Lewis Family Farm, Inc. vs. APA

In which Justice Richard B. Meyer rules... granting recovery of counsel fees to Lewis Family Farm, Inc.

February 3, 2010 - Justice Richard B. Meyer’s decision

October 29, 2009 - Transcript of oral argument over the farm's motion to recover counsel fees. Note errors in transcription below


    Page 34, line 9: Relay or rely?

    page 34, line 13: The speaker is Simon. Not the court.

In which we settle the record.

October 26, 2009 - Letter from LFF's Counsel to Judge Meyer correcting the list of documents in the Record.

October 26, 2009 - Letter from Hon. Richard B. Meyer to Counselors in which the Court seeks verification of the Record.

In which the farm responds, citing First Amendment rights, fact and law.

October 22, 2009 -- Affidavit of Sandy Lewis in Opposition to State's Cross-Motion to Strike

In which counsel replies to the Attorney General's wish to have the last word - while ignoring the law.

October 22, 2009 -- Memorandum of Law in Opposition to State's Cross-Motion to Strike, in which the LFF addresses the State's improper "sur-reply"

In which the Attorney General denigrates the amicus curiae brief of New York Farm Bureau.

October 21, 2009 -- State's Memorandum of Law in Opposition to the Farm Bureau's Amicus Brief

In which the attorney general files an unauthorized pleading in an effort to get the last word prior to oral argument.

October 9, 2009 - Notice of Cross-Motion to Strike - Sur-Reply

In which Cynthia Feathers Esq., counsel to New York Farm Bureau, expresses the farmer's view.

October 5, 2009 - NY Farm Bureau Amicus Brief

In which we enter our Reply Brief and supporting papers.

September 24, 2009 - Letter from Hon. Judge Richard B. Meyer

September 22, 2009 - Memorandum of Law that states the case

September 23, 2009 - Affirmation of John J. Privitera Esq.

    Exhibit A - Septic related

        Feb. 2, 2009   AG's Notice of Motion for Partial Stay

        Feb. 2, 2009   Affirmation of Loretta Simon, Esq., in Support of Stay

        Feb. 2, 2009   Affidavit of Douglas Miller

        Feb. 2, 2009   Affidavit of Sarah Reynolds, Esq.

        Feb. 2, 2009   Affidavit of Shaun Lalonde

        Feb. 2, 2009   AG's Amended Notice of Motion for Partial Stay

        Feb 17, 2009    Memorandum of Law in Opposition to Agency's Motion for an Injunction, in which the Lewis Family Farm

                                  establishes that the Agency has failed to articulate its entitlement to an injunction and shows that the

                                  Agency's motion is punitive.

        Feb 17, 2009   Affidavit of John J. Privitera, Esq., with Appendix of materials supporting the Memorandum of Law in

                                Opposition to the Agency's Motion for an Injunction.       

        Feb 20, 2009 -- Affirmation of Loretta Simon in Further Support of Agency's Motion for an Injunction.


    Exhibit B - Appeal Related

        Mar 2, 2009 -- Appellant Agency's Brief to the Appellate Division in Support of Its Appeal of Judge Meyer's Decision &


        April 1 -  Respondent Lewis Family Farm's Brief in Opposition to the Agency's Appeal, in which the farm defends Judge

                        Meyer's opinion recognizing that the Lewis Family Farm's right to farm includes a right to house farm workers.

        April 28 - APA's Appellant Reply Brief, in which the APA supplements its argument that "single family dwellings" are not

                         "agricultural use structures"

         May 8 - Lewis Family Farm Reply Brief, examines the (un)constitutionality of APA's position

    Exhibit C - APA, role of Cecil Wray, APA board member, head of enforcement

    Exhibit D - Post-Star columns, re public opinion

    Exhibit E - see D

    Exhibit F - Legal costs for comparison

    Exhibit G - As submitted to APA, March 28, 2008 - by Assemblywoman Teresa Sayward, Albany and Willsboro, NY

September 21, 2009 - Affidavit of Howard Aubin Esq.

September 23, 2009 - Affirmation of Ronald J. Briggs Esq.

September 17, 2009 - Affidavit of Jorge Valero Esq.

September 21, 2009 - Lo and Behold! Bravo Judge Meyer, $200 for the good guys, a practice session.  

In which government uses snail-mail on the 4th and we use the fax on the 8th; to express our support for the New York Farm Bureau and our contempt for those who would suppress the voice of the people in the name of justice.

September 8, 2009 -- Letter of John Privitera, Esq. Supporting the Farm Bureau's Motion to File an Amicus Brief in Support of Lewis Family Farm's Motion for Counsel Fees

September 4, 2009 -- Letter of Loretta Simon, Esq. Opposing the Farm Bureau's Motion to File an Amicus Brief in Support of Lewis Family Farm's Motion for Counsel Fees

Sept. 1 -- Letter Order of Judge Meyer granting Lewis Family Farm's request to extend its deadline to reply to the State's opposition papers to September 23rd.

Sept. 1 --  E-mail requesting an extension on Lewis Family Farm's deadline to reply to State's opposition to motion for counsel fees.

Aug 28 -- In which The Court sets October 2nd, 2009, for Oral Argument.

Aug 28 -- Memorandum of Law in Opposition to petitioner's motion for counsel fees.

Aug 24 -- Affidavit of Cecil Wray Jr., Esq., of 47 East 88th Street, New York, New York 10128, and Hickey Road, Keene Valley, New York 12943, and 1861 Via Bellezza, Wellington, Florida 33411, in support of foregoing.

Aug 28 -- Affirmation of Loretta Simon, Esq., in support of foregoing.

Aug 28 -- New York Farm Bureau petitions the Court of Hon. Richard B. Meyer, in support of our motion.

Aug. 28 -- Letter from Lewis Family Farm's counsel requesting alternative dates for oral argument.

Aug. 26 -- Letter from Hon. Richard B. Meyer requesting oral argument on September 11, 2009 for the Lewis Family Farm's motion for fees.

In which we present the logic to the Court of the trial judge.

Aug. 19, 2009 -- Demand that State of New York satisfy outstanding judgments of $100.00 each to Salim B. Lewis and Barbara A. Lewis.

Aug. 13, 2009 -- Lewis Family Farm's motion pursuant to the New York State Equal Access to Justice Act, in which the Farm seeks an order requiring the State to pay the Farm $208,770.06 in attorney fees and expenses.


1.  Notice of Motion and Affirmation of John J. Privitera, Esq. in support of Lewis Family Farm's motion to recover counsel fees.

2.  Affidavit of Salim B. Lewis, sworn to August 13, 2009, in support of Lewis Family Farm's motion to recover counsel fees.

  1. 3. Memorandum of Law in support of Lewis Family Farm's motion to recover counsel fees.

New York law provides support for certain legal fees for individuals and small companies when the State's actions fail to meet the test. Here, it is clear: as predicted David Slayed Goliath. Now, Goliath wants lights out in E-town as he prepares to return David's Stone as required by the Court. NB. APA remains silent on this case. Not a word.
Other APA
Motion for Fees
The $50K
The DecisionThe_Decision.html

In which government pays farm Judge Meyer’s award of $71,690.28 and slinks away without a word. Precedent is set, farm wins, and government fails in its latest attempt to abuse power to obliterate the record. As documented by our pillars of the Fourth Estate: Press Republican article May 6, 2011 by Kim Smith Dedam, Post Star article April 27, 2011 by Will Doolittle, Denton Publications editorial, May 2011 by Dan Alexander.

And more fully described in Epilogue.


Chapter 2

Chapter 1: A Play in Several Acts

Chapter 2: Endgame

Assistant Solicitor General Julie M. Sheridan lies. She is in the office of Eric T. Schneiderman, Attorney General. This lady has lied in open court and does so here.

Fact: agreement was formed yesterday - by word of mouth. She lies by omission. She leads the court to believe something that is not true.

We have settlement. (But) with this filing from government, we will be obliged to file as we have - to protect us from government. It's ping pong with the devil.

Lawyer Sheridan spoke with lawyer Privitera - on request, yesterday; pursuant to which, I authorized on government's new terms, clean of entanglement with the court of Judge Richard B. Meyer.

We refused to torque that judge. As we made clear, we will go with the agreement formed - as agreed to before the CASP conference with Robert K. Ruslander Esq., courtesy Senator Betty Little.

Fact - settlement discussions have run their course - a draft agreement has been promised to Mr. Privitera from Ms. Sheridan, today.

This is where it is - and lawyers have locked it in. Lawyers are honest officers of the court, right?

Promised. Government has promised - just as I promised the day before settlement talks with Mr. Ruslander, as requested by Sen. Little.

The number used will be that of Judge Meyer's finding; motions, all of it - will be dropped.


We expect a signed document - on GT: government time.

By check - clearing house, signed. During our lifetime.

Note: as expected, government went to the Appellate Division, Third Department - for the nth extension of time.

By declining on Wednesday, we forced the attached on Thursday - and we forced these shenanigans out into the open. Stay awake, journalists. This is how it works.

Government of, by and for - never runs out of time or the people's money. Government's strategy: time and costs, to kill the citizen adversary.

Government vs. the people. Lawyers in synch, it's symbiotic.

Exactly as the good judge has noted, in print...

To Judge Richard B. Meyer, Essex County, hip, hip, hooray..

May 5, 2011 - in which the government seeks 45 days to continue settlement talks.


With this letter, hand delivered yesterday, APA and the Attorney General's Office, in the person of Julie M. Sheridan Esq., Assistant Solicitor General - Dapartment of Law, reversed field; the AG for APA had demanded 45 days, an extension from next Monday, May 9th, to June 23rd or so, to perfect their appeal and to run the language of their new settlement offer here and there in the state capitol: read, lobby the AG and Chambers, read the governor, with help from The Adirondack Council, to find a way to perpetuate this insanity.

Against counsel's advice, we declined. We said, no. No to more. We said no to 'professional courtesy' and endless lawyering - thinking of Judge Richard B. Meyer, meaning, go to the Appellate Division, Third Judicial Department, and get your extension there - Attorney General.

Julie M. Sheridan Esq., answered my question on CASP day as we waited outside the Settlement Conference Room, speaking with a blank face: she declared that she had never settled a case - in the CASP conference. Not one.

She said she hoped this one would settle, and she meant this. Then she came with her offer to torque the good Judge Meyer - asking us to join in, and she asked with our counsel's support. She and he learned a lesson.

Government is out of control. Lawyers are out of control. The callings are failing. The people know this.

May 4, 2011 - Letter to Assistant Solicitor General denying extension of the briefing schedule.

May 1, 2011 - EDITORIAL: We the people aren't being served - from The Post-Star

The litigation strategy and record of APA and AG in our matter at a court ordered settlement meeting, at 10 o'clock last Tuesday morning - at The Supreme Court, Appellate Division, Third Judicial Department, Albany.

Note: I chose to make the behavior of the AG and APA public. By custom, lawyers are not inclined to discuss settlement until settlement is reached. Here - oddly - settlement was reached. The dollar amount was agreed. At which point government introduced a catch: we would go before Judge Meyer, by mutual agreement, and ask him to expunge the record in this matter. With thought - I agreed. It would be Judge Meyer's decision, after all. Then, with my agreement, the AG insisted that our step with Judge Meyer would have to be successful for any payment to be made. The AG wanted to condition payment on Judge Meyer's willingness. Hence, the settlement was no settlement at all. It was merely government's promise to write a check when, and if, Judge Meyer agreed. The record would have to be torched for government to act. In a sense, government was buying the Court of Judge Meyer, the people's court. For $72,000 government proposed to alter the record, to eliminate any trace of two years' action.

By conditioning our agreement on the Court's willingness to expunge its record, the AG and APA make a mockery of the settlement process - and introduce an element in the record of APA and AG behavior that aptly describes the length to which these bodies will go in litigation. APA and the AG's office need an overhaul, top to bottom. They have lost their way. The court does not exist to ratify the wishes of our AG. The AG and APA must submit like all others to the decisions of a court of justice. And our cunning governor - must direct APA and all others in the path to a different course of action. This is shameful - and offers further proof - if needed - that APA and the AG have become rogue agencies. The people deserve better. Our thanks to The Post-Star of Glens Falls.

In which farm counsel is rebuked:

April 6, 2011 - The Honorable Richard B.Meyer’s decision

In it’s continuing effort to avoid justice the Attorney General seeks delay over the summer hiatus:

March 10, 2011 - Appellate Division's decision on the consolidation/extension motions

March 1, 2011 - LFF's Cross-Motion for Extension and request for tight briefing schedule

March 1, 2011 - Appellate Division's CASP (Settlement) Conference Notice

February 21, 2011 -  APA's motion, which seeks consolidation of all outstanding appeals without a definitive briefing schedule.

Motion to Reargue:


January 25, 2011 -  Reply Affirmation of John Privitera, in which LFF's counsel again informs the Court of a client's right to communicate with counsel

January 20, 2011 - Affirmation of Loretta Simon, in which the APA's counsel forgets that LFF's arguments were properly made before the Court on the original motion.


January 20, 2011 - APA's Memo of Law in Opposition, in which the APA states that the Court did not misapprehend anything that need to be reargued


January 19, 2011 - APA's Cross-Notice of Appeal, in which the APA cross-appeals the final judgment awarding fees to LFF.

In which the Appellate Division, Third Judicial Department, agrees with us - designating APA as "Appellant" - requiring APA to submit any appeal by February 22, 2011. 

Lewis Family Farm would have 45 days from receipt of an APA appeal to respond.

A careful read of Judge Meyer's last Opinion will find a description of government's behavior in this case - and that behavior continues.

This all started as a vendetta and continues as a vendetta - and some of those involved since 1998 have departed. We have made no decision regarding the emailed statement of Paul Thomas Van Cott  Esq., of APA. 

December 21, 2010 -- Appellate Division Decision

In which counsel motions the court of Judge Richard B. Meyer for leave to reargue.

December 17, 2010 -- Motion to Reargue

December 17, 2010 -- Record on Motion to Reargue

November 30, 2010 -- Judgement with Notice of Entry: APA has 35 days in which to appeal

November 29, 2010 -- LFF's Reply to Cross-Motion, in which the Court is informed that the parties agree that the APA should be required to brief first, if the state chooses to appeal Judge Meyer.

November 26, 2010 -- APA's Opposition to Cross-Motion (Sheridan Letter), in which the APA addresses an inconsequential procedural issue and acquiesces (through silence) to LFF's cross-motion.


Appeal Foreplay

November 18, 2010 -- APA's Motion to the Appellate Division, Third Judicial Department, in which APA seeks an extension to appeal, requested on improper notice.

November 24, 2010 -- LFF's Cross-Motion, in which the farm opposes APA's motion and seeks its own extension to appeal; and, if the APA is allowed to appeal, LFF requests that the APA be deemed the "appellant" thus, required to brief first.

In which the State files its Pre-Calendar Statement in anticipation of appeal.

March 29 -- Pre-Calendar Statement

Feb 26 -- Notice of Appeal

Among the most disturbing aspects of this 4-year litigation is the behavior of government. It is not that they are wrong on the law and in their manner. That’s a given.

It's their purpose and willingness to lie. That’s incredible.

When we came here, we came because we trusted APA. Delusional behavior, the need to believe in our government. We plead. 

Today, we know better. This web site is here to educate others in what we have learned.

This is counsel's response to Friday's pile from Loretta Simon of Andrew Cuomo's office in Albany - speaking for APA.

The experience of dealing with Loretta Simon and APA bureaucrats - not to mention the office of Andrew Cuomo - is disturbing. 

Read the message at Welcome. Carefully. Keep an eye on Other APA Cases. Watch for Tim Jones' case.


March 25 -- Letter to Judge Meyer


Suddenly, the State suddenly has gained consciousness of the fact that State taxpayers are paying for this.  (Memo, pg. 4).  Perhaps the APA should have thought of that in the beginning...

The State has sought to interject itself into the attorney-client privilege.  (Memo, pg. 5)

The State has sunken to the level of its client (Paul Van Cott, APA enforcement) by resorting to name calling.  The State refers to Lewis Family Farm as Sandy's "corporate alter ego" despite two court decisions saying that the Lewises are not part of this case.  (Memo, pg. 6).

Obviously, the state has gone to great lengths (and considerable taxpayer expense) in fighting this round.  They put in another color-coded chart nit-picking every entry of the final bill.  (See Ex. B to AAG Loretta Simon’s Affirmation)

March 19 -- Affirmation of AAG Loretta Simon -- In which the State ignores how hard it sought to punish the Lewis Family Farm and argues that the Lewis Family Farm's fee application is excessive



The Court indicated no additional briefing was to be submitted. Regardless, here she reargues the case in a Memorandum of Law.


March 19 -- APA's Memorandum of Law -- In which the State submits an unauthorized recitation of law and further argues that the Lewis Family Farm's fee application is excessive.

In which, we brought sunshine to show law and fact, as given to the prejudiced a second time - on January 22, 2008, in a first Memorandum of Law, Right to Farm in Champlain Valley of New York.

March 4, 2010  Letter to Hon. Richard B. Meyer


  2. 1. Third Affirmation of John J. Privitera, Esq., dated March 4, 2010, as Counsel for the

  3. Petitioner, which maintains that:

  4. • The McNamee Law Firm is entitled to a judicial determination under Article 86 of the CPLR as to the "kind and quality of the services" rendered to the Lewis Family Farm;

  5. • The McNamee Law Firm is part of the "prevailing community" in the Fourth Judicial District, such that our rates should be regarded as "prevailing market rates" under Article 86 of the CPLR;

  6. • The award sought is actually below the "prevailing market rate" in the Fourth

  7. Judicial District as established by the enclosed Affirmations of Michael J.

  8. Cunningham, Esq. ($340 per hour); Jerry Hoffman, Esq. ($350 per hour); Cynthia Feathers, Esq. ($300 per hour) and Benjamin R. Pratt, Jr., Esq. ($275 per hour), all of which confirm the Affirmation of Ronald J. Briggs, Esq., who attested that there are a number of attorneys in the Fourth Judicial District who charge $300 per hour.

  9. EXHIBIT A: Privitera Resume

  10. EXHIBIT B: 2004 Economics of Law Practice Survey      Part 1          Part 2           Part 3

  11. EXHIBIT C: Court Ordered Billing Records Served on State on 2/12/10

  12. EXHIBIT D: Billing Records Through 3/4/10

  13. EXHIBIT E: The Right to Farm in the Champlain Valley of New York:  The Matter of Housing at the Lewis Family Farm

  14. 2. Second Affidavit of Salim B. "Sandy" Lewis, sworn to,March 3, 2010, in further support of the Lewis Family Farm's application for counsel fees and expenses.

  15. 3. Affirmation of Jacob F. Lamme, Esq., dated March 4, 2010, which establishes that the $87,829.95 in fees and expenses challenged by the Agency is grossly inaccurate given this Court's Decision and Order of February 3, 2010, and that the small number of fees and expenses in actual dispute were reasonably and necessarily incurred in the

  16. prosecution of this proceeding. Exhibit A Oral Argument Transcript 10/30/09

  17. 4. Affidavit of Jorge Valero, sworn to March 1, 2010, which establishes that the McNamee Law Firm has an office located in the Fourth Judicial District and clarifies that firms in the "Capital Region" routinely practice in the Fourth Judicial District.

  18. 5. The Affirmation of Ronald J. Briggs Esq., and Affidavit of Howard Aubin which are already in the record, establish the aura inside the Blue Line that leads to a scarcity of counsel for the kind of litigation at issue in this case.

  19. 6.  Affirmation of Cynthia Feathers, Esq.


  21. 7.  Affirmation of Benjamin Pratt, Esq.


  23. 8.  Affirmation of Jerry Hoffman, Esq.


  25. 9.  Affirmation of Michael Cunningham, Esq.

March 4, 2010 - LFF's Notice of Cross Appeal, in which the Farm protects its right to collect legal fees incurred in defending against the State's illegal "Counterclaim"

In which Attorney General Andrew Mark Cuomo preserves his right of appeal.

Comment: On Fred Dicker, February 5th, I said that Cuomo's office would not appeal Judge Meyer. I continue to believe this. Attorney General Andrew Mark Cuomo is stalling for time. He's running, and Lewis v. APA  is embarrassing for him and dangerous to his campaign.

February 26, 2010 - APA's Notice of Appeal

In which counsel acknowledges a conference call among the parties and withdraws an earlier request.

February 18, 2010 - Letter to Justice Richard B. Meyer

In which Attorney General Andrew Mark Cuomo pleads the Court of Hon. Richard B. Meyer to cancel the court-ordered public hearing.

February 12, 2010 - Counsel responds

February 11, 2010 - Loretta Simon Letter to the Honorable Richard B. Meyer.

February 5, 2010 - Housekeeping - Letter to reschedule evidentiary hearing.

In which Justice Richard B. Meyer rules... granting recovery of counsel fees to Lewis Family Farm, Inc.

February 3, 2010 - Justice Richard B. Meyer’s decision

Chapter 1 Describes the chronology from August 2009, when Farm counsel filed its application of fees, through February 3, 2010, when Judge Meyer rules farm entitled to fees.