batavia

Families who may have been defrauded by Michael S. Tomaszewski when they purchased prepaid funeral arrangements may want to consult with an attorney who is an expert in bankruptcy if they wish to recover any lost funds, according to a law school professor from the University at Buffalo.

S. Todd Brown is the vice dean for Academic Affairs for the UB School of Law and teaches bankruptcy law at the school.

"They would need to talk with someone to make sure their interests can be protected in the bankruptcy," Brown said. "I suspect there are lawyers who have been going around talking to different people, some people have probably already reached out to an attorney. This is an incredibly complex area of law."

Tomaszewski, both personally, and his company Acme Holdings of N.Y. filed for bankruptcy in Federal Court Feb. 5. Combined, Tomaszewski lists $1,094,346 in assets against $3,242,390 in liabilities. 

That doesn't include any restitution he may be ordered to pay if convicted of the nearly 200 criminal charges he faces locally.

The 48-year-old funeral director is charged with 91 counts of failure to deposit monies paid in advance in connection with agreements for funeral merchandise or services. He also charged with 61 counts of third-degree grand larceny, 29 counts of fourth-degree grand larceny, 4th, and three counts of petit larceny.

According to the Sheriff's Office arrest report from July 23, Tomaszewski received deposits form customers ranging from $350 to $15,500. His customers allegedly suffered a combined loss of more than $525,000.

That is a sum of money that people might expect a criminal court judge be repaid to victims once the defendant is convicted but it doesn't necessarily work that way, Brown said, when the criminal defendant has also filed for bankruptcy.

In general, bankruptcy allows an individual to discharge debts and get a fresh start. For businesses, Chapter 11 is a chance to reorganize debts. The judge may help the creditors and debtors work out a repayment plan that lowers the debt burden or if assets are liquidated, the bankruptcy judge will issue an order on how cash obtained during the liquidation is divided among creditors.

Creditors who provided secured loans -- meaning collateral for the money borrowed -- are top priority for repayment. If there is any money left over after secured loans have been paid off, the administrative creditors -- people handing the bankruptcy proceedings, such as attorneys -- are paid. Last in line are unsecured creditors. That is people or entities that are owed money but did not secure the debt with collateral.

The exception to this pecking order, Brown said, is when fraud can be proven.

A common example is if a person or business borrowed money under false pretenses, such as claiming assets that didn't exist or using the money for purposes other than promised.

For a funeral director, Brown used the example of borrowing money on the promise to build a new cemetery but then spending the cash on a new Ferrari or a monthlong trip to Las Vegas.

A funeral home director who accepts prepaid deposits for funeral arrangements could be considered a fiduciary (a person legally responsible for ensuring the money is handled only in the way specified by the contract and in the best interest of the person who owns the money). In order to determine whether Tomaszewski had a fiduciary responsibility to his clients, a lawyer would need to review any specific agreement along with applicable state and federal law.

A fiduciary who converts money to some other users cannot discharge the resulting debt in bankruptcy.

Using pre-need funds for other expenses in violation of the pre-need contract may also be considered fraud and fraud can't be discharged.

In either case, a bankruptcy court judge would need to make the determination on the debtor's obligation based on the case presented by an attorney representing such victims.

"This is really important," Brown said. "If they think they've been defrauded by this individual, they need someone who knows how the process works guiding them through it."

He added, "I tell my students when they enter my Intro to Bankruptcy class, I tell them, most of what we cover is general bankruptcy law. Unless you're working under the guidance of a talented and experienced bankruptcy attorney for at least two or three years, you're to commit malpractice if you go out and practice on your own right away because this is a very technical and complicated area of law. The importance of that story is to stress how easy it is for trained attorneys to mess up if they aren't practicing bankruptcy law regularly."

Brown also noted that a person who filed for bankruptcy can't make any payments on debt without the judge's authorization, even to creditors not listed in the bankruptcy. That rule applies for all debts paid for 90 days prior to filing for bankruptcy and until the bankruptcy case is resolved. The bankruptcy trustee has the option to recover any unauthorized payments from the creditors who received them.

Asked if a County Court judge to order restitution paid first, Brown gave an emphatic, "no."

"In terms of who gets paid when that's entirely the role of the bankruptcy court," Brown said.

For anybody who allegedly lost money to Tomaszewski through means other than fraud -- consider the petit theft charges he's facing -- any potential restitution there will be considered unsecured debt, meaning those possible victims will be among the last to get repaid, Brown said.

"People who have been defrauded need to have someone who is expert in bankruptcy law who is keeping a close on out for their interest in this case," Brown said but also acknowledge that for many people in a case such as this, they haven't lost enough money to interest an attorney taking on their case.

Previously:

• Local funeral director charged with stealing money from customers
• Sheriff's Office looking into report that Tomaszewski improperly handled stillborn baby's remains
• Darien Center couple would like the truth from Tomaszewski about what happened to their daughter's remains

Press release:

The City of Batavia Water Department is on location of a water main break. The break is on the National Grid right-of-way south of the Industrial Park. This is in the same area as the leak last week and the area will experience similar conditions.

The area has very low pressure currently, that should become better once the main is isolated. While no customers should be without water some area homes and businesses may experience lower pressure or discolored water.

We are making all attempts to have water restored to normal as soon as possible.

St. Paul Lutheran School in Batavia held a COVID-distanced graduation for its three fifth-grade students on Saturday.

A caller to dispatch reports four or five children are jumping off the new pedestrian bridge on Walnut Street, into the Tonawanda Creek. City police are responding.

His attorney, Thomas Burns, asked Judge Charles Zambito to make Torres-Acevedo's sentence in state prison concurrent with his Federal term but Zambito decided the defendant shouldn't get that benefit while also denying the prosecution's request to lock Torres-Acevedo away for up to six years in state prison.

Torres-Acevedo entered a guilty plea in County Court in December to one count of second-degree rape. Other charges against him were dropped as part of a plea agreement.

He admitted to being a person over the age of 18 and having sexual intercourse with a person under age 15 in the Town of Batavia sometime between Nov. 15th and the 26th in 2018.

Earlier that month, Torres-Acevedo entered a guilty before Chief U.S. District Judge Frank P. Geraci Jr. to enticing a minor, a 14-year-old Bergen girl, to travel across state lines to engage in criminal sexual activity. 

Torres-Acevedo was arrested in November 2018 following an Amber Alert for his victim. They were eventually located in a Walmart in Pennsylvania when authorities were able to locate the girl's phone at that location.

An officer has been dispatched to the Dollar Tree on East Main Street, Batavia, to investigate a report of a dog locked in a black Ford Escape.

"The window is only cracked a little bit," the officer is informed.

A retired emergency dispatcher entered a guilty plea today one count of possession of sexual performance by a child less than than 16 years old, a Class E felony.

Under terms of the plea deal, James E. Tripp, 58, of Batavia, will be sentenced at a later date to 90 days in jail and 10 years of probation. He was also required to forfeit devices seized by law enforcement during the investigation.

Tripp will also become a registered sex offender.

State Police arrested Tripp in January following a more-than-two-year investigation that included interviews and a search of his residence. Today's plea satisfies three counts of possession of sexual performance by a child.

During his career as a dispatcher -- he worked full-time for 22 years and part-time after 2016 -- Tripp was honored multiple times for his service, including named the state's top dispatcher in 2015. 

Photo of David Buckel from the nonprofit Lambda Legal.

David Buckel was an environmentalist. He was an LGBTQ advocate. He was an attorney. He started his life in Batavia. He ended it more than two years ago in New York City in an effort to draw attention to the plight of the Earth in a time when it seems so many people are focused on other things.

His death didn’t garner much attention locally, but we remember today him on World Nature Conservation Day.

Most Likely to Succeed

David was a Batavia kid, born here on June 13, 1957. His dad was an agricultural consultant and his mom was a florist.

Her maiden name was Stroh and her family ran a well known floral business in town. After his mother died, he changed his middle name to Stroh in her memory. He had four brothers, two of whom served in Vietnam.

He was a bright student. At Batavia High School, where he graduated from in 1975, he was a member of the National Honor Society and voted the boy Most Likely to Succeed by his classmates. He was active in sports as a member of the varsity cross-country, track, and tennis teams.

After earning a Juris Doctorate degree in 1987 from Cornell University Law School, David began his career as an attorney.

While living in Rochester David was introduced by friends to a man named Terry Kaelber. They hit it off, became a couple and moved to New York City.

As might be surmised from his earlier hospice work, David started his career at Legal Aid assisting those in need of help with the law who couldn't afford it otherwise.

In 1995 David began working for Lambda Legal, which helped LGBT (Q, for queer/questioning, was added to the initialism starting in 1996.) youth and he specifically became a director of the organization's marriage project.

Pair of Legal Victories, Pair of Weddings

During his tenure at Lambda Legal, Buckel was one of the counsel responsible for two big victories.

In 1996 a young gay man named Jamie Nabozny was awarded almost a million dollars after suing a Wisconsin school district for failure to protect him from bullying. The court ruling in Nabozny v. Podlesny also established a legal precedent to protect LGBTQ students from being bullied in all school systems.

In 2001 David was one of the attorneys for JoAnn Brandon, who won a lawsuit in Nebraska against a local sheriff for failing to protect her transgender child who was raped and murdered in 1993. JoAnn's daughter, Teena Brandon, had reversed her name to Brandon Teena while transitioning to a male gender identity. Hillary Swank won the Academy Award for Best Actress in 1999 for portraying Teena Brandon, JoAnn's murdered child, in the movie “Boys Don't Cry,” based on the crime.

Four years after the landmark decision, there was a milestone in David's personal life when he married Kaelber in a double wedding ceremony in Canada. The other couple exchanging vows that day were lesbians with whom the men were raising a daughter. She's now a college student, scheduled to graduate in 2021.

Hooked on Urban Farming

In 2008, Buckel retired from Lambda Legal to devote his time and energy to helping preserve the environment. He became an expert in composting, the reuse of organic garbage. 

He spent several years interning at Red Hook's Columbia Street Farm in Brooklyn, where he learned the intricacies of composting peoples' kitchen waste into fertilizer to grow more food. Red Hook had been built on several old baseball diamonds to become the biggest urban farm in the United States.

Eventually, David applied his talent for organizing and planning to become the director of the Brooklyn operation. With the assistance of a large core of volunteers Red Hook was processing 225 tons of compost every year.

Buckel cultivated his workforce of volunteers as well as he did the organic material. He was respected, even beloved by the people he worked with. Several workers said that he changed their life. He ended each work day by thanking the volunteers for helping their Earth.

Buddhism, Trump and the Beginning of the End

As he developed his passion for tending to the environment he also pursued a corresponding interest in Buddhism. With its tenets of inner peace and caring for others it only seemed natural that David would be interested in this way of life. However, the Buddhist methods of protest probably contributed to his untimely end.

After the election of Donald Trump as President in 2016 and the subsequent rollback of Obama era environmental regulations, Buckel's family and friends described him in news accounts as becoming increasingly upset with the trajectory of government actions or inactions.

As 2018 progressed toward April, David began sending emails to his assistant at Red Hook detailing all the things which needed to be done in case of his absence. He also labeled everything at the site, equipment, tools and supplies. His assistant asked him if he was thinking of retiring but he assured him he was not.

Then, before dawn on the morning of April 14^th, David Buckel left the home he shared with his family in Brooklyn. He had a shopping cart and headed to a nearby park. He had told no one that he was leaving.

He stopped at a patch of grass in the park off the walkway and apparently built a small wall of earth around himself. He sent an email to the media detailing what he was about to do, poured a flammable substance on himself, and lit it on fire. Within a minute or two David Buckel was dead.

The obvious reaction was shock and sadness. His family, friends, coworkers, former colleagues, and former classmates were bewildered.

They couldn't believe that a quiet, gentle, private man who cared so deeply for others would choose such a public way to end his life in protest. He hadn't even said goodbye to his loved ones.

His family's comment was that they intended to honor his life by carrying on his environmental goals. Coworkers at Red Hook vowed to continue his work.

Lambda Legal issued a statement when they learned of Buckel's death.

Former Batavia High classmates commented on a Class of '75 Facebook page that several had tried to get in touch with David over the years with no success.

They were mystified over his suicide, but remembered him fondly. Former law colleagues were stunned along with everyone else.

Buckel's final email stated that, “My early death by fossil fuel reflects what we are doing to ourselves.”

So, two plus years have now passed since David Buckel's death at age 60.

No one will ever completely understand or be able to give an absolute explanation as to why he chose to make a statement by ending his life in such a horrific way.

But, hopefully people, including Batavians from the community where he grew up, will remember him for the contributions he made to the world and as the good, kind, and helpful person he was.

Read more about David Buckel's life:

A lawyer sets himself on fire to protest climate change. Did anyone care?, The Guardian, April 15, 2019

Remembering David Buckel, the pioneering lawyer who championed LGBT Rights, The New Yorker magazine, April 16, 2018

What Drove a Man to Set Himself on Fire in Brooklyn?, The New York Times, May 28, 2018

Self-immolation can be a form of protest or a cry for help. Are we listening?, The Washington Post, May 30, 2019

Bergen staple, Ralph and Rosie’s Deli, is opening a new Batavia location. Ralph and Rosie’s has operated in Bergen on North Lake Avenue for 42 years with Mike and Kelly Marsocci continuing the family's legacy of operating the business since 2012.

The couple began plans for the Batavia location at the end of 2019 with hopes of opening the location by early spring, however, due to the COVID-19 pandemic their plans were put on hold. Now, they are hoping to open within the next few weeks. 

“Expanding during this time has its stressors, but it’s a blessing to be expanding and not have to worry about closing our doors,” Kelly Marsocci said. 

Like many other restaurants and small businesses, Ralph and Rosie’s has been adjusting to the pandemic by offering curbside pickup and assisting the community by ordering products that have been difficult to find and selling them to members of the community at cost. 

They have had a tremendous amount of support during this time and excitement for their new location.

“It’s always been a dream to open a second location and we appreciate all the support and love from the community,” Kelly Marsocci said.

The Batavia location will offer the same favorites as their Bergen location, "Home of the Original Sweet Sauce," including their homemade meatballs, mozzarella wedges, dough, and their signature sweet sauce, which are made fresh daily. They offer subs, too.

Ralph and Rosie’s new Batavia location address is 3845 W. Main Street Road and will be open daily from 10 a.m. – 9 p.m. Phone is (585) 494-2049.

Photo by Sarah Whitehead.

To this day, Zachariah and Danielle Young, of Darien Center, really don't know what happened to the remains of their stillborn daughter, Evangeline Elsie.

A photo of the document       Michael Tomaszewski reportedly produced showing
Zach Young authorized the 
cremation of his daughter.
Legally, we are told, a verbal
authorization is not permitted.

They have a box of ashes but the don't feel assured that the box contains the ashes of the little girl they still call Eva.

"The paperwork had the date that literally was a scribble on it," Zach said. "We have absolutely no answers as to when she was actually cremated."

The Youngs said they didn't want Eva cremated, at least not at the time the baby may have been cremated. And, as they remember, when Michael Tomaszewski Funeral and Cremation Chapel received the remains of the baby from Rochester Regional Hospital, he said he wouldn't do it.

As Zach remembers it, Tomaszewski, or "Tom," as they knew him, said "something doesn't look right" and so he agreed to hold onto the remains while the Youngs researched the circumstances of their daughter's death. 

The baby was born at UMMC. She had seemed healthy

just days before when doctors detected a strong heartbeat.

On Feb. 22, when Zach and Danielle arrived at the hospital,

the couple was told Eva's heart had stopped beating.

After hours of labor, Danielle gave birth to a lifeless body.

"It was devastating," Zach said.

"A mother knows their baby already before they're born," Danielle said. "A mother already has that bond. It's like having somebody rip that away and be careless with her remains is just insane. I don't understand it."

Genesee County Coronor Karen Lang confirmed that Eva was born Feb. 22 at UMMC and her body was sent to Rochester Regional for an autopsy. Eva's little body was then sent by courier to Tomaszewski. Tomaszewski has acknowledged receiving the body.

But what happened next is muddled by the funeral director's contradictory stories to the Youngs and to Lang.

On Thursday, the Sheriff's Office announced the arrest of Tomaszewski on about 200 charges. Most of the charges are related to allegations that he misappropriated fund families had prepaid for funeral services. He is also accused of failing to fulfill contracts to purchase headstones and gravesites.

What he hasn't been charged with yet -- and it's unclear if there will be charges -- is how he handled the remains of some deceased people. Chief Deputy Joseph Graff, Sheriff's Office, has confirmed, the department is looking into multiple reports of Tomaszewski mishandling the remains of people who died. The two cases Graff has confirmed involved a veteran who should have been interred at the Bath National Cemetary -- for free -- and the remains of Evangeline Elsie Young.

Lang said she became involved in the Young case after talking with the parents last November. At that point, she learned the Youngs still did not have the remains of Eva nor Eva's autopsy report. 

Both Tomaszewski and Rochester Regional Health were offered an opportunity to comment on this story. Neither responded with a comment.

Tomaszewski has provided both the Youngs and Lang with multiple stories about what happened with Eva's remains. He told the Youngs in June that he hadn't delivered the remains to the crematorium and then a short time later said she had been cremated.  

In November, he told Coroner Jeff McIntyre, who was assisting Lang with the case while she was on vacation, that he cremated Eva when he first received the remains; however, Tomaszewski couldn't produce documentation. He later told Lang he cremated the baby in June.

Most people don't understand, Lang said, that most funeral homes don't have the facilities to store the remains of deceased people for long periods of time.

When Lang asked Tomaszewski, who also operates a catering facility, what he did with Eva's body from February until June, Lang said Tomaszewski told her that he kept the body in a cooler in his prep room.

Tomaszewski eventually produced documentation on the cremation of Eva but neither of the Youngs signed it -- which Lang said is required by law.  Instead, the document says the Youngs gave permission over the phone for the cremation. 

Based on their conversation with county officials -- which includes an interview the Sheriff's Office -- the Youngs suspect the box of ashes they received is too light to contain the remains of a once nine-pound baby. So they feel in limbo. Their church -- High Point in Pembroke -- held a service  for Eva but they didn't have her ashes then and they don't know if what they have now are really her ashes.

They would just like answers.

"I think to make it up, he would have to really admit to his wrongs and not just for me, but for a lot of people," Danielle said. "Losing somebody as it is, is something traumatic to have to deal with. And for us to trust you with our dead loved one..."

"It would be nice to at least know what happened because we got three different stories from him," Zach interjected.

"We don't really have answers," Danielle said. "To be honest -- to be honest with anybody -- would be good. The trauma of losing our daughter was bad enough and then to have to worry about her remains -- that wasn't professional."

Previously:

• Local funeral director charged with stealing money from customers
• Sheriff's Office looking into report that Tomaszewski improperly handled stillborn baby's remains

Press release:

The County Manager’s Office is pleased to announce the appointment of Tammi Ferringer as the new Assistant County Manager effective Aug. 15.

Tammi, a lifelong resident of Genesee County, brings 15 years of experience in county government to her new role as a key operative in the Chief Administrative Office of Genesee County government.

Ferringer began her County career in 2005 as Senior Financial Clerk-Typist at the Genesee County Health Department and quickly worked her way through the ranks to Administrative Officer/Budget Officer. In 2014, she transitioned to the Department of Social Services serving as director of Fiscal Operations and Child Support and, in 2019, was appointed as the County’s compliance officer.

Ferringer has continually exceeded expectations in her different roles in the County, leading to a series of promotions and advancements. Unique skill sets in both finance and compliance make her a great fit for the needs of the Assistant County Manager position.

She's a graduate of Batavia High School. She holds an associate degree in Business Administration from Genesee Community College and a Bachelor of Science degree in Business Finance from SUNY Brockport.

Ferringer resides in the Town of Batavia and is the proud parent of her two children, Jacelyn, 20, and Caleb, 13.

Press release:

At 8:05 p.m. on July 26, the City of Batavia Fire Department was dispatched to a reported residential basement fire located at 438 Ellicott St. First arriving fire units were on scene at 8:08 p.m.

Upon arrival, firefighters found a working fire with heavy smoke and flames visible. Responding crews made an aggressive interior attack of the basement and were able to confine and contain the fire and the situation was called under control by command at 8:42 p.m.

While the fire was contained to the basement of the structure, there was smoke and heat damage to the first and second floor due to the intensity and balloon frame construction that allowed for additional diffusion.

All occupants were able to self-extricate along with a cat from the residence. One adult and two teenagers are receiving lodging assistance from the Red Cross.

Additionally, a City firefighter was injured while fighting the fire. He was sent to United Memorial Medical Center (UMMC) for evaluation, and has been released and is seeking follow-up medical treatment.

At this time the City of Batavia’s Fire Investigation team is investigating the fire to determine the origin and cause. Pending further investigation, the fire has been label undetermined. A final determination will be made upon completion of the investigation.

City fire was assisted at the scene by the City of Batavia Police, Mercy EMS, and the Genesee County Sheriff and Emergency Management Departments with additional support provided by the Town of Batavia Fire Department and Genesee County Emergency Dispatch.

Photos by Frank Capuano.

Angela Schlaggel spotted this white pigeon in the parking lot of The Salvation Army in Batavia and noticed it was wearing a bracelet. 

The pigeon had been at the location for the last two hours at the time Schlaggel sent us the picture this morning.

"It has a bracelet and isn't bothered by my presence at all so I think it may be someone's escaped pet," she said. 

A trio of goats in a tiny pen in the hot sun in a field off Route 63 has a caller to the Genesee County Animal Shelter concerned, and the animal control officer asked to speak to the caller, according to a dispatcher.

Earlier today, The Batavian received an email from a passerby who does not live locally. She wrote:

"I was traveling through yesterday on Route 63 between Batavia and Oakfield and noticed three goats in a VERY small fenced enclosure with no shade available. There was a small plastic 'house' but I'm not sure they would all fit inside and I'm sure it would be horribly hot if they could have. The enclosure was in the middle of a field not far from the road.

"I went by before noon and back again around 5:30. They were all still there. ... I felt so bad for them. What they need is definitely a larger fenced area and some thing to provide shade -- even a tarp over part of the fence would be OK."

A caller reports three kids are hanging on the new Walnut Street Bridge, part of the new Ellicott Trail, and jumping into the Tonawanda Creek. City police are responding.

A woman who lives in the 9200 block of Shepard Road in Batavia is "extremely upset" because a bat flew into her kitchen and she does not know what to do. She tried enlisting neighbors' help but it wasn't too helpful. A sheriff's deputy just arrived "in the kitchen." He'll know what to do.

A caller to dispatch reports a small white car with a small yellow dog barking inside is parked near the pharmacy entrance at Walmart. An animal control officer is responding. It's about 82 degrees outside.

UPDATE 1:26 p.m.: "Can I get someone to get me into this car please?" an officer asks a dispatcher. A deputy is responding.

UPDATE 1:41 p.m.: The deputy gained access to the vehicle and the animal control officer is taking the pooch to the Genesee County Animal Shelter. She asked what the initial time of call was -- 1:08 p.m. -- and noted that no one had come out to vehicle while they were there.

UPDATE 1:45 p.m.: The animal control officer asks what the Genesee County Emergency Dispatch Center is showing for the local temperature and the reply is 84 degrees.

UPDATE 2:55 p.m.: A deputy is out with the registered owner of the vehicle at the Genesee County Animal Shelter.