SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ULSTER Charles Whittaker Plaintiff : Index No. Plaintiff(s) EF2023 / 2585 vs AFFIDAVIT IN SUPPORT Donald Markle, 111 and Joseph Maloney Defendant(s) STATE OF NEW YORK COUNTY OF ULSTER ss: | Joseph Maloney, being duly swom deposes and says: 1. 1am a Defendant in the above entitled action and submit this Affidavit in support of my Motion for an Order and Judgment Dismissing Plaintiff's Verified Complaint in its entirety pursuant to Civil Practice Law and Rules Section 3211(a){I(7(c). 2, Defendants currently a member of the Ulster County Legislature initially elected in November 2021, and was reelected in 2023. The Defendant is a member of the Ulster County Legislature's Energy, Environment and Sustainability Committee, which is also to ‘set policy and review contracts pertaining to but not limited to the activities of the Ulster County Resource Recovery Agency (UCRRA). 3, In October 2023, the Defendant was appointed to the UCRRA Reform Committee established by the Ulster County Legislature Resolution No. 549 adopted by the Ulster County Legistature on October 17, 2023. The Legislature established the “UCCRA Reform Committee, to review UCRRA enabling legislation, operations, policies, and the contractual agreement with Ulster County, and recommend reform measures to the Legislature ...." (See Ulster County Legislature Resolution No. 549 Establishing TheUlster County Resource Recovery Agency (UCRRA) Reform Committee annexed hereto as Defendant's Exhibit A.) . In the Plaintiff's Verified Complaint paragraph 11, Plaintiff contends Defendant telephoned on 8/24/23 Andrew Ghiorse Chair of UCCRA Board of Directors according to Plaintiff during Defendant's conversation with Andrew Ghiorse, Defendant “demanded that the guys who stole the compost be fired.” . The Plaintiff asserts that Defendant's purported alleged defamatory statement made during the telephone conversation with Andrew Ghiorse Chair of the UCCRA on 8/24/23 referred to the Plaintiff and Plaintiff's brother William Whittaker, and that Defendant reasserted and repeated Defendant Donald Markle’s statements made before the Ulster County Legislature Environmental Energy Services Committee on May 5, 2021 (5/2/21). . At the Ulster County Legislature's Environmental Energy Services Committee on 5/2/21 as noted in paragraph 7 Of Plaintiff's Verified Complaint Defendant Donald Markle publicly stated the Plaintiff and his brother William Whittaker “are monopolizing" all distribution of compost at the UCRRA, “and basically lining their pockets of the head of operations ['] brother, who... also works there." The head of operations is Charles Whittaker, William Whitaker's brother.” . Defendant Donald Markle further stated at the County Legislature's Committee meeting on §/2/21 referenced in Plaintiff's Verified Complaint * that in my eyes being a person of the public and a result, its eft and it is not fair to every other resident who wants it." . The Defendant was not in attendance at the aforementioned meeting on 5/2/21 be it as a citizen and or in the capacity as an Ulster County Legislature Representative, Defendant was not a member of the Ulster County Legislature at that time. |. The Defendant Donald Markle's statements concerning the UCRRA compost operations before the Legislature's Environmental Energy Services Committee on 5/2/21 prevailed upon Ulster County Comptroller March Gallagher to first subpoena the UCRRA for the purpose of auditing the books of the Agency primarily focusing on its compost operations.After a legal dispute, the UCRRA subsequently abandoned the legal dispute with the ‘County Comptrolier and the audit of the compost operations was performed. 10. The completion of the audit of the UCRRA compost operations published in 2022 found ‘no theft but, did in fact criticize the Agency for not having any policy conceming the sale or distribution of compost. The County Comptroller's actions and findings precipitated widespread local media coverage and interest by several Ulster County Legislators who were receiving inquiries and complaints from their respective constituents concerning the compost operations at the UCRRA and the Plaintiff and his brother Wiliam Whitaker's involvement with the same. 11. The Court must consider why the Plaintiff waited to file its Verified Complaint on October 31, 2023, over two (2) years after the statements made by Defendant Markle at the Legislative Committee meeting on 5/2/21, and over a year (1) after the report in 2022 from Ulster County Comptroller March Gallagher which, found no evidence of theft at the UCCRA with its compost operations? And why did Plaintiff assert in its Verified Complaint the First and Second Cause of Action in Slander/Slander Per Se only against Defendant Legislative representative Joseph Maloney and not file the same causes of action against Defendant Donald Markle the maker of public statements considered to be defamatory and adversely impacting Plaintiff's professional and personal wellbeing? 12. Therefore, it is respectfully submitted the following timeline shall assist the Court with the necessary context for answering the aforesaid questions that have been truly vexing or perplexing to Defendant. A. Defendant Donald Markle appears before the County Legislature Environmental Energy Services Committee on 5/2/21 making the purported defamatory statements concerning Plaintiff and his brother Williams dealings with the sale and distribution of compost at the UCRRA. B. In January 2022, Defendant was appointed to the Ulster County Legislature Energy, Environment and Sustainability Committee. As noted above, Defendant as a member of this Committee set policy and reviews contracts pertaining to but not limited to the activities of the Ulster County Resource Recovery Agency. C. The Ulster County Comptroller's Audit specifically focusing on the UCRRA compost operations was published in 2022.D. The telephone conversation on 8/24/23 between Defendant Joseph Maloney and ‘Andrew Ghiorse, Chair of the UCRRA Board of Directors cited in Plaintiff's Verified Complaint filed against Defendant. E. In October 2023, the Defendant was appointed by the Ulster County Legislature to the UCRRA Reform Committee whose mission is " to review UGRRA enabling legislation, operations, policies, and the contractual agreement with Ulster County, and recommend reform measures to the Legislature ...” (See Ulster County Legislature Resolution No. 549 Establishing the Ulster County Resource Recovery Agency the RRA) Reform Committee annexed hereto as Defendants Exhibit A.) F. Plaintiffs Verified Complaint filed with the Court on 10/31/23 as noted asserts Two Causes of Action in Slander and Slander Per Se solely against Defendant Joseph Maloney and not the maker of the purported defamatory statements that in fact were stated by Defendant Donald Markle at the Ulster County Legislature's Environmental Energy Services Committee on 5/2/21. 13. The gravamen of Plaintiff's Verified Complaint is based on the purported telephone conversation between Defendant Joseph Maloney and Andrew Ghiorse, Chair of the UCRRA Board of Directors on 8/24/23. The Plaintiff asserts during this conversation Defendant reiterated and asserted the defamatory statements in issue that were made by Defendant Donald Markle on 5/2/21 before the Legislature's Environmental Energy Services Committee. 14. The Court must see that Plaintiff has absolutely offered no proof whatsoever to support the allegations set forth in Plaintiff's Verified Complaint against Defendant Joseph Maloney filed with the Court on 10/31/23. Basically, the Plaintiff has not provided a scintilla of documentary evidence to support Plaintiffs allegations against Defendant Joseph Maloney only baseless allegations. Meaning, no Affidavits and or tape of the purported telephone conversation that occurred on 8/24/23 have been offered by Plaintiff for the Courts review and consideration to support Plaintiff's assertion that during the conversation with Andrew Ghiorse, Chair of UCCRA Defendant made defamatory statements about Plaintiff and Plaintiffs brother William Whittaker. 15. Furthermore, the Court should consider Defendant's conversation on 8/24/23 with Andrew Ghiorse, Chair of the Board of Directors of the UCRRA that was specifically and only inreference to the termination of the UCRRA's Executive Director Greg Oliver. The Defendant never discussed anything to do with Plaintiff and or his brother William Whittaker during Defendant's conversation on 8/24/23 with Andrew Ghiorse Chair of the Board of the UCCRA. 16. The Defendant telephoned Andrew Ghiorse, Chair of the UCRRA Board of Directors on November 8, 2023. The purpose of Defendant's telephone call to Andrew Ghiorse was to specifically discuss the recent establishment by the Ulster County Legislature on 10/17/23 of the UCCRA Reform Committee and Defendant's as well as Ghiorse's appointment to. the UCRRA Reform Committee. During the telephone conversation on 11/8/23 Defendant asked Andrew Ghiorse if he ever heard the Defendant make the defamatory statements in issue before the Court, and specifically whether Andrew Ghiorse had recalled whether Defendant made defamatory statements against Plaintiff and his brother William Whittaker during their telephone conversation cited in Plaintiff's Verified Complaint on 8/24/23. 17. The Defendant was informed by Andrew Ghiorse, Chair of the Board of Directors of the UCGRA that he has never heard Defendant make any defamatory statements whatsoever concerning Plaintiff and or Plaintiff's brother William Whittaker. The Defendant was also informed by Andrew Ghiorse that he did not hear Defendant make any defamatory statements in their telephone conversation on 8/24/23. (See Tape Recording of defendant's Telephone Conversation on 11/8/23 with Chair of the UCCRA Board Directors Andrew Ghiorse annexed hereto as Defendant's Exhibit B.) 18. It respectfully submitted given the aforesaid documentary evidence offered by Defendant to refute Plaintiffs baseless allegations and the timeline/chronology of events prior to the filing of Plaintiffs Verified Complaint on 10/31/23 (that was subsequent to the establishment of the UCRRA Reform Committee which Defendant and Andrew Ghiorse are member of ), itis not unreasonable for Defendant to consider that Plaintiff is engaging in a malicious prosecution undertaken to intimidate, distract, and impede Defendant from performing and fulfilling Defendant's duties and responsibilities as an Ulster County Legislator. And Plaintiffs claim for damages from Defendant is misplaced and disingenuous as any damage to Plaintiff's professional and personal reputation have been caused by the statement made by Defendant Donald Markle at the Ulster County Legislature Committee meeting on 5/2/21 and public outcry or fallout from the CountyComptroller's audit published in 2022 citing no UCRRA policy in place for the sale and distribution of compost. 19.No prior application has been made for the relief sought herein. 20.WHEREFORE, | respectfully request that this motion be granted, and that I have such further relief as the Court may find just and proper.Respectfully Submitted, eh tle —§ Joseph Maloney ‘Swom to before me this 21th day of November 23 ee Notary Public of the State of New York "ALIGIAG. DEMARCO. NOTARY PUBL STATE OF RW YORK ogibaton No. OIDEBZ015¢ ‘Ouutogi Dicons Coury Commision Een Apt 2,225Defendant's Exhibit A [setae estarResolution No. 549 October 17, 2023 Establishing The Ulster County Resource Recovery Agency (UCRRA) Reform Committee Referred to: The Energy, Environment and Sustainability Committee (Chairwoman Greene and Legislators Hansut, Levine, Maloney, and Stewart) Legislators Joe Maloney and Eric Stewart offer the following: WHEREAS, the Ulster County Resource Recovery Agency (UCRRA) is a public authority established by the state legislature and governed by the Public Authorities Law under which the County Legislature appoints the members of the UCRRA governing board; and WHEREAS, the Ulster County Resource Recovery Agency receives and disposes of solid waste generated in Ulster County pursuant to a contract with Ulster County; and WHEREAS, in 2023 two of the five members of the UCRRA board resigned and members of the UCRRA board and the public have proposed reform or abolition of the UCRRA; and WHEREAS, the County Charter and the Legislature Rules of Order authorize the Legislature to establish special committees; now, therefore be it RESOLVED, that the Legislature establishes a special committee, known as the UCRRA Reform Committee, to review UCRRA enabling legislation, operations, policies, and the contractual agreement with Ulster County, and recommend reform measures to the Legislature; and, be it further RESOLVED, that the membership of the UCRRA Reform Committee shall include (1) the Chair of the Legislature or the Chair’s legislative member designee; (2) the Chair of the Ulster County Legislature’s Energy, Environment and Sustainability Committee or Energy, Environment and Sustainability Committee member designee; (3) a legislative member appointed by the Minority Leader of the Ulster County Legislature; (4) the County Executive or representative appointed by the County Executive; (5) the County Comptroller or representative appointed by the County Comptroller; (6) the President of the Ulster County Association of Town Supervisors and Mayors or Ulster County Association of Town Supervisors and Mayors member designee; (7) the Chair of the UCRRA Board of Directors or UCRRA Board of Directors member designee; and, be it further RESOLVED, that all appointments to the UCRRA Reform Committee shall be made within thirty (30) days from the passage of this resolution; and, be it further-Page 2- Resolution No. 549 October 17, 2023 Establishing The Ulster County Resource Recovery Agency (UCRRA) Reform Committee RESOLVED, that the Commission shall first meet within thirty (30) days of its full membership appointment; and, be it further RESOLVED, UCRRA Reform Committee members, once appointed, shall serve for the duration of the Committee assignment; and, be it further RESOLVED, that the first meeting of the UCRRA Reform Committee shall be called by the Chair of the Legislature or Chair’s legislative member designee and at that meeting the permanent Chair of the Committee shall be elected; and, be it further RESOLVED, the UCRRA Reform Committee shall establish its own schedule for meetings, and within six (6) months of its initial meeting, the UCRRA Reform Committee shall provide a written report of its findings and recommendations to the Ulster County Legislature; and move its adoption. ADOPTED BY THE FOLLOWING VOTE: AYES: 22 NOES: 0 (Absent: Legislator Fabiano) Passed Committee: Energy, Environment and Sustainability on September 7, 2023 Referred back to Energy, Environment and Sustainability Committee at Legislative Session on September 19, 2023 Postponed in Committee: Energy, Environment and Sustainability as amended on October 5, 2023 until a Special Meeting scheduled for October 16, 2023 Passed Committee: Energy, Environment and Sustainability as amended on October 16, 2023 FINANCIAL IMPACT: NONE- Page 3 - Resolution No. 549 October 17, 2023 Establishing The Ulster County Resource Recovery Agency (UCRRA) Reform Committee STATE OF NEW YORK COUNTY OF ULSTER 1. the undersigned Clerk of the Legislature of the County of Ulster, hereby certify thatthe foregoing resolution is the original resolution adopted by the Ulster County Legislature on the 17 Day of October in the year Two Thousand Twenty-Three, and said resolution shall remain on file inthe offiec of said clerk. IN WITNESS WHEREOF. I have hereunto set my hand and seal ofthe County of Ulster this 19® Day of October inthe year Two Thousand Twenty-Three {s]Victoria A. Fabella Vieworia A. Fabella, Clerk Ulster County LegislatureDefendant's Exhibit B Audio File to be uploaded onto the NYSCEF System