OFFICERS WANT TO SETTLE. But you should see the General Release….

FORMER EPD Officer Matthew Albanese wants to settle the lawsuit against him concerning his illegal conduct and the assault that occurred when his victim was handcuffed to a metal chair and was viciously assaulted by Cattaraugus County Sheriff Bryan H Schwabenbauer, the same individual who was sued in Federal Court for substantially similar conduct in another case. Alarmingly, soon after the Motions to dismiss Schwabenbauer and Albanese failed, the victim’s star witness on the corrupt sheriff’s department ended up dead. The only remaining entities in the lawsuit are Schwabenbauer, Albanese and one other person.

Mr. Kochan, the victim, who is exposing the corruption that permeates the County of Cattaraugus New York was offered a settlement by Albanese and the other officer who are still named in the 2014 lawsuit. It came as a total surprise. It wasn’t much, but he wanted to move on and get back to his business and other more important matters. Their proposed General Release clearly shows they are scared to death of this website. 

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Cancellation Notice – Click to Enlarge

The offer came in March of 2019. March 12, 2019 to be exact. The victim was walking out of medical appointment in Buffalo which were follow-ups from the vicious attack upon himself that occurred in 2016 by the other members of the corrupt local deep state who tried to cover it up. This included a serious head injury that was not documented, diagnosed or treated in anyway which led to a stroke, or stroke like symptoms only days later. The local criminals were so worried about his injuries being documented, unknown person(s) somehow managed to cancel Victims first follow up medical appointment with real doctors in Buffalo..

So, after getting the call the victim proceeded over to his attorney’s office which was also in Buffalo. Interesting how the mediation appointment, which was scheduled after the medical appointment, happened to be on the same day and in the same city. The Victim’s medical appointment was scheduled months earlier, then the 1st mediation hearing was scheduled. It was for the same day. Because victim was told by his attorney office that plaintiffs rarely go to such mediation meetings, that they are a “mere formality”, he decided to stick with his medical appointment.

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Proposed General Release – Click to Enlarge

So the Victim goes over the settlement proposal with his Attorney. The Attorney did not have an actual copy of the proposal, i.e. general release, the ‘proposal’ was only verbally described to the victim.  The Attorney states that all the victim had to do is quit talking, or posting anything about Albanese and the other officer. It was a small sum, however based on what they were asking for he agreed to it. He also added that he would remove any statements that he had made identifying the other officer due to her concern about his injuries when she arrived on the scene at the 2016 vicious assault (another issue altogether). In the 2016 attack Mr. Kochan was carrying certified documents concerning the criminal conduct of corrupt local public servants he had just received from another victim in Buffalo. Guess what did not appear on the Ellicottville Police Department inventory list of Mr. Kochan’s car after the 2016 attack?

So all is good…. NOT. Mr. Kochan receives a copy of the proposed “General Release” about a week later. A General Release is a legal document releasing one party from the right to bring a claim against another party. The general release definition is a legal document releasing one party from the right to bring a claim against another party [1].

But first, it is important to understand how the ‘courts’ define words. It’s called the “plain meaning rule” [2][3], see also Associates, Inc. v Giancontier, 77 NY2d 157. The plain meaning rule dictates that statutes, in this matter contracts are to be interpreted using the ordinary meaning of the language of the statute. In other words, a statute is to be read word for word and is to be interpreted according to the ordinary meaning of the language, unless a statute explicitly defines some of its terms otherwise or unless the result would be cruel or absurd. Ordinary words are given their ordinary meaning, technical terms are given their technical meaning, and local, cultural terms are recognized as applicable. The plain meaning rule is the mechanism that prevents courts from taking sides in legislative or political issues. Additionally, it is the mechanism that underlies textualism and, to a certain extent, originalism .

The General Release

The general release not only includes defendants Albanese and the other officer. It also included the Town of Ellicottville, the insurance company and the attorney’s that represent the town of Ellicottville. None of whom were ever named as defendants in the first place. Further the wording in the general release is one for the history books literally. Some of the highlights of it;

“I ever had, now have or which my heirs, executors or administrators, hereafter can, shall or may have for, upon or by reason of any matter, cause or thing whatsoever from the beginning of the world to the day of the date of these events;”

Yes, that’s from the “beginning of the world” to the end of the world “hereafter can, shall or may have for, upon or by reason of any matter” FOR ANYTHING, which would include past, present and future events, which would be other lawsuits now pending. See how these things work?

it would allow MATTHEW H. ALBANESE, AMXXX X XXXXX, THE TOWN OF ELLICOTVILLE and SELECTIVE INSURANCE COMPANY OF NEW YORK to do whatever they wanted to the Victim and he, or his “heirs, executors or administrators” would have no legal recourse.

But it gets better;

“and being more particularly for all damages and injuries sustained as a result of my arrest on or about that occurred on or about May 21, 2014.”

Here they want the victim to admit he was arrested. One of his claims is false arrest.

And better;

“I further agree to defend, indemnify and hold harmless MATTHEW H. ALBANESE, AMXXX X XXXXX, THE TOWN OF ELLICOTVILLE, their insurance carrier and their attorneys for any and all outstanding claims and/or liens associated with this litigation.”

In other words, the Victim would have to pay (“indemnify”) the defendants and the TOWN OF ELLICOTVILLE [4], their insurance carrier and their attorneys for “any and all outstanding claims and/or liens…”

…and better still…

“[victim] and his attorneys agree that, except as otherwise required by specific court order, statute or other binding requirement of law, they will keep confidential any and all information obtained in this litigation, including all investigations”, mediations and settlement amount relating to CHRISTOPHER J. KOCHAN and his claims.”

Most of the “investigations” are posted on this website. This would force the victim to remove all of the articles in violation of his first amendment rights. See how that works? More proof that they are scared to death about CatCountyCorruption.com

…and better yet…

“While the parties represent that this agreement would not have been consummated absent the foregoing confidentiality covenants, the parties acknowledge that no portion of the settlement amount represents consideration for the mutual promise to maintain strict confidentiality of all the terms of this agreement.

Oh… you have to keep your mouth shut, but we don’t have to…  we will take you to court if you don’t, but we can do what we want with this agreement, and yes, we can use this in court against you.

This would be perfect for them, since they are not under any type of penalties. The other defendants could now use against the victim, like the false arrest claim.

It’s not over by a long shot…..

“…agrees to refrain from any defamation, libel or slander of MATTHEW H. ALBANESE, AMXXX X XXXXX, THE TOWN OF ELLICOTVILLE.”

The issue with this is the word “refrain” It means to stop something that has occurred, is occurring, or may occur in the future. In other words, they wanted the victim to admit he defamed MATTHEW H. ALBANESE, AMXXX X XXXXX, THE TOWN OF ELLICOTVILLE in the past, which he did not do. He only described their conduct concerning the events in question and what occurred in the course of his investigations of their conduct as corrupt public servants. Add this to the fact that if signed, they could still use the document against the victim based on the fact that there was no “mutual promise to maintain strict confidentiality”, however if the victim did not maintain strict confidentially he could be taken to court. They would also be able to use it is court to claim the victim defamed MATTHEW H. ALBANESE, AMBER S. GRAHAM, THE TOWN OF ELLICOTVILLE. See how that works?

Refrain (verb): third-person singular simple present refrains, present participle refraining, simple past and past participle refrained .

“…used words as they are commonly or ordinarily employed” People v Aleynikov, 148 A.D.3d 77

and…The long shot…..

“[victim] also agrees that he shall not at any time engage in any form of conduct, or make any statements or presentations (or cause them to be made), whether in writing or orally, that disparage or otherwise impact the reputation or goodwill of MATTHEW H. ALBANESE, AMXXX X XXXXX and THE TOWN OF ELLICOTVILLE”

This is the pièces de résistance. Here all that would have to be alleged is that the victim said something to somebody, and that somebody talked, or wrote about it and the victim would be held liable.

As you can see it was vague, i.e. overly broad, the whole general release is subject to being interpreted any which way. Exactly what you don’t want in a general release. The victim would have found himself in court for the rest of his life fighting this. You would think his Attorney would have shut this down ASAP, you will be in for a surprise…

SURE, THEY ARE NOT WORRIED ABOUT THIS WEBSITE… NO.. NOT AT ALL. 

e-mails-general-releaseThe victim visits his Attorney immediately. He told him that the general release does not fit the terms he agreed to, it was vague and could be broadly interpreted to mean anything.  The Attorney argues and tells the victim yes, the release only mean Albanese and the other officer. The victim told his attorney he did not agree with him and would not sign the general release in any manner what so ever until the release was worded clearly so that the average individual could understand exactly what it meant and to remove all other entities that were not named in the lawsuit. The victim would receive from his attorney the proposed changes about a week later. There were about three words changed which amounted to nothing.

All went quite, until late August 2019. The victim received a call from his Attorney’s office. He was told that defendants had filed a motion for settlement. They were asking the court to grant an order to force the victim to sign the General release (ever hear of that one?). The General release was filed at the beginning of August, 2019 and his attorney told the victim that if he did not sign it, the motion would go into default. A default occurs when the moving party files a motion and it is not opposed in any manner by the party it is served on. If the party it is served on refuses to oppose it, the opposing party defaults and agrees to it.

The victim was not aware of the motion being filed and his attorney did not contact him until a week before the default date. See how that works. Furthermore, the victims attorney did not discuss in any manner how the motion could be opposed. His attorney wanted the victim to sign it. The Attorney even threatened the victim that if he did not sign it, he would stop representing the victim. That did not go over well with the victim.

The victim then acquired a copy of the Motion to Settle. It contain numerous exhibits, some of which were the e-mail exchange between the defendants and the victims attorney. Its also called “attorney work” [5], which is forbidden to be disclosed, yet both the defendants attorney and the victims attorney had no problem disclosing there communications between each other and filing it in court, i.e. official public record.

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Victim Mandated to Appear at Mediation Hearing – Click to Enlarge

The victim also discovered more interesting items. The victim was MANDATED to attend the mediation hearings, yet he was told by his attorney that he did not have to go. The opposition used this failure to appear in their motion to dismiss.

Not only that the victim discovered some interesting e-mail exchanges (Attorney work) between the opposing attorney James Nash and his Attorney.

In it his attorney admits that he expected the victim to object to parts of the release. The Attorney only describes one objection the victim had though, when in fact he had multiple issues. his attorney uses the phrase “lo and behold

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E-Mail Exchange Between Attorney’s about part of vicitms repose to general release. Click to Enlarge.

lo and behold: used to present a new scene, situation, or turn of events, often with the suggestion that although surprising, it could in fact have been predicted [6].

At the end of the message his attorney states otherwise, I think it is a little overly broad

Do we have to fill in the blanks…..

So what is next? Will they attempt to have Mr. Kochan sign over power of attorney by asking him to sign a stipulation that they claim is needed to remove his attorney from the matter using legalese wording to trick him?  

Our will they attempt to try the old soviet method by claiming he has psychiatric problem and attempt to throw him in the Jack Nicholson suite in an attempt to shut him up again?

[1] https://www.upcounsel.com/general-release-definition
[2] https://en.wikipedia.org/wiki/Plain_meaning_rule
[3] https://contract-law.laws.com/interpreting-contracts/plain-meaning-rule
[4] https://www.merriam-webster.com/dictionary/indemnify
[5] https://www.law.cornell.edu/wex/attorney_work_product_privilege
[6] https://www.lexico.com/en/definition/lo