Lewiston Road work expected to
start this week

The end of the road... at last? Judge Frank Caruso (left) ruled - let the work resume...

The road work on Lewiston Road may have commenced by the time you read this.

As promised, State Supreme Court Justice Frank Caruso handed down a decision last week in the first of many legal battles related to the long delayed road construction project.

The Route 104/Lewiston Road project has stalled due to feuds between the contractor, Man O’ Trees, Inc. and the City of Niagara Falls over funding, public safety, work stoppage and breach of contract issues.

Caruso ruled in favor of the City and denied Man O’ Trees its request for an injunction to stop the City from giving the work to another contractor.

Prior to Caruso’s decision, the City awarded the Lewiston Road construction contract to Accadia Site Construction subject to city council approval. Man O’ Trees sued to prevent the city from giving Accadia the work. Accadia was low bidder at $4.4 million to finish the remainder of the job, now millions over budget.

The Council approved the contract with Accadia at their Monday, October 1 meeting. Weather permitting, work will commence this week, according to Paul Marinaccio, owner of Accadia.

In his nine page decision issued last Friday, Caruso vacated the temporary restraining order that prevented the City from awarding the contract to Accadia and freed City officials from the non-disparagement order sought by the plaintiffs Man O’ Trees and its owner David Pfeiffer.

From a legal perspective, Man O’ Trees failed to meet the standards to uphold a preliminary injunction. In order for an action seeking injunctive relief to be successful, there (1) must be a likelihood of success on the merits by the party bringing the action. (2) There must be the likelihood of irreparable harm to the party bringing the action if injunctive relief is not granted. (3) The court must consider the balancing of the equities between the parties. This requires the court to weigh factors such as public policy and the convenience or hardship to the parties in order to determine what is fair. (4) Sometimes, the court will also consider whether the public interest is disserved by granting or denying the injunction.

Caruso found that Man O’ Trees did not meet these standards.

The City successfully argued there was no irreparable harm to Man O’ Trees.

From the Court’s Decision and Order: “Irreparable harm cannot be shown here. This case is a contract dispute between a municipality and a contractor who was to be paid money to perform a service. ‘A preliminary injunction may not be obtained where, as here, the irreparable loss claimed is economic.’ The complaint filed in this case contained requests for monetary compensation and a request for money damages undercuts a claim of irreparable harm. This is also not a unique project which may give the plaintiff some special non-monetary reward for completion.”

On the charges of defamation, Caruso decided that Mayor Dyster’s statements critical of Man O’ Trees were privileged as a public official and not actionable. In other words, there was no proof that what Dyster said was untrue. If he were to follow Man O’Trees’ line of argument, any contractor terminated from a job would have a cause of action against its employer. Caruso did not agree with that reasoning and found that the scales tipped in favor of the City.

Marinaccio told the Reporter his company has several times in the past stepped into jobs that had been stalled when other contractors failed to complete the work and he successfully completed them.

A few months ago, Marinaccio, while criticizing Man O’ Trees, told the Reporter the City was being too timid.

“The city should grow a set of balls and throw the (expletive) bum (Man O’ Trees’ David Pfeiffer) out of there so those poor people on 104 don’t have to put up with the dust and inconvenience,” he said.

Well the city did. Man O’ Trees is out. And Marinaccio added last week, “I plan to finish the work by July 2013 and will put a crew of up to 30 men on the job to get it done,” he said.

“You tell the people they won’t have to put with the dust and inconvenience much longer now that I’m on the job.”