Photo by Howard Owens.
After an adverse ruling against the village of Alexander in a property condemnation case, the village and its code enforcement officer have filed a malpractice lawsuit against the Attica-based law firm and the lead attorney who handled the case.
The suit names as defendants Dadd, Nelson, Wilkinson & Wujcik, PLLC and attorney James M. Wujcik.
Wujcik, until last week, was county attorney for Genesee County. He served one term, which is two years.
County officials said the decision to replace Wujcik with Mark Boylan had nothing to do with the malpractice accusation.
Neither Legislature Chair Shelley Stein nor County Manager Matt Landers revealed any concern about Wujcik's job performance.
At Wednesday's organization meeting of the County Legislature, all Stein said about Wujcik was that he decided to pursue other opportunities. In response to an email from The Batavian on Thursday, Stein said she knew nothing of any lawsuit naming Wujcik and had no further comment.
"I'll learn with your readers," she said.
The Batavian submitted a Freedom of Information request to Landers requesting any letter of resignation or any written notice of termination, and Landers said there was no responsive document.
Landers said Wujcik had come to the end of a fixed two-year term. He did not resign and was "not encouraged to resign as his term was coming to a natural end."
The lawsuit was filed in August, and The Batavian learned of it after a person who did not include a return address on the envelope sent a copy to the publisher.
On Wednesday morning, The Batavian emailed a request for comment on the pending lawsuit to Wujcik at his law firm address and he has not responded.
Wujcik and the firm have retained legal counsel, The Batavian was told by a source, but those attorneys have yet to file a response to the lawsuit, and no hearing date has yet been set for an initial appearance by both parties in the Supreme Court.
Alleged malpractice suit
The plaintiffs are the village of Alexander and Daniel J. Lang. Lang is the code enforcement officer for the Town of Batavia, which has an inter-municipal agreement with Alexander (as well as other towns and villages in the county) to provide code enforcement services.
Until April 2023, Dadd, Nelson, Wilkinson & Wujcik provided municipal legal services to the village of Alexander.
In November 2015, Corfu-based developer and property management firm C&D Design, Build, Development, filed suit against the village and Lang alleging that a building owned by the firm at 3399 Buffalo St. had been improperly condemned in September 2013.
The village, under terms of its agreement with its law firm, selected Wujcik as a lead attorney to handle its defense, a position he held throughout most of the legal battle, which is now entering its 11th year.
The village dismissed the law firm and Wujcik sometime after Genesee County Supreme Court Justice Diane Y. Devlin issued a summary judgment in favor of C&D Design and its owner Gary Dominick, also a principal in the development firm Dominick & Daughters.
The village's lawsuit against Wujcik and his firm states that Alexander and Lang stand to incur significant monetary damages as a result of the summary judgment, which the suit blames on Wujcik's handling of the case after a previous ruling in favor of the village was overturned by an appeals court.
The potential monetary losses, which have yet to be decided by the court, will not be covered by insurance, according to the suit.
The suit alleges that Wujcik:
- failed to preserve and protect the rights of the village and Lang through the C&D proceedings;
- failed to respond to discovery demands;
- failed to oppose discovery motions, resulting in sanctions;
- failed to adhere to two separate orders directing the village and Lang to provide complete responses without objection to those discovery demands;
- failed to appeal the summary judgment in a timely manner;
- failed to raise appropriate legally viable affirmative defenses; and
- failed to communicate with the village and Lang to keep them informed of developments in the case.
"But for the defendants' (Wujcik and his firm) legal malpractice, plaintiffs (village and Lang) would have successfully defended the underlying lawsuit," the lawsuit against the Attica-based law firm states. "Plantiffs' actions with respect to C&D's property at issue in the underlying lawsuit were motivated only to address complaints regarding life and safety at the property owned by C&D. All of the plaintiff's actions were in compliance with the New York State Uniform Code. Plaintiffs' actions afford C&D due process with respect to actions taken by plaintiffs in the Zoning Board of Appeals and through an Article 78 proceeding. C&D did not avail itself of the opportunity to challenge plaintiffs' conduct prior to the commencement of the underlying lawsuit."
The suit states that because of the alleged malpractice, Devlin found in favor of C&D on Aug. 18, 2022, in a summary judgment (no trial) on its claim that its due process rights were violated and awarded C&D legal fees and expenses and ordered a hearing to determine the amount of C&D's damages.
"After entry of the Aug. 22, 2022 order, defendants failed to timely file a notice of appeal with respect to that judgment and failed to inform plaintiffs of the adverse judgment," the suit states. "Instead, defendants filed a frivolous motion to reargue on plaintiffs' behalf that had no chance of success because it was not the proper vehicle to challenge the court's ruling."
Foul odor
Events leading up to the "underlying case" began in the late summer of 2013 when at least two employees of Dr. Mary Obear, who operated a clinic in C&D's building, complained of foul odors in the building and were diagnosed with a respiratory illness.
According to court documents, the building was constructed according to Obear's specifications in 2012 and received a certificate of occupancy signed by Karl Bender, the village's code enforcement officer at the time.
In response to the complaints about the odor and ailments, according to Lang's statements in court records, Lang was granted access to the building on Sept. 4 by its legal occupants and commenced a visual inspection. Court documents state he discovered 37 code violations during that visit and that, coupled with the reported odors and illnesses, he condemned the building on Sept. 9, 2013, requiring Obear to immediately close the clinic.
The building was posted as condemned over the next two years, so at this point, Dominick filed a lawsuit alleging that the village condemnation was unnecessary and violated the law and his Constitutional rights.
He claimed that village leaders had a history of retaliating against citizens who complained about village actions and that he had been vocally critical of village decisions more than a decade earlier, suggesting that the condemnation of his building was an act of retaliation.
On Sept. 24, 2015, the village delivered to Dominick a list of 80 alleged code violations. Dominick's attorneys characterized the list as a vague recitation of code sections without listing specific violations, but some of the violations listed are specific.
The letter, which is part of the court record, states that the main beam for the structure does not meet NYS uniform code requirements, the foundation system is not built as designed, the floor joists have been cut, notched, sawed, and are not in compliance with code, that there was seepage through the wood foundation, which was not constructed in accordance with the design, and that Lang viewed unapproved methods of construction through the structure.
"Due to the conditions present during our visit, we deemed the condition of the structure unsafe," the letter states. "Due to the lack of required documentation provided for this structure and the contractor not following the submitted plans, I am also in question of all structural elements of the building not in the submitted drawings that we cannot visually inspect."
The letter asked that prior to anyone undertaking any repairs on the building, that a full structural analysis and evaluation by a licensed engineer be completed.
As for the odor complaints, Dominick hired Lozier Environmental Consulting, Inc. to conduct fungal air sampling. The consultant determined there was mold in the building, but the spore concentration in the occupied areas of the building was within acceptable air quality standards. However, the same inspector found penicillium/aspergillus spores in the basement at levels that are considered unsafe. The consultant recommended several actions to remediate the issue.
In one of his answers to court filings, Lang seemingly cited this report as support for the condemnation, but attorneys for Dominick note that the report was completed after the condemnation. It also did not support condemnation, they asserted, because air quality in the occupied part of the building was found to be within acceptable limits.
C&D vs. Alexander lawsuit
In late 2016, the attorney for C&D filed an amended complaint that focused on trespass (alleging Lang entered the premises without permission), nuisance, inverse condemnation, tortious interference, and violation of civil rights.
The complaint was amended again on Jan. 22, 2018, seeking damages for violations of Dominick's civil rights under the First, Fifth, and 14th Amendments to the U.S. Constitution and violations of the state Constitution.
The suit claimed that Dominick's rights to due process were violated because he was not afforded the right to a hearing on the "taking" of his property by the government.
Dominick's attorneys claimed in multiple filings that C&D was entitled to either a hearing before the building was condemned, or in the case where immediate condemnation is a matter of imminent public safety (which the attorneys said was not the case), a hearing after condemnation.
Wujcik argued that Dominick foreclosed a hearing at the village level when he retained an attorney who ordered Lang to have no further communication with his client, indicating pending legal action. He also argued that C&D chose to forego its right to an Article 78 proceeding and instead chose to file a lawsuit. In either case, any lack of due process, according to Wujcik, was at C&D's doing, not due to conduct by the village nor Lang.
In an eight-page order issued on Dec. 18, 2018, Judge Emilio Colaiacovo dismissed C&D's entire case.
Colaiacovo found that Lang operated within the scope of his legal duties as a code enforcement officer, with a reasonable belief that the building on Buffalo Street was a threat to public safety, and that Lang acted without political motivation and his actions were not arbitrary.
"Defendants have provided ample documentation justifying their decision to placard the property,' Colaiacovo wrote. "While they may have disagreed with the decision or the reasons offered by Lang, the plaintiff has not demonstrated any egregious municipal misconduct. The record is bereft of any 'political concerns' that prompted the determination of the village or its building inspector. While arguably, the plaintiff may be able to show that the defendants misinterpreted the village or state building code, that in and of itself does not constitute egregious official conduct motivated by the color of politics."
Overturned on appeal
Attorneys for C&D appealed the decision, and on Aug. 25, 2020, the Appellate Division of the Fourth Department, Supreme Court of the State of New York, overturned Colaiacovo's decision.
"Initially, we agree with the plaintiff that the court erred in converting the defendants' motion to dismiss to one for summary judgment," the appellate justices wrote. "The court did not provide 'adequate notice to the parties that it was doing so, nor did defendants and plaintiff otherwise receive adequate notice by 'submitting facts and arguments clearly indicating that they were deliberately charting a summary judgment course."
The ruling was not entirely favorable to C&D, however, with the court finding that the court properly denied the plaintiff's motion because the plaintiff failed to establish that it is entitled as a matter of law to the relief it sought as part of the suit -- removal of the placard on the building declaring it condemned.
The case was returned to Genesee County Supreme Court for further proceedings, which eventually led to the summary judgment by Devlin in favor of C&D.
According to a notice posted in a window at 3399 Buffalo St., Alexander, Dominick has been granted a permit to convert the former medical office building into four apartment units.
