A Greece man once poised to receive a $1 million payment from the Greece Police Department for its failure to show up in court has had his case dismissed.
Ken Budinski, 84, sued the Greece Police Department last year claiming officers responded flippantly to his call last September as he tried to save his arborvitaes trees from being cut down. His neighbors at the auto repair shop next door allegedly hired workers to cut down the trees along the perimeter of the property.
Budinski hand-wrote a federal complaint accusing the department of negligence and served it to the Greece town clerk in early October. He heard nothing from the town or department, and the mandatory 21 days to respond in federal court passed.
Budinski requested a default judgment on Nov. 27, and records show that U.S. District Court Clerk Mary Loewenguth issued a judgment for Budinski the next day, awarding him the full $1 million, plus $50,000 as interest.
WXXI News began asking questions about the judgment on Jan. 4. The next day, the town filed a motion to have the default judgment terminated.
In the motion, attorney Erin Elmouji with Weaver Mancuso Brightman, alleged that Budinski’s complaint was ignored because it was mislabeled internally as a notice of claim — a precursor to a lawsuit — rather than an actual federal lawsuit.
“As a result of this good-faith mistake, the Town (and Defendant) inadvertently overlooked the deadline for its response to the Summons and Complaint and failed to appear in the above-captioned action by that date,” Elmouji wrote.
The town sought to have the default judgment vacated and the case dismissed. Elmouji argued dismissal on three grounds: The trees were on property owned by Budinski’s business, Bud Labs, and a corporate entity cannot represent itself in court; that the police are not liable to protect a citizen from the actions of another under the 14th Amendment; and that there are no constitutional protections against “police negligence.”
Last week, the Greece Police Department and Budinski appeared in court. The default judgment was vacated, and — with Budinski’s consent — the case dismissed with prejudice, which means that the case cannot be reheard.
Town Supervisor Bill Reilich issued a statement announcing the town’s victory.
“The Town is pleased that Judge Wolford permitted an opportunity to defend itself and dispute Mr. Budinski’s allegations against the Police Department,” the statement reads. “Upon learning of the default, the Town promptly investigated the matter and determined that the failure to appear was the result of an innocent, good-faith clerical mistake in processing the papers served on the Town and entirely unintentional .... The dismissal of the action further confirms the Town’s position that these allegations were baseless.”
Before the dismissal, Budinski issued a final letter to the court. In it, he emphasized his belief that there was much more at stake than a bunch of trees.
“When law enforcement refuses to protect and enforce laws pertaining to property ownership, there is a complete breakdown of peace and order that is necessary for the existence of civilization,” Budinski wrote. “There is chaos.”
