batavia

A series of motions filed by the estate of Elizabeth Pontillo seeking money and property from Sam and Paul Pontillo was dismissed by County Court Judge Robert C. Noonan on June 30.

"Nonetheless, the instant motion will be denied in its entirety for want of a clear and convincing demonstration of either a likelihood of ultimate success on the merits, the prospect of irreparable injury or a balancing of the equities in a plaintiff's favor," Noonan wrote in his decision. "Accordingly, the Plaintiff's Motion is hereby denied, and the temporary restraining order previously granted is hereby vacated."

It's unclear how this ruling impacts the lawsuit filed against the Sam and Paul by the estate.

Brian Degnan, attorney for the estate, could not be reached this afternoon, and Sam Pontillo's attorney, Reid Whiting, refused to come to the phone.

Degnan filed motions in June requesting Sam Pontillo not be allowed to remove equipment or enter the property of the Pontillo's in Le Roy, that he return all business equipment taken, and that he pay back rents, taxes and profits associated with the Le Roy location.

The estate, being administered by John Forsyth, also sought back rent from Paul Pontillo for the time he was living at 64 Vernon Ave., Batavia, the former residence of his parents, and an accounting of various items believed to be in the house at one time.

In his answer to the motion, Whiting accused Forsyth of a conflict of interest and a lack of good faith in dealing with Sam Pontillo.

In an answering affidavit, Sam Pontillo says that as accountant for the various Pontillo's businesses in Genesee County, he had access to financial information and other company secrets, "many of which he is now using in a selective manner to the detriment of defendants. As such, he has an obvious conflict of interest as a litigant."

Sam also notes, to his "amazement," John Pontillo was not sued by the estate, despite being involved in the business operations at one time.

He accuses John and Paul of mismanaging the "'goose that laid the golden egg' to the point of insolvency and desperate need for a subprime mortgage."

"He (John) was personally and highly involved in the demise of the Batavia store and its foreclosure," Sam writes.  

He accused John of removing a seven-ton HVAC unit from the Batavia location.

"John was an officer and manager of the Batavia store for a substantial time during which it failed to pay sales tax, payroll taxes and real property taxes and numerous suppliers," according to Sam.

One of the chief financial decisions that led to loss of the Batavia store, based The Batavian's previous reporting of this story, was taking out a mortgage on the property in November 2008. Sam Pontillo states that he "adamantly opposed" his mother's execution of the mortgage, "particularly at the exorbitant rate of 16 percent."

"Paul and John, not just Paul, have a lot to explain about the demise of that business," Sam writes.

As for the property Forsyth claimed belonged to the estate, Sam Pontillo provide copies of checks showing that he spent about $20,000 on the equipment, out of his own business entity, Le Roy Dough Boys, Inc.

Sam Pontillo also accuses John Forsyth of not answering his offers to buy the Le Roy Store or a proposed lease on the property.

As part of the lawsuit, the estate has sought some $50,000 in back rent from San Pontillo for the Le Roy location. The back rent is calculated at $2,500 per month. An affidavit from Daniel K. O'Shea, who says he's a lifelong resident of Le Roy, and an owner of downtown village property, says there is no property in the village worth more than $1,000 per month and the total estimated value of the Le Roy location is $100,000.

Sam states that even though he was never associated with Sam's Tomato Pies, either as employee, shareholder or director, the IRS has placed a lien on the home owned solely by his wife in Albany in an attempt to collect back taxes from the corporation.

"Plaintiffs and my brothers are lashing out at me without any factual or legal justification," Sam writes. "I suspect they are solely motivated by the base emotion of envy as a result of the position I secured with the new owners of the Batavia store

"As manager of the Batavia pizzeria, opened on April 6, 2010, I am not in competition with the Pontillo Family Partnership or the estate. I am merely earning a just living to support my wife and three sons, despite the shabby obstacles plaintiffs and my brothers have tried to place in my path."

Joseph S. Martaus, 26, of 14 Overlook Drive, Batavia, is charged with DWI, driving under the influence of drugs, controlled substance not in original container, possession of a hypodermic instrument, disobeying pavement markings. At 6:48 p.m., Wednesday,  Batavia Police responded to a report of an individual who appeared either drunk or ill getting behind the wheel of a car. The caller provided the license plate number of the car and a vehicle description. The vehicle was located and stopped on Ellicott Street. Martaus was allegedly unable to pass a field sobriety test. An officer who is an expert in recognizing the influence of drugs responded to the scene and determined Martaus was allegedly also driving under the influence of drugs. He was jailed on $500 bail. Officers Mark Lawrence, Eric Hill and Jason Davis were involved in the arrest.

Daniel D. Reese, 55, of 97 Abbott St., Rochester, is charged with DWI, driving with a BAC of .18 or greater, and following too close. Reese was reportedly involved in a rear-end accident in the area of 210 E. Main St., Batavia, at 4:51 p.m., Wednesday. Officer Chris Camp conducted a field sobriety test and found Reese was allegedly driving drunk. Reese was booked and released on an appearance ticket.

Christopher Lawrence Bauld, 21, of Kinmont Drive, Rochester, is charged with DWI, driving with a BAC of .08 or greater, no front license plate. Bauld was stopped at 8:22 p.m., Wednesday, on Route 77 in Alabama by Deputy James Diehl for allegedly having no front license plate.

Kelsey Anne Sanders, 23, of E. Main Street, Batavia, is charged with petit larceny. Sanders is accused of shoplifting from Kmart.

Louis Alfredo Mercado, 22, of Bank Street, Batavia, is charged with petit larceny. Mercado is accused of shoplifting from Kmart.

Jacob John McCowen, 26, of Oak Street, Warsaw, is charged with criminal contempt, 2nd. McCowen is accused of visiting the residence of, and calling a person in Pavilion whom he'd been ordered not to contact.

A wire is reported down and arcing in the area of 229 South Swan St., Batavia.

City Fire is on scene.

National Grid has been notified.

UPDATE 8:54 a.m.: A fire captain requests that National Grid expedite its response because "we have a tree on fire here." National Grid ETA is five minutes.

UPDATE 8:59 a.m.: National Grid is heading down to Ellicott Street to cut the power.

UPDATE 9:15 a.m.: National Grid reports more than 600 customers are without power in the area around South Swan.

UPDATE 9:28 a.m.: Fire is out. Engine 12 returning to quarters. National Grid still on scene.

UPDATE 9:38 a.m.: National Grid now estimates 320 customers are without power.

UPDATE 10:21 a.m.: 113 customers now without power.

UPDATE  11:34 a.m.: Guess I should have gone out to this one for some pictures. It sounds like it was far more interesting than came across on the scanner. The tree was burned pretty good. The pavement literally melted clear through under the wire. Water evaporated as soon as it hit the spot, I'm told. The cause of the downed line? Unknown. Possibly a limb fell on it.  It was a very old line.

UPDATE: Photo submitted by Laura Mullen.

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WRGZ out of Buffalo broadcast a story about the gulls at Latina's.

UPDATE: The Democrat and Chronicle has also posted a story.

After this afternoon's minor accident on East Main Street, I was tipped to stick around  -- there might be a field sobriety test about to take place. So I did.

The test was administered by Officer Chris Camp. The name of the subject is not yet available.

It begins, above, with a pat search of the subject. ...

Instruction, walk a straight line touching ...

... heel-to-toe ...

More pictures after the jump:

walk heel-to-toe ...

... and turn around (just after this shot, the subject literally threw up his hands and stopped the test) ...

Stand with your arms to your side holding up one leg (Officer Camp is now joined by Officer Eric Hill and rookie Mark Lawrence) ...

The eye test, or officially known as the horizontal gaze nystagmus ...

... cuffed ...

A fender-bender with minor injuries is reported in front of City Church on Main Street in Downtown Batavia.

The roadway was blocked temporarily. City fire responded and an ambulance, non-emergency response.

UPDATE 5:09 p.m. (by Howard): It was a minor accident, but there was an arrest following it. I'll post pictures in a separate post shortly.

You may seen firefighters around town in pink T-shirts over the next week or so. It's not the new team color. After the wife of a firefighter was diagnosed with breast cancer, the entire department agreed to start wearing pink T-shirts as a sign of support. It's also turned into a fundraiser.

Members of the department will be at Thursday's Batavia Muckdog's game selling pink T-shirts with the Batavia City Fire Department logo on the front for $10 each. The proceeds will benefit Genesee Caner Assistance.

Pictured from left are, Rich Stefani, Mike Morris, Jeff Stevens, Bill Hilchey and Frank D'Angelo.

More than two dozen second- through sixth-graders are participating in a five-week long lacrosse clinic at John Kennedy School under the guidance of Joe Husser, a program assistant for lacrosse at Batavia High School.

Husser explained that while many schools in the Rochester area start developing players as young as 5, Batavia players have traditionally not started learning the game until middle school.

Lacrosse was invented by Native Americans and has huge regional appeal in some parts of the country, such as Upstate New York, but has yet to gain a national following.  Interestingly, the Iroquois are being barred by the United States from playing in the world championships in London because for the first time the State Department isn't recognizing the Iroquois passport.

More pictures after the jump:

Charles Anthony Piazza, 52, of Cherry Laurel Circle, Webster, is charged with harassment, 2nd. Piazza is accused of punching another driver three times in the face during a road-rage incident in the area of 6168 Route 19, Bergen, at 11:34 a.m., Monday.

Matthew Scott Williams, 22, of Hundredmark Road, Elba, was arrested on a bench warrant out of Town of Elba Court. He was jailed on $3,000 bail.

Alanna Marie Whelan, 20, of 25 Bacon St., Apt. A, Le Roy, is charged with unlawful dealing with a child, 1st. Sgt. Micaheal Hare responded to a noise complaint at Whelan's apartment at 1:15 a.m. and allegedly found that she served alcohol to two individuals under 21.

Kristopher Jon Ayers, 25, of Spring Street, Caledonia, is charged with criminal possession of a weapon, 3rd, and criminal possession of a controlled substance, 4th. Ayers was stopped in the Village of Le Roy by Deputy Joseph Graff in relation to an  arrest warrant on a misdemeanor charge of harassment, 2nd. Ayers was allegedly found in possession of five sets of brass knuckles and a quantity of hashish.

Luke W. Ritzenthaler, 27, and Amy L. Ritzenthaler, 26, both of Batavia, were both charged with unlawful possession of marijuana. They were stopped by State Police on Route 33 in Batavia at 5:34 p.m., July 4. No further details were released.

Floyd B. Eldridge, 53, of Pavilion, is charged with unlawful possession of marijuana. Eldridge was cited by State Police at 7845 Broadway Road, Pavilion, at 3:52 p.m., June 24.

BATAVIA, NY -- The gulls roosting atop Latina's may be noisy, stinky and prone to poop on anything and everything, but they are not a public health hazard, according to the County Board of Health.

Board President Mary J. McJury notified BID Director Don Burkel of the board's finding in a July 7 letter.

"Although the Board of Health empathizes with the current situation, it was the board's determination, following careful review of the investigation, that this situation does not constitute a public health nuisance."

The Latina's building was condemned last week by the city for allegedly unsanitary conditions.

LKLWL Properties, the building's owner, has been summoned to City Court on July 23 to answer a complaint by the city that the company has failed to deal with unsanitary conditions on the property.

In her letter, McJury notes that the Herring Gulls are attracted to the Latina's roof because it is flat, warm and protected from harassment and predation.

"It is a short flight for them to feeding opportunities in the agricultural land surrounding the city," she wrote. "They are omnivores and eat anything from garbage to berries."

She said the actual issue with the property appears "to be property maintenance and aesthetic in nature."

She notes that the New York Department of Health issued a report finding no negative human health issues associated with Herring Gull populations.

Also, to date, there have been no reports of illnesses related to Batavia's gull infestation.

There's more than a property line that separate Ron Graziaplena and Cheryl Collins. There's 30 years of neighbor disputes, and now that Collins wants to sell her property and move away, she's even more concerned about what Graziaplena does outside his house.

Graziaplena, a former truck driver, builds things in his front yard, has a row of tomato boxes along his driveway, a boat parked on the grass of the north side of his house, and he's keeping 18 mallard ducks in his back yard.

"My home is assessed at $80,000," Collins said. "The last real estate agent I had over said I probably couldn't get $50,000 for it."

The dispute will land Graziaplena in City Court on July 23. He is accused by city inspectors of keeping his yard full of debris, trash and junk, and of keeping the ducks in unsanitary conditions.

On April 26, 2001, Graziaplena was granted a variance to keep 10 water fowl on his property. He is allegedly in violation of the variance. The city says he has 19 ducks. Graziaplena says he has 18.

The variance, reportedly, also doesn't allow mallards.

Graziaplena said he's kept dozens of different varieties of ducks over the years, and that he wasn't aware the variance allowed only certain breeds of ducks, and besides, what's the difference?

"They’re pets," Graziaplena said. "People have dogs and cats. I have ducks. I ‘ve always been fond of ducks and geese -- waterfowl."

He said he got his first duck when he was 2 years old (his parents moved into 172 Oak St. when he was a year old), and he's pretty much kept ducks ever since -- for 59 years, most of the time living in the same house.

He moved back into his parent's house about 25 years ago, he said, and it's been for close to that long, by his version, that Collins has been complaining about "anything and everything" around his home.

"It's been no picnic living next door to that man," Collins said.

The real trouble started, Graziaplena said, when he let go a young woman that was working for him, helping him with his projects and the care of his ducks.

The woman had become friends with Collins, and Graziaplena accuses Collins of retaliation for letting her go.

"There’s a lot of work around here that needs to be done by a guy, and I’m disabled, so I needed to hire a guy," Graziaplena said.

Collins said the girl wasn't fired, she quit. She couldn't stand, according to Collins, the unsanitary conditions the ducks lived in.

Graziaplena disputes that the ducks are kept in an unhealthy environment. Their water pond is cleaned regularly and they get fresh water daily, he said. It's heated in the winter, they have shelter and plenty of food.

As for the limit on ducks, Graziaplena notes that ducks breed. They lay eggs and produce ducklings. When the young ducks have enough feathers to fly, Graziaplena said, he releases them at a swamp owned by a cousin. He only keeps the 10 adult ducks, otherwise.

The young ducks are usually released in the last week of July.

As for Collins, she said she's about done with the situation.

"I’m ready to walk away from it all," Collins said.

A man wanted from San Francisco to Ithaca was taken into custody in Batavia on Friday after he reportedly left a backpack allegedly containing drugs and stolen items in Walmart.

The backpack was turned over by Walmart security to Deputy Tim Wescott, who located Thomas E. Dodson, 24, of Rochester, at the 48 Deli Express on Park Road.

After searching the backpack, Wescott reported finding drugs, drug paraphernalia, a  stolen credit card, a stolen wallet and several stolen prescriptions.

Upon checking Dodson's identity, Wescott reportedly learned that Dodson had outstanding warrants in San Francisco, Rochester and Ithaca.

Dodson was charged with being a fugitive from justice, criminal possession of stolen property, 4th, criminal possession of a controlled substance, 7th, criminally using drug paraphernalia, 2nd, criminal possession of a hypodermic instrument, three counts of criminal possession of stolen property, 5th, and criminal impersonation, 2nd.

He was ordered held without bail.

A three-car accident with injuries has been reported in the area of 9 College View Drive, Batavia.

Town of Batavia Fire and Mercy EMS are being dispatched.