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Appeals court affirms previous ruling denying legal fees for Maziarz in FOIL proceedings vs. WROTB

By Mike Pettinella

A recent setback in an appellate court will not prevent former State Sen. George Maziarz from continuing with a lawsuit against Western Regional Off-Track Betting Corp. for what he terms “improper practices.”

Late last week, the state Supreme Court Appellate Division, Fourth Judicial Department, upheld a March 25, 2021 ruling by (then) Genesee County Supreme Court Justice Charles N. Zambito that Maziarz was not entitled to attorney’s fees and litigation costs incurred during a Freedom of Information Law proceeding to gain records from WROTB.

Responding to an email from The Batavian on Thursday, Maziarz said the judgment denying legal fees “stems from the Freedom of Information lawsuit we had to file against Western Regional Off-Track Betting a few years ago.”

“They want to operate in secrecy, but the courts forced WROTB to turn over the information we requested,” he said. ““What matters is that the information we received exposed apparent improper practices by WROTB (and) those facts laid the foundation of our recently-filed lawsuit against WROTB to recoup money spent on those practices for the citizens in the Western Region.”

In its ruling, the appeals court – citing case law -- “affirmed” Zambito’s order on the Article 78 issue, writing, “As relevant here, a court may assess reasonable attorney’s fees and other litigation costs against an agency in a FOIL proceeding where the petitioner 'has substantially prevailed, and . . . the agency failed to respond to a request or appeal within the statutory time.'”

Furthermore, the court stated that “even if the party meets those requirements, the award of attorney’s fees and litigation costs remains discretionary with the court. We agree with petitioner that respondent failed to respond to petitioner’s FOIL appeal within the statutory time and that Executive Order (A. Cuomo) No. 202.8 (9 NYCRR 8.202.8) did not toll respondent’s statutory time within which to respond.”

Nevertheless, the court concluded that the Genesee County Supreme Court “did not abuse its discretion in denying petitioner’s request for attorneys’ fees and litigation costs inasmuch as respondent’s delay was caused by the ongoing COVID-19 pandemic.”

Maziarz’s suit contends that WROTB – a public benefit company -- has, in effect, spent funds that should have gone to its 17 member municipalities by offering high-priced health insurance to its directors and improperly distributing sporting event tickets.

WROTB President Henry Wojtaszek on Thursday reiterated that the corporation’s attorneys have filed a motion to dismiss, adding that he is confident that nothing will come of Maziarz’s action.

“We prevailed at the Appellate Division, which is a telling sign that the outcome will be the same with the lawsuit,” he said.

Previously: Former state senator with his own corruption history files lawsuit against Batavia Downs alleging corruption

Previously: WROTB hires Buffalo law firm to oppose suit filed by Maziarz; Park Road traffic patterns set to change

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