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COURT TO RULE ON BID TO OUST MASIELLO FROM PRIMARY BALLOT

State Supreme Court Justice Robert E. Whelan will render a decision Tuesday on a legal effort by Common Council President James W. Pitts to get Mayor Masiello's name off the Democratic Party line in the upcoming mayoral primary.

The judge promised a quick ruling after attorneys Terrence Connors, John Curran and Mark Jason, representing Masiello, the Erie County Democratic Party and the party's Executive Committee, respectively, moved today for the dismissal of the action.

The suit, filed on behalf of Pitts by attorney James Shaw, contends that Masiello forfeited his right to the Democratic Party endorsement under party rules by accepting the endorsement of the Republican Party.

During a 35-minute hearing, lawyers for Masiello and the Democrats argued that the action brought by Shaw failed to meet requirements of the state Election Law and Civil Procedure Law.

Among their objections were claims that the court lacked jurisdiction in the matter, that some of the parties drawn into the suit were not served with legal papers and that the action was not brought within the required time limit.

Ironically, the legal documents filed by Shaw do not mention Pitts. Technically, the action was brought by Thomas J. Smith, a former vice chairman of the Erie County Democratic Committee and resident of Buffalo's Ellicott District.

But Pitts has stated publicly that he is behind the move and appeared in court today to observe the proceedings.

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