A.L,.R, Fed. 143. I�
luld 4 tion and Application of FOIA Exemption What are matters "related solely to I+1'
7(F), 5 U.S,C.A, § 552(b)(7)(F), Which the internal personnel rules and practices ;:j,j,
Permits Withholding of Information Com- of an agency" exempted from disclosure jr•;��
piled for Law Enforcement Purposes if under Freedom of Information Act (5
Id.Disclosure Could Reasonably Be Expected U,S.C.A, § 552(b)(2)), 141 A,L,R. Fed,
to Endanger Life or Physical Safety, 184 531.
A.L.I . Fed. 435. What are administrative staff manu-
[Section 47]
als and instructions to staff that affect
life 'N.Y. Pub, Off, Law § 87(2)(g). members of public that must be disclosed ';'Y.
deb under the Freedom of Information Act {
As to exemption from the disclosure (FOIA) (5 U.S-C.A. § 552(a)(2)(C)), 139 •:{.
hat of intra-governmental communications A.L.R. Fed. 299,
uld under Freedom of Information Acts, see What constitutes "final opinion" or I i
Am.Jur. 2d Freedom of Information Acts
I�1C ° f i A `order' of federal administrative agency
§§184 to 238. enc
;on required to be made available for public
tal
Annotation references: What are inspection and copying within meaning
"records" of agency which must be made of 5 U.S.C.A. § 552(a)(2)(A), 114 A.L.R.
available under state freedom of informa- !
I'ed. 287,
tion act 27 A.L.R. 4t 680.
' h Access to presentence,probation, and
What constitutes preliminary drafts parole reports and recommendations
or notes provided by or for state or local under Freedom of Information Act (5
10, governmental agency, or intra-agency U,S.C.A, §652), 81 A.L,R. Fed. 801.
00) memorandums exempt from disclosure )3
' p What rules, statements, and inter-
ley or inspection under state freedom of in- pretations adopted by federal agencies
.2d formation acts, 26 A.L.R. 4th 639, must be published, 77 A.L.R. Fed, 572.
56 Use of Affidavits To Substantiate Freedom of Information Act exemp-
Federal Agency's Claim of .Exemption tion (5 U,S.C.A, § 552(b)(5)) for inter- E'
v. from Request for Documents Under Free- agency and intra-agency memorandums
,18 dom of Information Act(5 U,S,C.A. 552), pp
§ or letters as applicable to communica- II
p't 187 A,L,,R. Fed. 1, tions to or from attorneys for the govern-
What Are Interagency or Intra- ment, 54 A.L.R. Fed, 280.
83I
y lk 1,
4'7
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Law Guide: Notwithstand'
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rn ports to be fur of law, busiixess °f Inforrtiation
property zrzay not furnished
nished to the corporation
open to the Comptroller regardingfranchise
To be exem public for ins z abandolled
mation pt from disclosure pection,
Act as an inter- under the federal Freedom uxnent must satisfy or intra_a
agent y two conditions 11CY memorandum or lotter, azd°r
under •and it must fall Within the a its source a
1�idicial ambit ofPrivilege
must be a govern
agency that standards that rvauld privile .e ment
The holds it.3 govern litigation Lion t discovery
zriez t o the Policy behind this gation against the
while still pen e.xcizan exemption From disclosure is the enco
maintainin ge of ideas among govern
interest is served b g broad public access to ague nt polic 5 urage.
from diuclos Y keep1zzg certain Yznakers'
representations' such goverziznez1t docunzentsds public
as documents reflecting privile e
develo °f view's among govern g candid g d
J assist hPent of poIicy,6 Whereas went einplo ees discussion az�rl ah
agency decision- predecisional Y involved in the
from disclosure ' inalter in material 1 rial whether arriving at a 'repared to
fj , setting forth reasons not action is talten $ decision
exeznpt.� , is exempt
agency decisionsg postdecisianal mate. :.
Although the already made is
r exemption is intended to � not ,a
�z �--`�—� protect the deliberative
aN,Y. Tax Law §2II(12)(e), pro•
i partm
Water ent of lx2terior v, Klamath 2d 8470f New York
Users Protective Ass' � at StnnY Brooli ;
121 S Ct. IU60, n 53Z US 1, Fie 556 N,Y,S.2d I47 11lisc.
(re Qerring to 5 U.S C Ed. 2d 87 (20' u I23G {Sup 1990). 447 GO Ed. Law s
45G N Y 'm Axe ¢90 2(b)(5)). New Ya Beekman Place, Inc. V.
cle 5 2d 146 (3d De ' A'D'2d 568, 169 (Ist A'D•2d 492 564 City of
Mile As A t 1982); Mira- Dept 199I), N Y•S,2d
`4 D•2d 176 4I7 v Yudelson 'Xerox
N.Y.S.2d 68 N.V. 1310rp. v. Town of
1979); America 142 (4th De 490 Webster, 65
Cruelt n Soc, for PreventiorzA't N,E.2d 74 N•Y,S.2d 488
y to Animals v. I3aard of of Q, (1985); Kheel v 480
Of Mate University of Trustees ll'2d 422 462 N,Y.S.2 Ravitch 93
Universit New York 1983), order afPd, 62 d 182 (1st Dept
I47 y of New York State S.2d 814 N Y•2d I r
Misc. 2d 847 r at Stony Brook , 464 N.E.2d 118 47`' N.Y,
Ed. Law Re S`'6 N.Y,S,2d 447 Mile Associates v (1984); Miracle
5In r� 1' 1236 (Sup 199U). GU I76 4I7 N,Y. Yudelson, 68 AID 2d
456 N.� �ln v. Axelrod 90 S•2d 142 (4th De '
YS•2d I46 A•D.2d °Xerox Caz•p. v. Town of pt I079),
can Soc. (3d D' , 1982} A 56g' N'Y.2d 131 Webster, 65
AnimalsoRI'reventio f nmeri- N.E,2 � 490 IV,Y,S.2d
Board o f n of Cruelty to d 74 (1985). 4$8, 480 1
University of New Trustees of State Feel v. Ravitch 93
w York, State Univerta N'Y'S'2d .t232 A•D.2d 422,
, 462
84 Y 62 XY•2d 1 f 1st Dept .1983), order aff'd, r3
47, N.Y,9.2d 814, 464 11
rORK JUR 2D RKcORDS AND RE'CORDING I#is i,
§ 47 '
cess of government, it is not intended to protect purely factual
performed deliberative material,i° and statistical or factual information
within inter-agency or intra-agency materials is ands en found
ination Bible even though it might not have been used or is not relevant to tes- .f
agency's determination.,, if he
�nchise actual data for purposes of the ultra-agency
adoned e atio tinn to the Freedom of Information Law oration, in contrast to opinions, ideas, or advice exchanged as
objective parinft of
the consultative or deliberative process of p• n#
r of Infer- Ix�akin y p
g 1z Only opinions and recommendationos,enomstat decision,
it
'ser, a doc- factual tabulations or data, are exempt, z„
vernment of the data nligl�t be an estimate or recommendation nhe i ere f does that wine
;A
discovery it into an expression f opinion.i3 The opinions and recommot endations
ainst the of even lower level employees given as part of the consultative
deliberative process n#' . over
g nment decision-Inakin or {.yl
disclosure under the intra-agency excepti on.1q g are exempt from 'f
'courage- ,
r121akel'u,l
The exemption permits access to records or.por{,ions ther rj
3.$ ]Public contain any statistical or factual information, policy, or determina-
irivileged tians upon which the agency relies. �17 the ntllex hand, written
za
t,inn and memoranda or letters sent from an official of one agency to , ritt al
en ;
A in the of another or to an official within the same agency are not available
pared to the communication is purely advisory in nature. An agency may re- 1'
fuse to produce material intem�al to the agency's deliberative process tt
re-
exempt p y
al mate- and which contains opinions, advice, evaluations, deliberations, policy
e, Is not formulations, proposals, conclusion, recornrnendations, or other
subjective matter.15
,Ive pro-
Ob:servatio n: The court properly concluded that documents
sought by the Petitioner in connection with his failure to achieve the
l47 Misc: rank of professor at Queens College, consisting of recommendations
Ed. Law of various committees concerning
exempt from disclosure under th Freedom f Information Law,
�. candidates, were
City of because such recommendations were purely advisory in nature and
N.Y.lS.2d rendered only
Trust-
ees, in reaching a d to etermination natione actual don alparticlilar candidate.
M
� .
bster, 65 -
88, 480 ,
'itch, 93 I :
NZ2d � .
ist Dept 118 (1984); Miracle Mile Associ- 73Polansky v. Regan, 81 A.D.2d 102,
I75 N.Y. ates v. Yudelsal, 6$ A.D.2d 176, 417 440 N.Y.S.2d 35G (3d Dep't 19$1
N,Y.S.2d 14Z t>6'
Miracle i0 (4t.h I)ep't 1J791• }, Tn-
I A.D.2d Miracle Mile Associates v. Yudelson, S.2d�14$v. p(3d Dep'ta 9g 2d 56$, 456 N Y
1979). 68 AID.2d 176, 417 N.Y.S.2d 142 {4th ,a
sf ,r, 65 Dep't 1979). New York finies co, v. City of New
York Fire Dept., 195 Misc. 2d 119, 754
38, 480 "Committee an Open Government N.Y,S.2d 517 (Su
FOIL-AO-3859, A 2003), a, amended.
,sMiracle Mile Associates v. Yudelsozi, �
E22, 462 1zGa,rld v. New York City police Dept, 6$ A.I:),2d 176 417 N,Y, ' ,k
er afrd, 2•Y.2d 267, 653 N.Y3.2d 54, 675 I)ep't 1979). S 2d I42 (4th
.4, 464 d 808 (199k ). i'
"Rothenberg v. City University of
TV
85
.,,,.
i
l
§ 47 NEW YORK aJUR 21)
Although the purpose of the exemption is to encourage the free
exchange of ideas among government policymakers, it does not autho..
rize an agency to throw a protective blanket over all information by
casting it in the form of an internal memo." The question in each case
is whether production of the contested document would be injurious to
the consultative functions of government that the privilege of
nondisclosure protects."
Opinions and recommendations that would, if prepared by an
agency's ern to employees, ,p y , be exempt from disclosure under the Freedom of
Information Law as intra-agency materials, do not lose their exempt
status simpI because they
are prepared aced for th P Aa e agency, at its request,,
by an outside consultant.1' Materials that were neither prepared by
nor for the agency from which they are sought, however, cannot be
defined as interagency or intra-agency materials; the mere fact of be-
ing collected by a governmental agency and appended to its report is
insufficient to transform a paper into intrragency material."
Various types of record
s ds or
documents
I constitute
or factual tabulations or data so as not to be exempt from disclosure
include:
e portions of forms used by field auditors in an audit of a town;"
a boobs of account, ledgers, and similar documentation;22 '
@ portions of a financial statezneilt prepared by officials of a vol-
unteer fire company;23
® witness statements, contained within a police complaint
follow-up report, insofar as they embody a factual account of
the witness's observations.2°
Although a budget estimate is not a statistical or factual tabulation
New York, 191 A.D.2d 195, 594 N.Y.S.2d "XeroxQ Corp. v, Town of Webster, 65
219, 81 Ed. Law Rep. 493 (1st Dep't N.Y.2d 131, 490 N.Y.S.2d 488, 480
1993). N.E.2d 74 (1985),
"Miracle Mile Associates v. Yudelson i6"Ingram v. Axelrod, 90 A.D.2d 568,
68 A,D.2,d 176, 417 N.Y.S.2d 142 (4tls r
Dep't 1979), American See, for preven-
tion of Cruelty to Animals v. Board of Polansky v, Regan, 81 A.D.2d'102,
Trustees of state University of New 440 N.Y.S.2d 356 (3d Dep't 1981),
York, ,State University of New York at "Committee On Open Government
Stony Brook, 147 Misc. 2d 847, 556 N.Y. FOIL-AO-.4557.
S.2d 447, 60 Ed. Law Rep. 1236 (Sup 231986 Committee on Open Govern-
1990)' ment FOIL-AO-4175.
""Miracle Mile Associates v. Yudelson, "Gould v. New York City Police Dept.,
68 A.D.2d 176, 417 N.Y.S.2d 142 (4th 89 N.Y.2d 267, 653 N.Y,S.2d 54, 675
Dep't 1979). N.E.2d 808 (1996).
86
"r.
f rLL{{
2D g
RECORDS AND RECORDING .'
I
Leo § 48 �%
subject to disclosure," more recent opinions of the Lon�mittee on
�0- Open Governrr�ent have stated that first draft budget documents are
by ti #�}
statistical or factual tabulations.28
to '' With respect to the requirement that interagency or intra-agency
of materials which constitute final agency
disclosed, a memorandum Prepared by P policy or determinations be
lic agency for internal
use addressing a position it might take in pending or Prospective l- it
o lective bargaining negotiations to which it is a part is n
of
,a 1
agency policy or determination b 2r �' of a final
Pt y the agency• Records containing °t?
t selection procedures axe, however, available sander the Freedom of IIl-
' formation Law, for they represent policy of an agent A
)e constitutes a final agency determination, agency," s to what
1:
�e nary definition of the word "final" would produce eordinary dictio-
nary n unreasonable
is
result by denying access to all opinions, orders and determiriations
except those made by the highest agency. Adopting the legal
tion permits access at each stage of an oftefr rnuitiglevel adznzzsf ni-
tl tive process.�9
e tra-
§48 Fxam'n anion questions an answer
s d �
Research references
West's Key Number Digest, Records f:-54
The Freedom of Information Law authorizes each agency to deny
access to records or portions of such records that are examination
E
P questions or answers which are requested prior to the final adn�inis-
tration of such questions.,
Practice Guide: A request to inspect and co l
student answer, to a particular midterm examination administered
by a law school could be denied if there was an intent or a possibil-
ity that the questions used in the examination would be used in the P'
future, because disclosure of the questions or answers in that
circumstance would diminish or perhaps nullify the utility or ef-
ficacy of the examination.'
">'h
2I'Delaney v. Del Bello, 62 A.D.2d 281, !„405 N,Y.,S.2d 276 (2d Dep't 1978). 29Miracle Mile Associates v, Yudclson, 15.
� . .
�61986 C 68 A.11.2d 176 417 ominittee on Open Govern- Dep't 1979), N'Y'S 2d 142 (4tll
m znt FOIL-AO-406Q.
Kheel v.
Ravitch, 62 N.Y.2d 1, 475 [S,ction 48]
N.Y.S.2
d 8141 464 N-E.2d 118 (1984).
ze1986 Committee oar Open Govern- 'N.Y.9N.Y. I'tala. Off, Law §87(2)(li). l' .
mL'xlt FOIL-AO , ZCommittr:e on Open Government
FOIL-AO-7610.
87
I
+ I
CONSULTING ► SURVEYORS
56 MAIN STREET
POUGHKEEPSIE,NY 12601
t4 : • :
APR
SC)P E Po
Me
-0: Daniel Wery,AICP WA,FAX&MAIL:
cc: Hon,Joseph Ruggiero
Hon, Graham Foster
Albert.P. Roberts, Esq.
From: Joseph E. Pagg Jr., P.E.
Date: April 13, 2004
Re: MacFarlane Road
As a follow-up to our staff meeting of April 13t", 2004, Graham had looked at the stopping site distance
for a proposed "Stop„ sign traveling east. He is afraid that if we have some cars stacked up that the
available stopping distance would not be adequate. He estimates 230±' stopping distance. We need
to take a look at this. Passible Michael, you and I can do that. As you know, this was our original
concern.
The other item is the large scale map of that area. If we could take MacFarlane Road, not to Route 9,
on the west side, and not to the condominiums on the east side, but maybe a little bit short of that,and
put in on a 2' x 3' sheet at some type of manageable scale (V — 40'?). That would be greatly
appreciated. I may be able to show the Board a picture at that point demonstrating what I mean.
Aep iMaggi,Jr., P.
JEP:law
6 Page 1
PAGGT,MARTIN&DEL BENE LLP
Consulting Engineers & Land Surveyors
56 Main Street
Poughkeepsie,New York 12601
845-471-7898
845-471-0905 (FAX)
March 29, 2004
NEE,
Town Supervisor APR 1 ?,�, �l
Town of Wappinger
P.O. Box 3243._.;..a-
Wappingers Falls, New York 12590 'TCVqN 01:V'
Attention: Hon. Joseph Ruggiero
Reference: MacFarland Road
Dear Supervisor Ruggiero:
At your request, we have looked into the feasibility of making an overall road
improvement and/or proper signage to alleviate some blind driveways on
MacFarlane Road in the area of Beachwood Circle. Dan Wary's office has provided
us with an aerial of that area on MacFarland Road which is attached for your use.
To remove the horizontal and vertical curve would require shifting the existing
roadway southerly a significant distance, therefore, decreasing the front yards of at
least two of the properties along the south side of MacFarlane Road. This does not
appear to be an appropriate course of action.
In addition, the construction cost for an overall road improvement of this magnitude
is estimated to be a minimum of$300,000.00, and including any land acquisition
costs, could be greater than that.
With that in mind, we looked at the possibility of placing a Stop sign at the
intersection of the MacFarland Road and Beachwood Circle on MacFarland Road
heading in a westerly direction. We also recommend the installation of a "Stop" sign
on Beachwood Circle as it intersects MacFarland Road on the northwest corner of
that intersection. This in effect would control that intersection and allow traffic
exiting the driveways from MacFarland Road, just west of Beachwood Circle, to
have additional time to merge into traffic.
We would also recommend that a "Stop SigQ-Ahead" be placed on MacFarland
2 Road approximately 400'-500' in front of the 9'tbp sign. This would warn drivers that
there is a stop sign ahead and they should.be prepared to stop.
We would further recommend that this course,pf action and the overall condition be
explained to Jack Peluse of Marshall and Sterling. Possibly, the Town's Insurance
Company could provide some type of risk management scenario to minimize the
exposure of the Town.
.r
Joseph E.Paggi,Jt.,F.E. Ernst Martin,Jr,,F.E.,L.S. Charles R.Del Bane,Jr.,P.E.
Hon. Joseph Ruggiero - 2 - March 29, 2003
RE: MacFarland Road
Obviously, the placement of the stop sign on the main road is not normally a
recommended course of action. However, in this instance it would appear to be a
practical step in the right direction.
If there are any questions or comments on the above, please do not hesitate to
contact this office.
Very my yours,
b
oseph.E. Paggi, Jr., P. .
JEP:Iaw
Attachment
cc: Hon. Graham Foster w/attachment
Albert P. Roberts, Esq. wlattachment
Town Board wlattachment
f � i
1
1 \
\� 1
114
t �k
_ W 4
f
\ � I
1.
t 1
TOWN OF WAPPINGFR,
SUPERINTENDENT SUPERVISOR
GRAHAM FOSTER JOSEPH RUGGIERO
TOWN COUNCIL
VINCENT BETTINA
MAUREEN McCARTHY
JOSEPH P. PAOLONI
SUPERINTENDENT OF HIGHWAYS ROBERT L.VALDATI
Garage at
10 Highway Drive
20 Middlebush Road
WAPPINGERS FALLS, NY 12590-0324
(845)297-9451
FAX: (845)298-0524
TO: TOWN BOARD
FROM: GRAHAM FOSTER
DATE: APRIL 20, 2004
SUBJECT: STOP SIGNS-MACFARLANE &BEECHWOOD
Regarding the above stop signs, I agree that a stop sign is needed on Beechwood where it
intersects with MacFarlane Road. I also agree a stop sign on MacFarlane Road heading
in a westerly direction where it intersects with Beechwood is advisable.
I do not reel a stop sign on MacFarlane Road traveling easterly where it meets
Beechwood is advisable. The vertical curve on MacFarlane just west of Beechwood
severely restricts stopping site distance for the east bound stop sign and could create a
very hazardous condition.
Cc: Al Roberts
Jay Paggi
APR
TOWN OF WAPPINGER
SUPERINTENDENT ' SUPERVISOR
GRAHAM FOSTER JOSEPH RUGGIERO
TOWN COUNCIL
VINCENT BETTINA
CHRISTOPHER J.COLSEY
JOSEPH R PAOLONI
SUPERINTENDENT OF HIGHWAYS ROBERT L.VALDATI
20 OLD ROUTE 9
WAPPINGERS FALLS, NY 12590-0324
(845)297-9451
FAX: (845)298-0524
March 13,2002
Mr. Walter Lazenka
29 Mae 1~arlane Rd.
Wappinger Falls,NY 12590
Dear Mr. Lazenka:
This letter is in reference to your memo of March 10,2002, concerning your driveway.
Since your home was built on an existing lot,the town was obligated to allow you access to the town road even
though the standard site distance in an easterly direction did not exist. It was however determined that a
driveway on the east side of your property offered the best option. This was determined for several reasons.
I) There is no question that the easterly driveway provides the safest ingress to your property.
2) For egress from your property both the easterly and westerly driveways provide about the same easterly site
distance. There is however a possibility that by lowering the shoulder and a portion of the front lawn on your
neighbor's property you would greatly improve your easterly site distance. In addition,the easterly driveway
site distance improves dramatically as you slowly pull out into traffic;the westerly driveway does not.
On the surface, when we met on March 8,2002,both driveways appeared equal but they are not. You have
requested basically a U shaped one-way driveway. Once completed,the town would be unable to enforce any
one-way agreement.
While your intentions are good,there is nothing to prohibit your guests,de liverymen or future owners from
using both driveways for ingress and egress. This would not only place them in danger,but would also place
the traveling public on Mac Farlane Road in a very dangerous position.
It is still my belief that the easterly driveway provides the safest access available.
Sincerely,
cc: Town Board
Jay Paggi
Al Roberts ,` -r
IVE
NOON CLERK
-- r
29 MacFarlane Road
Wappingers Falls,New York, 12590-4946
March 10,2002
Town of Wappinger
Superintendent of Highways
P.O.Box.324
Wappingers Falls,Now York 12�90
Dear Mr, Graham Foster;
This inemo is to request an additional driveway access on the southwest end of 29 MacFarlane Road,
Grid#6157-04.723340. Based on Mr.Jay Paggi and your March 8,2002 visit to the above property,the
Town of Wappingers concluded that the sight distance,based on the 12 foot 42"standard,was not an issue
for the requested.access.
The Town of Wappingers has assessed that the best access to entry,onto 29 MacFarlane,would remain the
current southeast access and that the proposed southwest access would be utilized as an exit only.
Following formal approval,I.would like to request a copy of the variance that will be filed with town
records.
l thank you for your time and consideration with regards to this matter. Should you need to speak with me
during business hours,I may be reached at(212)383-2942,
Sincerely,
Walter D.Laxenka
eceo eQ
P.AGGI,N1ARTIN&DEL EENE LLP
Consulting Engineers & Land Surveyors
56 Main Street
Poughkeepsie,New York 12601
845-471-7898
845-471-0905 (FAX)
January 17, 2001
J A N .
Town Board F-LAINF SNO r-
YOW
Town of Wappingers"
I .O. Box 324
Wappingers Falls, New York 12590
Attention: Constance 0. Smith, Supervisor
Reference: MacFarlane Road
Dear Supervisor Smith & Board Members:
As requested, our office has made a field inspection of MacFarlane Road in the
area of the Arkell residence who had made a verbal request to Graham Foster to
place a guiderail on the south side of MacFarlane Road. The area in question is
approximately 100' west of the Beechwood Circle intersection.
We have made a number field inspection and have consulted with the New York
State Department of Transportation (N.Y.S.D.O.T.) and the Dutchess County
Department of Public Works for guidance in this matter. if we utilize the same
criteria that the regulatory agencies use, it would seem that the installation of the
guiderail is not appropriate for this case.
There appears to be a run out area or "clear zone" of greater than 30' in length,
and there does not exist a slope and/or drop off the edge of the road that would
exceed the recommended minimum that would allow for a car to rollover (this is
assumed that the car is traveling at recommended speeds).
Keeping consistent with the N.Y.S.D.O.T. recommendations that this "clear zone"
be maintained and the car be allowed to travel off the road and come to a safe
stop, the guiderail should not be recommended to preserve the integrity of the
adjacent lawn area.
It is recommended that the Town might want to consider at some point the
removal of this vertical curve. This would not only improve the sight lines along
the roadway, but would improve the intersection sight distance from each of the
driveways in the area. If the Town has a long range plan this might want to be
included on it.
Joseph E.Paggi,Jr.,P.D. Ernst Martin,Jr.,PD.,L.S. Charles R.Del Bene,Jr.,P.D.
Constance 0. Smith - 2 - January 17, 2001
Town Board
RE: MacFarlane Road
If there are any questions on the above, please do not hesitate to contact this
office.
Very ly yours,
r �
�oseph E. Paggi, Jr., P.F.
JEP:Iaw
cc: Hon. Vincent Bettina, Councilman
Hon. Joseph Paoloni, Councilman
Hon. Joseph Ruggiero, Councilman
Hon. Robert Valdati, Councilman
Hon. Gloria Morse, Town Clerk
Hon. Graham Foster
Albert P. Roberts, Esq.
Michael Galante
EASEMENT AGREEMENT
THIS AGREEMENT, made the day of May, 1985, between
CHARLOTTE CALO and MARIA S. DEFAZIO, residing at 3 Foreman
Place, Beacon, New York, and the TOWN OF WAPPINGER, a municipal
corporation with offices at Mill Street, Wappingers Falls, NY
W I T N E S S E T H:
WHEREAS, CHARLOTTE CALO and MARIA S. DEFAZIO, are the owners
I
of premises described on the northerly side of McFarland Road,
in the Town of Wappinger and more particularly described on
Schedule "A" attached hereto, and
WHEREAS, there presently exists drainage pipes on said
property, and
WHEREAS, there may be a future need to place additional
drainage pipes on said property,
NOW, THEREFORE, in consideration of the sum of ONE ($1 .. 00)
DOLLAR and other good and valuable consideration, in hand paid,
CHARLOTTE CALO and MARIA S. DEFAZIO, do hereby remise, release
and forever quitclaim unto the TOWN OF WAPPINGER, its successors
and assigns a right of way of ingress, and egress from and to
McFarland Road over said property described in Schedule "A" for
the purpose of maintaining all existing and any future drainage
t
now or heretofore placed on the property as described in said
1
Schedule "A" .
IN WITNESS WHEREOF, CHARLOTTE CALO and MARIA S. DEFAZIO, do
hereby execute the within Easement on the 1, day of May, 1985 .
CHARLOTTE CALO
�J
i
1 I
MARIA S. DE 'AZ O
"JANELM '
t'dP d'tJala � `
46 �w a
sfa � un'k
19
STATE OF NEW YORK )
) SS. :
COUNTY OF DUTCHESS )
On this day of May, 1985, before me personally came
CHARLOTTE CALO and MARIA S. DEFAZIO, to me known to be the
individuals described in and who executed the foregoing
instrument, and acknowledged that they each executed the same.
WF
NOTARY PUBLIC
' '
Notary PL,hlic„ cjt�jt gat Y
4t�at <'(°s"
i
Qualified in Dotd)os� County
i
SCUEDM A
ALL that certain plot, piece or parcel of land, situate, lying and being
in the Town of Wappinger, County of Butchess and State of New York, being more
particularly bounded and described as follows:
BEGINNING at a point on the northerly side of McFarland Road, said point
being in the southeast corner of lands now or formerly of Croshier and said
point being the southwest corner of the herein described parcel; thence leaving
said McFarland Road and along lines of lands now or formerly of Croshier Borth 150
26' 00" West 288.16 feet along a stone wall and South 590 11' 00" West 72.35
feet along a stone wall to a point, thence along lines of lands now or formerly
of Faverio North 42' 20' 00" West 32.61. feet along a stone wall and North 17'
12' 00" East 116.48 feet along a stone wall to a point, thence along lines of
lands now or formerly of Newburgh Associates North 240 38' 20" East 109.75
feet to a point, thence through other lands of Hirschmann South 701 00' 45"
East 522.04 feet and South 18' 39' 50" West 366.19 feet to a point on the northerly
side of McFarland Road, thence along the northerly side of McFarland Road North
61' 27' 00" West 1.78 feet along a stone wall, North 740 26' 00" West 125.32
feet along a stone wall, North 76' 42' 55" West 73.53 feet and South 88' 56'
00" West 99.00 feet to the point or place of BEGINNING.
EASEMENT AGREEMENT
I
THIS AGREEMENT, made the-c-i6 3ay of June,1 1985 , between
CHARLOTTE CALO and MARIA S. DEFAZIO, residing at 3 Foreman
Place, Beacon, New York , and the TOWN OF WAPPINGER, a municipal
corporation with offices at Mill Street, Wappingers Falls, NY
W I T N E S S E T H:
WHEREAS, CHARLOTTE CALO and MARIA S. DEFAZIO, are the
owners of premises described on the northerly side of McFarland
Road, in the Town of Wappinger and more particularly described on
Schedule "A" attached hereto, and
WHEREAS , there presently exists drainage pipes on said,
property, and
WHEREAS, there may be a future need to place additional
drainage pipes on said property,
NOW, THEREFORE, in consideration of the sum of ONE ($1. 00)
DOLLAR and other good and valuable consideration, in hand paid,
CHARLOTTE CALO and MARIA S . DEFAZIO, do hereby remise, release
and forever quitclaim unto the TOWN OF WAPPINGER, its successors
and assigns a right of way of ingress and egress from and to
McFarland Road over said property described in Schedule "A"
for the purpose of maintaining all existing and any future
drainage now or heretofore placed on the property as described
in said Schedule "A" .
IN WITNESS WHEREOF, CHARLOTTE CALO and MANIA _—DEFAZIOr
do hereby execute the within Easement on the day of
June, 1985 .
'X0
CHARLOTTE CALO
MANIA S. DEFAZIO\
STATE OF NEW YORK
) SS. :
COUNTY OF DUTCHESS
On this Vday of June, 1985, before me personally came
CHARLOTTE CALO and MANIA S. DEFAZIO, to me known to be the
individuals described in and who executed the foregoing
instrument, and acknowledged that the , each executed the same.
k
DoR(YTRI(14,SiVll'"-�
�,UBUC �TAH
gF9FT IN DUTCHI':SS
No,6206075
('(IMM�SSCN
2
i
4
r
DESCRIPTION
DRAINAGE EASEMENT
LANDS OF DEFAZ.IO AND. CALO.
TOWN OF WAPPINGER
All that certain lot , piece or parcel, of land situate in
the Town. of Wappinger , County of .Outchess , State of New
York 'and being. more accurately bounded and described as
follows :
Beginning at a point on the northerly side of M.c Farland
Road , said paint also being a corner of lands N/F
Newburgh Associates . Thence from said point of beginning
and- along - the northerly line of Me Farland Road N 62-02-40 W
1 . 78 ' and N ,75-01-40W 120 . 01 , thence through lands of
.. DeFazio and Cato on the next two courses and distances ,
N 14-58-20 E 25. 01 , and S 75-01-40 E 123 . 11 ' to the lands
N/F Newbu.rgh 'Associate's , .thence along lands N/F Newburgh
Associates S 18--04-10 W 25 . 44 ' to the point or place of
beginning.
Containing 0 . 07± Acres
WC :wc
TOWN OF WAPPINGER
SUPERVISOR - COUNCILMEN
LOUIS D. DIEHL ` L.OUIS C.CLAUSEN.
,ec{,;'„ `•� - LFIF W. JEnlsEN
NICHOLAs S, JOHNSON
SUPl, by WIGHWAY$ - - - �' `
WILLIAM P. HORTON FRANK P. VFR$ACE
TOWN CLERK ' S 0F1~ ICE
MILL STREET
WAPPINGERS FALLS. N. Y. 12590
ELAINE H. SNOWDEN
TOWN CLERK - -
Feb. 15 , 1977
k
Please be. advised that at the. regular meeting of the Town.
Board of the Town of Wappinger held Feb. 14, 1977, the correct
spelling for a. 'own Poad has been officially determined as
MacFarlane Road. It has been spelled in different ways for the
past several :years an& Ripon request of one of our ,resider>ts, the .
Town Clerk researched records to determine the proper speig:.. _
We would. appreciate .it.. if. yov would correct your ,.r.ecords, .
if necessary, so that it is spelled correctly "MacFarlane
Yours truly,
Elaine H. Snowden
'Fawn Clerk
r
J O H N T . S L O P E R fzEE-lancE cltama a,lWa and wz!tEz
MAC FARLANE ROAD WAPPINGERS FALLS, N. Y. 12590 PHONE (914) 297-6574
PETER PANNE JOTS WILLIAM T. GOTE
fan 5,
Supervisor Louis D. Dlebl
Yawn of Wappinger
Mil. Street,
Wappingers Falls, N.Y. 12390
Dear SupervIsorDiehl:
nalosed please fired oopies of m correspondence with Mrs. Charles D.
White, presently of Cold Spring, wbose husband originally named this rod
in hang of John MacFarlane newer owner of the old Ptrlling Farmt,"
We would like to see the name correctly li tsd n street signs and
r4 cps -- with the correct spelling of "MecF RLANE .�
i might emphasize that we do not seek a name g -- only a
0 OUR.0 U IML- This should not (l should think) require a. public hearing
If yott deem it necossary, 14 ill be willing to go out and obtain
sic
natures on a petition, from lean -term residents , for this correction.
If nsoessary, l stond ready and, willing to lay your costs for new
$treat signs out of my town Pooket.
Tito enclosures are self-explanatory. Please sdvist the undersigned
how beat to proceed with this protect.
Thank you for your attention to all thlis.
Very cordially yours,
30h T. Sloper
ore ir49. Blaine Snowden
file
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__ 2#aaK'Enl�¢'lf R.ANE H, sijoripEN
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MAC F'ARLANE ROAD WAPPINGERS FALLS, N. Y. 12590 PHONE (914) 297-6574 -
PErER PANNE 107'S WILLIAM T. GOE
Dec 30, 1976
Mrs. Charles Vftite
Box 72,
Cold Spring, N.Y. 10516
Dear Mrs. White:
Pursuant to our conversation of last fall, if you could provide me with
any documentation you may have (.t.n addition to your statement) , l shall
obtain sIgnatures on a petition to present to the Town Board, asking that
street signs and road maps be r" g to read "Macfarlane" Rc3d.
A brief history of this property and, especially, your oven relationship
to Mr. John (?) MacFarlane., would be most helpful,
I have some Bald (and current) deeds, as well as other legal documents,
to back up your (OUR) claim!
Your cooperation would be most appreciated 4 A stamped, self-addressed
envelope is enclosed.
Thank you for your attention to.t'he above .
season s greetings, and,
Very cordially,
Toe d o Sloper - -
Lanza e-#a'L1mE12f:
VaueLc1y,
��Ze �verti.rt9 �J UELITS
��**(NEW"URGH-BBEACOpN)
tYlp£Zl3p,/Up LL��+CiIE�S (CJ VELS7S -
C��.CL¢I28YLIZ�L"]LL G7EYG�LYLtG
�8[LL012 JZE£ �ZE�.,S,
TOWN OF WAPPINGEk
$UZ'KRYISOR - _ _ COUNCILMEN
LOUIS D. DIEHL 4 LOUIS C. CLAUSEN
y _ - LEJr W. JENSEN -
a _
sU PT: OF HIGHWAYS NICHOLAS S. jOHNSON
1
l: W1LLIAM P. H'ORTOti _ PRANK P, VERSAGE.'
TOWN CLERK ' S OFFICE
MILL STREET
WAPPINGERS FALLS, N. Y. 1.259L)
ELAINE H. SNOWDEN
- - TOWN CLERK -
MEMO TO: Louis Clausen and Leif Jensen, Coancilinen
FROM: Elaine Snowden, Town Clerk
SUBJECT: John Slopers request to correct spelling of McFarland/McFarlane Rd.
Dear Lou and Leaf:
I have received a cope of a .Death Certificate from the NYS Dept.
of Health in Albany for one John M. MacFarlane. This, in my mind,
substantiates John Slopers claim as to the spelling of the above
subject Roam..
I've checked with the Dutchess Co. DOT, and all we have to do, in
order to get them to change the spelling on their maps, is to forward
an adopted Resolution.to them, and, they said this is all that is needed
for the State DOT.
I had a few spare moments on Friday, and whipped up the enclosed
resolution. Don't know if you want to use it or not; 'will leave; that
up to your good judgement. Nothing ventured, nothing gained! ! :
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' LATNE H SNOW-DEN
2-4=77
Dear Jon,
For lack of something better to do., I :decided
to play around a little; and try my hand with
resolution writing.. (Actually, l'm trying :ta
become Bi11 Balgers 11.
Anyhow--
any comments or corrections would be apprec: ated
I've checked with the County D&P, :and all 7 have
to -do is foxTaard :to theta an adopted Re.soin ion
in order, for 'them to clange. .their;maps:
Thank you forur kind and undivided attention
this .idiosyncracy of :mine.
rVVI-
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2006-240
Resolution of Support for Study of Turning Lane on Route 9 and MacFarlane Road in the
Town of Wappinger
At a regular meeting of the Town Board of the Town of Wappinger, Dutchess County,
New York, held at Town Hall, 20 Middlebush Road, Wappingers Falls,New York, on
November 27t`, 2006.
The meeting was called to order by Joseph Ruggiero, Supervisor, and upon roll being
called,the following were present:
PRESENT: Supervisor - Joseph Ruggiero
Councilmembers - Robert L. Valdati
Vincent F. Bettina
Joseph P. Paoloni
Maureen McCarthy
ABSENT:
The following Resolution was introduced by Councilwoman McCarthy and seconded by
Councilman Paoloni.
WHEREAS, there is a large volume of traffic on Route 9 at the intersection of Route 9
and MacFarlane Road, and
WHEREAS, residents have expressed concerns about the safety of turning off of Route 9
traveling North onto MacFarlane Road, and
WHEREAS, Town Engineer Jay Paggi has stated in his letter dated October 23rd, 2006,
that a deceleration lane would provide safer access to MacFarlane Road off of Route 9
NOW THEREFORE, BE IT RESOLVED as follows:
1. The recitations above set forth are incorporated in this Resolution as if fully set
forth and adopted herein.
2. The Town Board of the Town of Wappinger hereby requests that the New York
State Department of Transportation conduct a study of the safety of traffic on Route 9 turning on
to MacFarlane Road and requests that a feasibility study be conducted to have a deceleration lane
placed on Route 9 turning onto MacFarlane Road.
The foregoing was put to a vote which resulted as follows:
JOSEPH RUGGIERO, SUPERVISOR Voting: AYE
ROBERT L. VALDATI, COUNCILMAN Voting: AYE
VINCENT F. BETTINA, COUNCILMAN Voting: AYE
JOSEPH P. PAOLONI, COUNCILMAN Voting: AYE
MAUREEN McCARTHY, COUNCILWOMAN Voting: AYE
Dated: Wappingers Falls,New York
11/27/2006
The Resolution is hereby duly declared adopted.
Z�rOHN C. MASTERSON, TOWN CLERK
The Workshop Meeting of the Town of Wappinger was held on September 8,
2003 at the Town Hall, 20 Middlebush Road, Wappingers Falls, New York.
Supervisor Ruggiero opened the meeting at 7:30 p.m.
Present:
Joseph Ruggiero, Supervisor
Robert Valdati, Councilman
Vincent Bettina, Councilman
Christopher Colsey, Councilman
Joseph Paoloni (arrived at 7:32 p.m.)
Gloria J. Morse, Town Clerk
Others Present:
Charles DelBene, Paggi, Martin & DelBene
Al Roberts, Attorney to the Town
Graham Foster, Highway Superintendent
* Lazenka Property MacFarlane Road.
Jay Paggi went over an aerial view and explained; what we have here is
MacFarlane Road traveling in a westerly easterly direction and its
intersection with Beechwood Circle. You can see the horizontal configuration
of MacFarlane Road as it traverses westerly to easterly and you can see that
there are a number of sharp curves, especially in this area right here. There
is a reverse curve right here, (double ss) and then another sharp curve that
passes Beechwood Circle. Compounding the problem is the sharp crested
curve to the top of the curve just west of the intersection of Beechwood Circle
and down again. You are going around a curve and up and down a curve. It
poses a number of problems for individual residents that live on the road that
are backing out of the driveways. For this person on MacFarlane Road where
there is a dip and a sharp drop off the road, it also poses problems for the
general traveling public on MacFarlane Road. Those moving along at speeds,
say 30 MPH, 32, 29 and because of the existing geometrical deficiencies in
the road they don't have good site ahead of them and they don't have good
site to see the people exiting and entering onto the road from the driveways.
1
spoke about by about six to eight feet. Performing both of those tasks would
make the road geometrically correct and would provide adequate site
distance for all the driveways and side roads. There are funds that we could
apply for from the state to do the project. This would also benefit not only
adjacent properties, but the general traveling public that takes MacFarlane
Road on a daily basis. What we have found over the last few years is from
Hopewell Road out to Route 9 MacFarlane has become a through road
because people are looking to avoid the Old Hopewell Route 9 intersection
and it does appear to be more highly traveled most recently than in the past.
Councilman Valdati— The driveway that currently exists, in order to be
changed to the other position would require the cutbacks and so forth to
make that a safe location.
Tay Paggi---No, stay where it is. You leave the driveway where it is. When
cut back, that fence just east of there, it would give the exiting driver better
site distance more specifically to the east looking down the hill.
Supervisor Ruggiero—I have been to the property of Mr. Lazenka and when
you sit in the car and you turn and look its dangerous for the car coming over
the hill and coming out.
Mr. Lazenka-- As Mr. Paggi said, over the years it has become a thorough
fare from Route 9 over to Old Hopewell and one of the concerns in addition to
what Mr. Paggi had described, is the fact that that is a 30 MPH posted road.
Based on his observations, many cars do not adhere to that speed limit.
From what he has been told this house was constructed thirty years ago. He
has resided there since, that the pole on the corner of his property and the
optional warning sign has been knocked down. The house across the street
has a satellite dish that has been knocked down in the past. A motorcycle
did not negotiate the curve going from my house towards the Couch's house
and had gone straight through the woods. It's around a dangerous corner
and I refuse to back out of there because it is extremely dangerous. The
3
problem is, as Mr. Ruggiero said, he has sat in my car and observed the
situation and on my left side, which is from the Couch's residence, not only is
the curve on the other side of this picture, but there is the crested hill, and on
the Couch's residence the hill is not graded whatsoever. It drops about four
feet off at the edge of the road. He has extremely limited visibility at
optimum conditions. One of the problems is, during inclement weather when
the snow plows come through, he goes over and he shovels that to try to get
as much visibility as he can. It's not a question of if, it's a question of when
there is going to be a serious issue there. There has been some close calls.
He can not see at all pulling out of there. There is going to be a serious injury
or fatality because someone is going to T-bone him in his door or his child's
door on the passenger side. He is pleading with the Town. Mr. Foster, Mr.
Paggi, Mr. Ruggiero, and Mr. Roberts have all come out. As Mr. Paggi said
this is the best optimum situation that they have come up with to minimize.
There is no guarantee that this is going eliminate anything, but I think the
question is, there is a dangerous situation right here that we have to try to
minimize.
Mr. Paoloni---Asked Graham Foster and Jay Paggi, how does this road
compare with Shale Road, Montfort Road, it seems like a similar problem.
Mr. Foster---- Said there is no comparison. We have gone on record to say
there is adequate site distance on Shale and Montfort Roads. Jay and he
when out and checked it. There is not much you can do there without some
major work and it will only give you minor improvements. This could
realize some major improvements. If you went for option II you may want to
expand it a little further to the west where you have some driveways. It's a
series of driveways with very poor site distance in that section of the road.
This did surface with the building of Mr. Lazenka's house. We have had
problems there before. The gentleman across the street had requested a
guide rail a while back that the board had discussed. Jay and he had looked
4
into it and it did not meet the criteria for a guide rail. We had, over the years
placed some additional arrows to warn the traveling public that there is a
vertical horizontal curve. It been a problem for a while, but its surfaced with
Mr. Lazenka's house being built and the problems he has incurred. If that lot
were subdivided today, it would not be allowed. An existing lot has the right
to access to the road.
5
PAGGI,MARTIN&DEL BENS LLP
Consulting Engineers & Land Surveyors
56 Main Street
Poughkeepsie,New York 12601
845-471-7898
845-471-0905(FAX)
June 28, 2004
Town Board
Town of Wappingere��
P.O. Box 324
Wappingers Falls,New York 12590
Attention: H n Hon. Joseph Ruggiero, Supervisor
Reference; MacFarlane Road Sight Distances
Dear Supervisor Ruggiero & Board Members:
As per your request, this office obtained sight distance measurements on MacFarlane
Road in the area of Beechwood Circle. Two types of sight distances were measured,
one being "Stopping Sight Distance" for a potential stop sign at the intersection of
Beechwood Circle and MacFarlane Road and "Stop Line Sight Distance" for the
driveway located at 29 MacFarlane Road
The sight distance that was measured, "Stopping Sight Distance", along MacFarlane
Road uses a driver's eye height of 3.5' and an object height of 1.5'. Stopping sight
distance is the distance from the driver to the object.. This stopping sight distance is
for a vehicle traveling east on MacFarlane Road and his or her ability to stop for a
car or other obstruction, which is at a stop sign at the intersection of MacFarlane and
Beechwood Circle.
As you can see on the profile, the stopping sight distance was 220 feet. The problem
with this sight distance is the vertical curve in the road at Sta. 3+75. Design
standards indicated that for a running speed of 36-40 mph, the stopping sight
distance should be 275'-325' minimum and probably more due to the negative grade
of the roadway. The stopping sight distance measured is well short of the design
minimum. Subsequently, if this stop sign was placed for the traffic traveling east on
MacFarlane Road, a driver may come over that hill and not have enough time to stop
before hitting the vehicle standing at the stop sign.
With the stopping sight distance being so short, it would be the recommendation of
this office not to install the stop sign at the intersection of MacFarlane Road and
Beechwood Circle for the traffic traveling east on MacFarlane Road.
In the second case, the "Stop Line Sight Distance" is the distance a driver can see
while stopped in the driveway. This measurement is taken from a point 12 feet back
from the edge of the road and a height of 3.5 feet.
Joseph E.Paggi,Jr.,P.E. Ernst Martin,Jr.,P.E.,L.S. Charles R.Det Bene,Jr.,RE,
Hon. Joseph Ruggiero 2 - June 28, 2004
RE: MacFarlane Road
This simulates the drivers location and eye height when trying to pull into the road.
At this point in the driveway, the distance is measured to an object with a height of
3.5 feet. The existing driveway is located near a crest in the vertical curve. As you
can see on the profile the sight distance looking east is 10 1.1 feet, and the sight
distance looking west is 602.8'. The sight distance looking east is insufficient in
comparison to the 300'minimum required sight distance in with the Town Highway
Specifications.
We then proceeded to take "Stop Line Sight Distance"measurements from a
potential driveway location approximately 75' west of the existing driveway. As you
can see on the profile,the sight distance looking west is 470.9 feet, and the sight
distance looking east is 135.0 feet. Again, the sight distance to the east is
insufficient in accordance with the Town Highway Specifications.
In addition to the sight distance measurements, we also timed vehicles travelling on
MacFarlane Road heading east to determine an average speed of travel. We found
that the average speed was approximately 36 mph. At 36 mph, the additional sight
distance to the east of the potential driveway, which is 33.9' would afford the driver
approximately .64 seconds to react and maneuver his vehicles.
With respect to stopping sight distance making a left hand turn into the driveways, it
would appear that the most advantageous location is the most easterly driveway
which provides adequate stop line sight distance for a left hand turn into the property
as opposed to the most westerly driveway.
We then looked at the available stopping sight distance on MacFarlane Road for a
vehicle traveling in a westerly direction and a car pulling out of each driveway. As
you are aware, there now will be a stop sign located at the intersection of McFarlane
and Beechwood so theoretically the traffic will be starting from a standstill and
travelling uphill at that intersection. It appears that the stopping sight distance
available for the existing driveway, which is the most easterly, is in excess of 275',
and the stopping sight distance for the proposed, or most westerly driveway, is 133'.
It should be pointed out that both locations of the driveways for the subject property
on MacFarlane Road do not meet minimum standards, and if this lot was proposed to
be subdivided today, it would not be allowed to. However, this was an existing lot,
and a building permit was applied for approximately five years ago. At that point in
time, a determination was made by the Highway Superintendent where the most safe
location along the existing frontage was, and there the driveway was approved.
These numbers are being given to the Board for their information and understanding
of the situation. It should not be construed as a recommendation that this driveway
meets any acceptable standards.
Hon. Joseph Ruggiero - 3 W June 28, 2004
RE: MacFarlane Road
We contacted the Town's traffic consultant Fredrick P. Clark by telephone, and
although he was not able to make a site visit, he indicated that the driveway at a high
point or crest, which is the existing driveway, generally speaking would be the most
appropriate. That, coupled with the fact, that the stopping sight distance for the
traveling public on MacFarlane Road is better at this location would lead me to
believe that this is the best situation we could achieve for the driveway along this
frontage. This statement is made with the understanding that neither of the two, or
anywhere in between, meets existing codes, and is being made in my professional
judgement.
At the last Town Board meeting statements were made by the public that Graham
Foster and our office did not care about the safety of the traveling public and/or the
residents of the subject house on MacFarlane Road. The Board is advised that that is
far from the truth and, in fact, Mr. Foster and 1 have deliberated over this situation
for a lengthy period of time and have given considerable time, thought and energy
into making our professional judgements.
Please keep in mind, that the Highway Superintendent must not only be concerned
with the public as they leave this property, but also the traveling public on
MacFarlane Road.
if there are any questions or comments,please do not hesitate to contact this office.
Vveyltruly yos,
�or-eph E. Paggi; Jr4' .
JEP:law
cc: Town Board: File
Hon, Gloria Morse
Albert P. Roberts, Esq.
Hon. Graham Foster
FORM 556X N. X.DEED—BARGAIN AND SALE_(From a Corp...rion)
_�
Ohio Amp'
$n
.
Made the
d dad of September
Xin.eteen. Hundred and Seventy-One
i9etwkn AGGRESSIVE INDUSTRIES CORPORATION, a New York
Corporation, having an office c/o Stuart R.
Shamberg, Esau. , 6 South Moger Avenue, Mt. Disco,
County of Westchester and State of New York,
party of the first part, and
THE TOWN OF WAPPINGER, a municipal corporation,
organized and existing under and by virtue of
the laws of the State of New York, with its
Town Hall situate in the Village of Wappingers
Falls, Town of Wappinger, Dutchess County,
New York,
part y of the second part,
WttnrimP1 g that the party of the first part,in consideration of --------------
ONE-----------------------------------------------Dollar ($1.00 )
lawful money of the United States, actual consideration
paid by the party of the second part,does hereby grant and release unto the
part y of the second part, its successors and assigns forever, all
that certain piece or parcel of land situate, lying and being in the
turn n- War�nin.aP _ County of Dutchess and State of New York, more
particularly bounded and described as follows:
BEGINNING at a point on the. Westerly line of McFarland Road, said
point being distant South 8-33-20 West 457.09 feet and South 11-49-20
West 422.09 feet from the intersection of said McFarland Road with the
Southerly line of Hopewell Road, running thence along said Westerly
line of McFarland Road the following; South 11-49-20 West 35.00 feet
to a point; South 33-41-20 West 54.08 feet to a point; South 65-39-30
West 46.10 feet to a point; South 86-25-00 West 51.83 feet to a point;
North 78-38-00 West 16.00 feet to a point, thence leaving said road
line and running over and thru lands of Herbert Stenger the grantor
herein the following; North 65-28-10 East 103.79 feet to a point; and
North 43-21-08 East 76.00 feet to the point of beginning.
Containing 0.083 acres of land be the same more or less.
This conveyance is made by the party of the first part to the party
of the second part for road purposes.
This conveyance is made by the party of the first part in the usual
course of business and does not constitute all or substantially all
of the' assets of the corporation.
WTI- ESS COUNTY CLERK'S OFFICE
SLG@i/ED 01 THE SAY QE3
Liz
�u9 RECORDED 9 N:
Y,P
Soo
.fir GE R�J��}ai+�9�€� ��'
�. .Tv ;APR072 =
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CLERX c
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L19ER 132 Fifri
- ' EISER 132 PAGE h_0
Of ugri4rr with the appurtenances and all the estate and rights of the party
of the first part in and to said premises,
00 baur and to 401b the premises herein granted unto the party of the
second part, its successors and assijns forever.
�n�rrsenzx of
In Witursa W4inrnf. the
party of the first part has caused its corporate
seal to be hereunto afflxed, and these presents
to be signed by its duly authorized officer
this day of September
Nineteen Hundred and Seventy-One
AGGRESSTAVE INDU
By
l�k . a .xoG • He ne ert Stegr, esident
= st oil . 1
m
}� �ycn=
rt v to a�,,.•♦�.
-0tatr of-NM I#nrk So.� _ On this day of September
CinnntH of MUTCHESS Xineteen Hundred and Seventy-One
before; me personally came
` HERBERT STENGER
+t 'YrL personally known, who, being by me duly sworn, did depose and saythat
Hopewell Junction, New York that he is
:ttiedent Of AGGRESSIVE INDUSTRIES CORPORATION
e.cfi�pQr on described in, and which executed, the within Instrument; that he
n c• ' ,k no-Ws tfaegseal of said corporation; that the seal affixed to said Instrument is
�rprecte seal that it was so affixed by order of the Board of Directors
i rlld 0 ratio.' und_ that he signed his namesthereto by like order.
ldl
Notary Pubilic
C 'a?- N 61. *°
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. �
STATE Of NEW YORK, COUNTY OF SS SATE OF NEW YORK. COUNTY,Of SS:
On the day of 19 before me On the day of �s' ,1 before me
personally came personally came
to me known to be the individual described in and who to ine known to be the individual d sra bed.in'and who
executed the foregoing instrument, and acknowledged that executed the foregoing Instrdl entjj and`al*-nowledgcd that
u_
executed.the same. executedthe-,same =t '
STATE OF NEW YORK,'COUNTY OF ROCKLAND SS: STATE OF NEW YORK. COUNTY OF IS:
On the 2® day of April 19 73,before me On the day of 19 before me
personally came urKleinmance D. Kleinman personally came
to me known, whI,o, being by me duly sworn, did de se and the subscribing witness to the foregoing instrument, with
say that he resides at No. 30 White ,Birc1 Dr:1v ',whotn I am,personally acquainted, who, being by me duly
Pomona,. New York, sworn,did depose and say that he resides at No.
that he is the Secretary
of Dutchess 3 Realty Corp. that he knows
,the corporation described
in and which executed the foregoing instrument; that he to be the individual
knows the seal of said corporation; that the seal affixed described in and who executed the foregoing instrument;
to said instrument is such corporate seal; that it was so that he, said subscribing witness, was present and saw
affixed by order of the board of directors o ora- execute the same;and that he,said witness,
tion, and that he signed h i n me h o by like order. `at the same time subscribed h name as witness thereto.
SALTZMA.F
WARYWARYp338#18 STAsti os . 1I{D#2K.
gad'G4i1`
rt � 'sr Rockland
plSesirs6ssien E o n-
WITH COVENANT AGAINST GRANTOR'S AOTS SE CTXON.: -
TITLE NO. BLOCK
LOT
DU'TCHESS"3 REALTY, CORE.
COUNTY OW-TOWN .
. TO
`iOWb7. OF. Tr7APP2'NGER Recorded-at.,Request of
-: CHICAGO:TITL.E,INS.URANCE COMPANY
STANDARD FORM OF,NEW=YORK:"DOARD'OF TITLE UNDERWRITERS Return by Mail,ao,
Distributed 6y
y
INSYJRANCE'.COMPANY .,: ���rr].. / Zip No.
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WTCH>SS QQU TY CLERK, O z
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Standard N.Y.B.T.U.Form 8002— — -Bargain and Sale Deed,with Covenants against Grantor's Acts—Individual or Corporation.(single sheet)
CONSULT YOUR LAWYER BEFORE Sl6NINGv THIS INSTRUMENT-T41S INSTRUMENT SHOULD BEUSED BY LAWYERS ONLY
THIS INDENTURE,made the 20th day of April nineteen hundred a� ' seventy-three
BETWEEN DUTCHESS 3 'REALTY" CORP. , a domestic corporation• ith
its.. off.ice c/o Kleinman & Saltzman,.,Esgs., 2 New Hempstead Road=
IllNew City, New York,
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party of the first part,and . .TOWN OF WAPPTNGER, a municipal corporation,
with its office at !Town Hall, Wappinger Falls, New York,
party of the-second part,
WITNESSETH,that the party of the first part,in consideration of ten dollars and other valuable consideration
paid bythe party of the second part,does hereby grant and release unto the party of the second part,die heirs
or successors and assigns of the party of the second part forever,
ALL that certain plot, piece or parcel of land, with the buildings and improvements thereon erected,situate,
lying and being in the'- - Town of Wappinger, County of Dutchess and the
(State' of New York.
Beginning at a point on the existing Southerly line
f -MacFa.rlane Road,- said point being the intersection of,.the
southerly •li.ne-of said MacFarlane Road with the Easterly line
of lands of now or formerly Zanett and running thence along
4-hExsting S..outherly Line of said MacFarlane Road, the '
fe.; r
ollowing: South 68-15-10 East 396.83 feet to a point; thence
�South. 84'-'00-30 East 488.49 feet to a point thence leaving
said line,and running along the Westerly line of lands of
now or formerly Lanzi, South 6-52-40 West 9.21 feet to a point;
Thence leaving said line and running over and through lands
bf Dutchess 3 Realty Corp., the grantor herein, the following;
North 84-56-50 West 307.76 feet to a point; thence North 81-
9-06 West 189. e North 74 09 feet to a point',then, -47-00 West
I129.54 feet to a point, thence North63 59-00 West 186.94 feet
o a point; 'thence North' 72�22-60 Vest 71,24 feet to a point
a point on the -,Easterly line of lands of now or formerly
Poresaid Zanett, 'thence along the. Easterly line of lands
now or formerly said Zanett, North 4-28-50 East 14.52 feet
to the point of beginning containing 9,680 square feet of land
be the same mare or less.
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TOGETHER-with all right, title and interest,if any, of the party of the first part in and to any streets and
roads:abutting,the above aescr➢be&pre'mises to the center lines thereof,TOGETHER with the appurtenances
"F and all the"estate and rights of,theparty of the first part in'and,ta said premises; TO HAVE AND TO
;"TOLD the premises herein granted unto-the'party of the second part, the heirs or successors and assigns 64
the paity.of the second,part forever.
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1i AND the party of the first,part covenants that the party of the-first part has not done or suffered anything
Whereby the said premises have been encumbered in any way whatever, except as aforesaid.
AND the party of the first part, in compliance with Section 13 of the Lien Law;covenants that the party of
the first part will receive the consideration for this conveyance and will hold the right to receive such consid-
eration as a trust fund to be applied first for the purpose of paying the cost of the improvement and will apply
the same first to the payment of the cost of the improvement before using any part of the total of the same for
any other purpose.
€,The word "party" shall be construed as if it read"parties"whenever the sense of this indenture so requires.
if IN WITNESS WHEREOF,the party of the first part has duly executed this deed the daydi first above
j written.
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