FILED: ONONDAGA COUNTY CLERK 11/16/2016 09:25 AM STATE OF NEW YORK CICERO TOWN COURT COUNTY OF ONONDAGA INDEX NO. 2016EF4347 NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 11/16/2016 TOWN OF CICERO, Petitioner, MOTIONS -vs- Case No.: 15070289 LAKESHORE ESTATES LLC and OVADIA AVRAHAM, Hon. David Bruffett Respondents. Respondent Ovadia Avraham ( Avraham ) submits these motions set out herein below as an addendum and in addition to those pleadings and submissions of evidence heretofore submitted to the court to date. Avraham respectfully submits the following for the court s consideration: MOTION TO REMOVE OPPOSING COUNSEL-CONFLICT OF INTEREST Opposing attorney Mr. John Marzocchi ( Marzocchi ) and his law firm are named Defendants in a Federal Complaint filed -in U.S. district court by Avraham for, among other things, filing the present frivolous allegations and other misconduct including violating his constitutional and civil rights. It will be proven in Federal court the opposing attorney has been and is driven by a personal agenda and vendetta against Avraham, that he has pursued charges he knows are false, and that he has ignored impermissible conflicts of interests. Therefore, for reasons set out in detail 1
below, Avraham petitions the court to order the removal of opposing attorney and law firm from this case. MOTION DISMISS ALL CHARGES Prosecuting Attorney Not Properly Appointed Nor Taken Oath Of Office Prior To Filing Charges 1. Pursuant to Cicero procedures Respondent asserts, upon information and belief, attorney Marzocchi was not properly appointed nor has he taken an oath of office required to prosecute this case. Before the municipal attorney can act as prosecutor, the District Attorney (DA) must formally delegate in writing that responsibility to village and town attorneys. Once authorized by the district attorney to prosecute the zoning violation(s), the village or town attorney becomes an assistant district attorney for that specific purpose, and should immediately file an oath of office as such with the county clerk. Upon information and belief, none of the above steps or procedures ever took place, according to the Cicero town clerk. WHEREFORE, the premises considered, Avraham requests the court to dismiss all charges because the charges were and are being prosecuted by one not properly authorized to do so.,. MOTION TO ADJOURN PROCEEDINGS PENDING DISPOSITION OF THE FEDERAL ACTION 2. In the event the court does not dismiss all charges, Avraham petitions the court to adjourn all proceedings in this case pending the disposition of the above-referenced Federal Action, where it will be decided whether this action is due or is it driven and was 2
initiated and filed due to prejudice, racism, bigotry and hate and whether these and other misdeeds by Cicero Town employees and officials violated Avraham s civil and constitutional rights and whether petitioner brought this complaint against the Respondent with undue bias. Motion To Dismiss intentional - Improper Illegal Process Upon review it is clear that opposing attorney and the town of Cicero purposely deprived Avraham of his right to due process by sending legal notices to an address that does not exist. It is most reasonable to conclude that opposing attorney with minimal effort could have made sure Avraham receives the court documents addressed to Lakeshore Estates LLC, nut chose not to. Therefore, for this reason, since Avraham was purposely deprived of his right to due process (Avraham Affirmation), all charges must be dismissed. Motion To Dismiss Improper / Misconduct by opposing attorney On or about Wednesday on August 14, 2015, after having already commenced charges against me in Cicero town court, Avraham was served with a complaint filed by the town through the GNG law firm s John Marzocchi ( Marzocchi ). This complaint was filed with the NYS Supreme court and alleged the same allegations filed in the Cicero town court. The complaint requested I be ordered to dismantle the platforms and wooden tents I built at the lakefront. Upon information and belief, such action was never taken against a town resident prior to then. The same day these allegations were brought against me by the town of Cicero on advice from the Germain and Germain law firm and Marzocchi, Cicero, in an effort to target me specifically, amended/changed the definition of restaurants to include outdoor establishments whose primary function is serving food, counting on the argument that the primary business at my location is not food service. More 3
importantly, the Vendor Code violation with which I was charged pertained to exempts Restaurants. In other words, the violation with which I with on the morning in question could have been filed on the afternoon, and given no question exists that the Town Board s agenda is known weeks in advance, there also exists no question that Cicero Marzocchi and Neil Germain and the Germain and Germain law firm brought this action with malice and in furtherance of Cicero and others to undermine and prevent me from lawfully operating businesses on my property. The above-referenced parties filed the complaint in the morning knowing they could not legally file it in the afternoon. This action Avraham believe this demonstrates the true spirit behind filing these charges and this misconduct by the plaintiff and opposing attorney are a basis for dismissal and any other relief the court deems appropriate. Motion To Dismiss Street Vendor Permits Charge Inapplicability to Defendant 3. The minutes and the reasoning by Police Chief Mr. Snell and Wayne Dean, head of Cicero code enforcement, for adopting the ordinance, demonstrates this ordinance was not written for the local business community conducting business in their business facility, as is the case with Avraham s property, but for transient peddlers, hawkers, solicitors and street food vendors. (Def Ex Q) 4. Avraham operates an outdoor recreation and marine facility on his own property, at his own place of business, that includes a properly licensed food establishment, namely, a restaurant, as defined by the town of Cicero code. Consequently, Avraham is not a transient, peddlers, and Hawker, solicitors /or street food vendor. Seasonal Business 5. Upon review of the code, (Def Ex P) this ordinance was written for seasonal street vendors. 4
6. Being that the Marine and Recreation business is seasonal, by offering food services, Avraham is merely attempting to extend the earning period of his lakefront business beyond the summer months by offering services such as car side pickup, delivery, and party/family platters. Except for his Beer and Wine License, which is for period of 8 months, the respondent s health department food establishment license runs for period of 12 months. The petitioners cannot dispute Avraham s intentions nor what are his Business plans. TEMPORARY MOVABLE 7. Lacking water and sewer services, Avraham s kitchen consist of a new 30 fully self-contained mobile kitchen. 8. The respondent conduct is no different from many businesses offering food and other products inside their business. This includes food establishments/restaurants offering salad bars and stores such as Wal-Mart, Target and just about every other business in town. Double Jeopardy 9. As indicated in the attached 2011 order by Hon. Judge Walzyck, the respondent was charged with the same violation in 2010 and was found not guilty in 2011. In response, opposing attorney, on August 20, 2016, stated in open court, you honor that was in a different location. and in his sworn affidavit, opposing consul stated that this case has nothing to do with the 2010 matter. 10. In both instances opposing attorney misstated the truth in open court and in his sworn affidavit. The charges were for the same location and had everything to do with the 2010 charge. 11. In addition, the NYS/Onondaga County Department (HD) requires that all street food vendors obtain permission from the local municipality before a HD permit can be 5
issued. In both 2010 and 2015, the HD upon determining the Respondent is not a street vendor, issued Avraham a health permit waiving this requirement. 12. In addition, the HD upon review, in the respondent s case, waived other requirements usually reserved for street vendors because it determined Avraham is not street vendor but rather an established restaurant conducting business on his own property. Consequently, these charges should have never been filed against the Avraham, as they would have never have been filed against any other business person with an established business in this town. WHEREFORE, premises considered, Avraham request the charges against him be dismissed with prejudice. 13. Clearly, this action has nothing to do with code violations and has everything to do with the intentional violation of the Avraham s constitutional, civil and human rights, and as alleged herein and in the federal complaint, Avraham has and is being singled out for prosecution. 14. Upon information and belief and based on research conducted by the Defendant, never in the history of the Town of Cicero has a local business owner offering a new product and or service to his clients at his place of business, ever required to obtain a transient Peddler, Solicitor, Hawker or a Street Vendor permit. 15. The assertions set out above are but a few of the grounds supporting Avraham s constitutional and civil rights violations complaint now in front of the U.S. districtcourt. 16. Petitioners message to Avraham throughout this case has been clear : You are nothing and you have no rights in this town, a message driven by prejudice, hate, racism and bigotry. 6
WHEREFORE, the premises considered, Avraham respectfully requests the court to carefully examine these allegations, and after due consideration, dismiss all charges with prejudice. And award Avraham the reimbursement of all expenses and losses he suffered in association with this complaint Submitted this the 25 th day of October, 2016. Respectfully submitted, Dated 10/ 25/ 2016 Ovadia Avraham, Respondent Pro Se CC: John Marzocchi, Esq. 7