FILED: ORLEANS COUNTY CLERK 05/25/2023 12:59 PM
`NYSCEF DOC. NO. 88
`
`INDEX NO. 20-46602
`
`RECEIVED NYSCEF: 05/25/2023
`
`STATE OF NEW YORK
`SUPREME COURT: COUNTY OF ORLEANS
`_____________________________________
`
`AB 511 DOE,
`
`
`Plaintiff,
`
`
`v.
`
`LYNDONVILLE CENTRAL SCHOOL
`DISTRICT AND LYNDONVILLE
`ELEMENTARY SCHOOL,
`
`Defendants.
`
`
`______________________________________
`
`
`
`
`
`
`
`
`
`AMENDED AFFIRMATION IN
`SUPPORT
`
`Index No.: 20-46602
`
`
`
`The undersigned, Leah Costanzo, Esq., an attorney at law, affirms that the following
`
`statements are true, under the penalties of perjury:
`
`1.
`
`I am an attorney at law, associated with the law offices of Steve Boyd, P.C.,
`
`attorneys for plaintiff in this lawsuit and familiar with the facts herein.
`
`2.
`
`This affirmation is submitted in support of plaintiff’s motion seeking an order (1)
`
`holding Hon. Joseph V. Cardone, the Orleans County District Attorney’s Office, Sheriff
`
`Christopher Bourke, and the Orleans County Sheriff’s Department in contempt of Court and (2)
`
`issuing a judicial subpoena to the Orleans County Probation Department for its entire file regarding
`
`Terry Houseman, along with such other and further relief as this Court deems just and proper.
`
`PROCEDURAL BACKGROUND
`
`3.
`
`This action is a claim brought under the Child Victims Act for sexual abuse of
`
`plaintiff by Terry Houseman, an employee of defendant Lyndonville Central School District, from
`
`approximately 1986 to 1987.
`
`4.
`
`The following relevant pleadings were served in this matter:
`
`1
`
`1 of 7
`
`
`
`
`NYSCEF DOC. NO. 88
`
`INDEX NO. 20-46602
`
`RECEIVED NYSCEF: 05/25/2023
`
`STATE OF NEW YORK
`SUPREME COURT: COUNTY OF ORLEANS
`_____________________________________
`
`AB 511 DOE,
`
`
`Plaintiff,
`
`
`v.
`
`LYNDONVILLE CENTRAL SCHOOL
`DISTRICT AND LYNDONVILLE
`ELEMENTARY SCHOOL,
`
`Defendants.
`
`
`______________________________________
`
`
`
`
`
`
`
`
`
`AMENDED AFFIRMATION IN
`SUPPORT
`
`Index No.: 20-46602
`
`
`
`The undersigned, Leah Costanzo, Esq., an attorney at law, affirms that the following
`
`statements are true, under the penalties of perjury:
`
`1.
`
`I am an attorney at law, associated with the law offices of Steve Boyd, P.C.,
`
`attorneys for plaintiff in this lawsuit and familiar with the facts herein.
`
`2.
`
`This affirmation is submitted in support of plaintiff’s motion seeking an order (1)
`
`holding Hon. Joseph V. Cardone, the Orleans County District Attorney’s Office, Sheriff
`
`Christopher Bourke, and the Orleans County Sheriff’s Department in contempt of Court and (2)
`
`issuing a judicial subpoena to the Orleans County Probation Department for its entire file regarding
`
`Terry Houseman, along with such other and further relief as this Court deems just and proper.
`
`PROCEDURAL BACKGROUND
`
`3.
`
`This action is a claim brought under the Child Victims Act for sexual abuse of
`
`plaintiff by Terry Houseman, an employee of defendant Lyndonville Central School District, from
`
`approximately 1986 to 1987.
`
`4.
`
`The following relevant pleadings were served in this matter:
`
`1
`
`1 of 7
`
`
`
`
`
`FILED: ORLEANS COUNTY CLERK 05/25/2023 12:59 PM
`NYSCEF DOC. NO. 88
`
`INDEX NO. 20-46602
`
`RECEIVED NYSCEF: 05/25/2023
`
`
`
`
`
`
`
`
`•
`
`•
`
`•
`
`Plaintiff’s Summons and Complaint (NYSCEF Doc. 2);
`
`Plaintiff’s Amended Complaint (NYSCEF Doc. 5);
`
`Defendants’ Answer (NYSCEF Doc. 6);
`
`ARGUMENT
`
`MOTION FOR FINDING OF CONTEMPT
`
`5.
`
`CPLR § 2308 provides that failure to comply with a subpoena issued by a judge
`
`shall be punishable as a contempt of court. Judiciary Law § 753[1] further authorizes a court to
`
`punish by fine or imprisonment “an attorney, counsellor, clerk, sheriff, or other person” whose
`
`disobedience to the lawful mandate of the court defeats, impairs, impedes or prejudices a right or
`
`remedy of a party to a civil action.
`
`6.
`
`This Court previously granted plaintiff’s application for judicial subpoenas
`
`requiring the Orleans County District Attorney’s Office and the Orleans County Sheriff’s
`
`Department to submit to the Court copies of their “entire, unredacted file regarding the
`
`investigation of Terry Houseman in approximately 1990 to 1991, but not limited to, unredacted
`
`copies of all reports, statements taken, recordings, and all notes, testimony and accounts of the
`
`investigating officers.” A copy of the subpoenas signed by the Court on October 27, 2022 is
`
`attached as Exhibit A. The return date was November 30, 2022.
`
`7.
`
`The subpoenas were personally served on District Attorney Joseph V. Cardone and
`
`on Sheriff Christopher Bourke on November 14, 2022. Affidavits of Service are attached as
`
`Exhibit B.
`
`8.
`
`On November 16, 2022, Orleans County District Attorney Joseph Cardone
`
`submitted a letter and certification of records to plaintiff stating that he had checked with Orleans
`
`2
`
`2 of 7
`
`
`
`
`
`FILED: ORLEANS COUNTY CLERK 05/25/2023 12:59 PM
`NYSCEF DOC. NO. 88
`
`INDEX NO. 20-46602
`
`RECEIVED NYSCEF: 05/25/2023
`
`County Records Department and the requested records had been destroyed “some years past” and
`
`no longer existed.
`
`9.
`
`No separate response has been submitted by the Orleans County Sheriff’s
`
`Department.
`
`10.
`
`Attached as Exhibit C is a copy of defendant’s response to plaintiff’s request for
`
`production of documents dated July 20, 2021. In response to requests four and nine, defendant
`
`provided plaintiff with copies of redacted copies of records they obtained from Orleans County in
`
`response to a FOIL request. A copy of the provided documents is attached as Exhibit D. They
`
`include a partial transcript of court proceedings, a pre-sentencing report, and various documents
`
`generated or received by the Orleans County Sheriff’s Department. There is also a document
`
`indicating that at least some of this documentation was provided in response by the Orleans County
`
`Sheriff’s Department in response to a FOIL request received June 11, 2021 (Ex. D, BATES No.
`
`000385).
`
`11.
`
`In an effort to determine if Mr. Cardone was responding on behalf of both the
`
`District Attorney’s Office and the Sheriff’s Office as he had when plaintiff moved for issuance of
`
`the subpoenas and to determine the cause of the discrepancy in the responses to the subpoenas and
`
`defendant’s recent FOIL requests, plaintiff has emailed Mr. Cardone on January 19, 2023 and left
`
`multiple messages at his office. A copy of the email is attached as Exhibit E. To date, there has
`
`been no response.
`
`12.
`
`The records requested involved child sexual abuse by Terry Houseman, an
`
`employee at defendant’s school. Plaintiff is alleging child sexual abuse by Houseman, and the
`
`records regarding his investigation and prosecution are clearly relevant to this action. Failure to
`
`comply with this Court’s subpoena and submit the unredacted records to this Court for a
`
`3
`
`3 of 7
`
`
`
`
`
`FILED: ORLEANS COUNTY CLERK 05/25/2023 12:59 PM
`NYSCEF DOC. NO. 88
`
`INDEX NO. 20-46602
`
`RECEIVED NYSCEF: 05/25/2023
`
`determination regarding whether redaction is appropriate before they are reviewed by plaintiff has
`
`impaired and impeded plaintiff’s right to fully investigate the issues surrounding child sexual abuse
`
`by Houseman in pursuit of his claim against defendant. There is no other source for the unredacted
`
`documents.
`
`13.
`
`As a result, plaintiff requests that the Hon. Joseph V. Cardone, the Orleans County
`
`District Attorney’s Office, Sheriff Christopher Bourke, and the Orleans County Sheriff’s
`
`Department be held in contempt of Court for failure to reply to the subpoenas issued by this Court.
`
`MOTION FOR JUDICIAL SUBPOENAS
`
`14.
`
`Plaintiff respectfully requests that the Court issue judicial subpoenas for the
`
`complete files of the Orleans County Probation Department and the Orleans County Clerk’s Office
`
`regarding Terry Houseman. A copy of the proposed judicial subpoenas is attached as Exhibit F.
`
`15.
`
`During the course of discovery, defendants provided plaintiff with some
`
`documentation related to the criminal prosecution pursuant to requests made under the Freedom
`
`of Information Act. These documents were heavily redacted regarding the identity of others
`
`allegedly abused by Houseman and potential witnesses who may have relevant information
`
`regarding defendants and evidence regarding Houseman’s propensity to sexually abuse minors.
`
`16.
`
`As a result, plaintiff is requesting the issuance of judicial subpoenas for the release
`
`of the complete and unredacted file, including unredacted copies of all reports, statements taken,
`
`recordings, and all notes, testimony and accounts of the investigating officers in the possession of
`
`the Orleans County Probation Department along with all records related to the criminal
`
`investigation, prosecution and sentencing of Houseman filed and/or stored with the Erie County
`
`Clerk’s Office.
`
`4
`
`4 of 7
`
`
`
`
`
`FILED: ORLEANS COUNTY CLERK 05/25/2023 12:59 PM
`NYSCEF DOC. NO. 88
`
`INDEX NO. 20-46602
`
`RECEIVED NYSCEF: 05/25/2023
`
`17.
`
`The discovery requested is material and relevant to this litigation, and directly
`
`relates to plaintiff’s claims against defendants (NYSCEF Doc. No. 2).
`
`18.
`
`For the forgoing reasons, plaintiff respectfully requests that the Court sign the
`
`attached judicial subpoenas for the complete files of the Orleans County Probation Department
`
`and the Orleans County Clerk’s Office regarding the investigation and prosecution of Terry
`
`Houseman in approximately 1990 to 1991, as the documents are not able to be obtained through
`
`any other means. See CPLR §2307.
`
`CONCLUSION
`
`19.
`
`Based on the foregoing, plaintiff respectfully requests that the Court grant
`
`plaintiff’s motion in its entirety and issue judicial subpoenas for the complete files of the Orleans
`
`County Probation Department and the Orleans County Clerk’s Office regarding the investigation
`
`and prosecution of Terry Houseman in approximately 1990 to 1991, along with such other and
`
`further relief as this Court deems just and proper.
`
`Dated: May 25, 2023
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`/s/ Leah Costanzo, Esq.
`Leah Costanzo, Esq.
`Steve Boyd, P.C.
`Attorney for Plaintiff
`2969 Main Street, Suite 100
`Buffalo, New York 14214
`(716) 400-0000
`lcostanzo@steveboyd.com
`
`
`
`
`
`TO: Hon. Joseph V. Cardone, District Attorney
`Orleans County District Attorney
`13925 State Route 31, Suite 300
`Albion, NY 14411
`(585) 590-4130
`
`
`5
`
`5 of 7
`
`
`
`
`
`FILED: ORLEANS COUNTY CLERK 05/25/2023 12:59 PM
`NYSCEF DOC. NO. 88
`
`INDEX NO. 20-46602
`
`RECEIVED NYSCEF: 05/25/2023
`
`Sheriff Christopher Bourke
`Orleans County Sheriff’s Department
`13925 State Route 31, Suite 400
`Albion, NY 14411
`(585) 58 9-5527
`
`
`Orleans County Probation
`13925 NY-31
`Albion, New York 14411
`
`Nadine P. Hanlon, County Clerk
`Orleans County Clerk’s Office
`3 South Main Street, Suite 1
`Courthouse Square
`Albion, New York 14411
`(585) 589-5334
`
`Shannon O’Neill, Esq.
`WEBSTER SZANYI, LLP
`Attorneys for Defendants
`1400 Liberty Building
`Buffalo, New York 14202
`(716) 843-2800
`soneill@websterszanyi.com
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`6
`
`6 of 7
`
`
`
`
`
`FILED: ORLEANS COUNTY CLERK 05/25/2023 12:59 PM
`NYSCEF DOC. NO. 88
`
`INDEX NO. 20-46602
`
`RECEIVED NYSCEF: 05/25/2023
`
`STATE OF NEW YORK
`SUPREME COURT: COUNTY OF ORLEANS
`_____________________________________
`
`AB 511 DOE,
`
`
`Plaintiff,
`
`
`v.
`
`LYNDONVILLE CENTRAL SCHOOL
`DISTRICT AND LYNDONVILLE
`ELEMENTARY SCHOOL,
`
`Defendants.
`
`
`______________________________________
`
`
`
`
`
`
`
`
`CERTIFICATION PURSUANT TO
`22 NYCRR 202.8-b(c)
`
`Index No.: 20-46602
`
`
`
`I hereby certify pursuant to 22 NYCRR 202.8-b(c) that the word county of the attached
`
`attorney affirmation is 1,116 words, exclusive of the caption and signature block in compliance
`
`with the word count limit set forth in 22 NYCRR 202.8-b(a).
`
`DATED:
`
`May 25, 2023
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`/s/ Leah Costanzo, Esq.
`Leah Costanzo, Esq.
`
`
`
`
`
`
`
`7
`
`7 of 7
`
`
`
`
Accessing this document will incur an additional charge of $.
After purchase, you can access this document again without charge.
Accept $ Charge
Still Working On It
This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.
Give it another minute or two to complete, and then try the refresh button.
A few More Minutes ... Still Working
It can take up to 5 minutes for us to download a document if the court servers are running slowly.
Thank you for your continued patience.
This document could not be displayed.
We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.
Your account does not support viewing this document.
You need a Paid Account to view this document. Click here to change your account type.
Your account does not support viewing this document.
Set your membership
status to view this document.
With a Docket Alarm membership, you'll
get a whole lot more, including:
- Up-to-date information for this case.
- Email alerts whenever there is an update.
- Full text search for other cases.
- Get email alerts whenever a new case matches your search.
One Moment Please
The filing “” is large (MB) and is being downloaded.
Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.
Your document is on its way!
If you do not receive the document in five minutes, contact support at support@docketalarm.com.
Sealed Document
We are unable to display this document, it may be under a court ordered seal.
If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.
Access Government Site
