Lewiston Road: The road to court

The Route 104 project is headed to court.

The long-delayed Lewiston Road project is behind schedule and well over budget.

The contractor Man O’ Trees stopped work on the project last fall supposedly in a payment dispute and over the amount of radioactive slag buried under the road.

The City believes they walked off the job, and, as a result, filed a lawsuit.

In response, Man O’Trees CEO David C. Pfeiffer has brought his own action.

After a series of public rounds and accusations involving Mayor Paul Dyster, Pfeiffer and members of the Council, centered largely on the real cause of the delays and the potential radioactive danger to the public, Pfeiffer and Man O’ Trees have filed, and were granted their Application for Preliminary Injunction: Order to Show Cause Containing a Temporary Restraining Order.

In layman’s terms, Niagara County Supreme Court Justice Ralph A. Boniello granted the Plaintiffs’ (Pfeiffer and Man O’ Trees) a court order that demands an answer from the Defendants (the City, Dyster, the City Administrator, a former and the current City Engineer, the entire City Council, and the City’s consulting engineers) to certain charges made by the Plaintiffs.

The Order to Show Cause, granted on September 6, 2012, requires the City to “show cause” or explain why the Plaintiffs should not be granted a preliminary injunction which would stop the City from engaging in various actions, mostly arising out of the Lewiston Road Project.

Pfeiffer hired Niagara Falls’ premier attorney, John Bartolomei, widely known as a supremely aggressive lawyer who can create tough legal challenges. The Summons and Complaint associated with this action is 105 pages long and contains 111 causes of action.

According to the affidavit filed in support of the Application for Preliminary Injunction, Bartolomei states, “Plaintiffs seek injunctive relief from Defendants’ continuing conduct constituting tortious interference with prospective economic relations, tortious interference with prospective business advantage, violation of statute, defamation, product disparagement, unfair competition, abuse of process and prima facie tort…. (and) from continuing conduct of the Defendants which constitutes fraud and Plaintiff Pfeiffer seeks injunctive relief from Defendants’ continuing conduct which constitutes the intentional and negligent infliction of emotional distress.”

Pfeiffer discovered at least six times more radioactive slag buried under the road that has to be removed than what was originally estimated. The City allegedly gave assurances that those issues would be addressed, through extensions of time and reimbursements of additional costs.

Originally, Man O’ Trees won the award of the contract as the lowest of three bidders. Man O’ Trees bid $7,713,000 or $1.3 million (15 percent) lower than the next lowest bidder.

The Complaint alleges the awarding of the original contract was based on flawed bid specifications that are part of a fraudulent machination characterized as “the Scheme.”

Paragraph 36 of the Complaint reads, “The City of Niagara Falls, by and, in concert with, the Mayor of Niagara Falls, the Niagara Falls City Council, the individual members of the Council and the City Engineer, contracted with the Defendant Wendel (Engineers) to be the Project Engineer and, in concert with one another designed and concocted a scheme to disguise a radioactive material remediation project as a highway reconstruction project”

It was necessary to come up with the Scheme because, knowing that Lewiston Road was contaminated, the City needed funds that were eligible for remediation projects, the suit alleges. Since the City fraudulently convinced contractors to bid of the construction job as opposed to a remediation job (the City left out of the bid spec the need for a radioactive material removal license), the suit alleges, the City is responsible for the delays and the health hazards to the public.

Other actions driving the Complaint are the improper filing of a reported $4 million lawsuit by the City and the release of new bid specifications for the Lewiston Road Project. The new spec supposedly has the same fraudulent elements of the Scheme.

As reported by the Niagara Gazette on June 26, 2012, Corporation Counsel Craig Johnson said the lawsuit would likely draw “defenses and counterclaims”, but ongoing lawsuits would not stop the City from working with another contractor.

Not exactly.

The Order does successfully temporarily enjoin or stop the City from “awarding a contract for the completion of the remaining roadwork on Route 104…”

That does not mean the allegations in the Complaint are correct or true. The City just has to maintain the status quo until the motion is argued.

The other item granted in the Order is that the Defendants are prevented from “making or publishing defamatory and/or disparaging statements regarding the Plaintiffs…”

Pfeiffer alleged that comments in the media and online injured his and Man O’ Trees ability to do business with subcontractors and suppliers.

Mayor Dyster made 19 statements about Pfeiffer that he considers defamatory that were published in print and online. After one article appeared in the Buffalo News, Dyster posted the article to his facebook page. He prefaced the link with the statement, “I will stand by the taxpayers and prevent them from being ripped-off by any unscrupulous contractors.”

By way of damages, should the Summons and Complaint make their way through the Court, the Plaintiffs are asking for $150 million.

Depending on when the Response to the Summons and Complaint is served, and the Reply to the Response, a court date could be set on September 19, 2012 or October 3, 2012 at 10:30 a.m.

Bartolomei is representing the Plaintiffs. Benjamin M. Zuffranieri, Jr. of Hodgson Russ LLP and Thomas O’Donnell, First Deputy Corporation Counsel are representing the City. Daniel C. Oliverio, a Partner at Hodgson Russ, stated, “It is a construction dispute between the contractor and the City. It’s unfortunate, but it happens. The City feels there was a breach of the contract and is going forward to replace the contractor, as anyone would do in this circumstance. his is not unusual in a construction dispute. We hope to resolve it.”

He declined to comment on the fee arrangement his firm has with the city, however it is subject to FOIL request and the Reporter has filed one.

Corporation Counsel Craig Johnson was more reserved. “No, we’re in litigation with them (Man O’ Trees) and I can’t really say anything about it. I believe the Mayor has adopted a similar posture.”