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Judge rules prosecutor can pursue second lawsuit against Niagara County

NIAGARA FALLS – Niagara County Assistant District Attorney Elizabeth R. Donatello received the green light last week to pursue a second lawsuit against the county over the way she allegedly has been treated by District Attorney Michael J. Violante.

State Supreme Court Justice Mark A. Montour, however, said Donatello’s notice of claim to the county – a mandatory legal preliminary to a lawsuit – may include only charges of retaliation against her by Violante since Feb. 5, 2014. It cannot include the harassment and gender discrimination allegations that Donatello included in her federal lawsuit against the county.

Attorney Sharon M. Porcellio, who represents the county, said in court that once Donatello files the notice, she will have a year and 90 days to bring the actual lawsuit in State Supreme Court.

After the notice is filed, the county will be entitled to question Donatello under oath in a closed-door hearing.

The argument before Montour was over Donatello’s request to file the notice late. Normally, a notice of claim against a local government must be filed within 90 days of the act to which the plaintiff objects.

Montour said only allegations that Violante retaliated against Donatello after February 2014 for her 2013 complaint about her treatment can be included in the notice, while the gender discrimination and harassment complaints are “time-barred.”

Donatello, a former sex crime prosecutor, first complained about Violante allegedly making sexual comments about her and other female prosecutors in the summer of 2013. She also asserted that Violante was favoring a male prosecutor over her in terms of workload and scheduling.

Andrew P. Fleming, Donatello’s attorney, said the county knew of Donatello’s complaints since mid-2013, so allowing her to sue now produces no prejudice against the county.

An investigation of Donatello’s assertions, signed by Porcellio and posted as an exhibit on the federal court website, discounted her claims and serves as the cornerstone of the county’s defense against the federal lawsuit.

Donatello was transferred to handle welfare fraud cases after her return to work in the fall of 2014, following an illness of several months.

The transfer removed her from all of the other prosecutors by shifting her workplace to the Human Resources Building in Niagara Falls.

The proposed notice of claim also asserts she was denied pay and benefits during her six-month illness.