City Contractor Sues Ex-City Engineer for $10 Million Over Critical Remarks

For the owner of Accadia Contract-ing, Paul Marinaccio, suing is not something he is afraid of. Not so true of frogs. Marinaccio sued the Town of Clarence and Kieffer Enterprises Inc. after runoff diverted onto Marinaccio's 40 acre property from a nearby Kieffer subdivision, turned it into wetlands which caused frogs to gather there. "I can't get in my garage because of the frogs," Marinaccio told a jury. "They're right in front of the damn door." The jury agreed and he won an award of $1.6 million. "I'm petrified of the little crea-tures," Marinaccio said. It is unclear as of press time whether $1.6 million Marinaccio made from being scared of frogs has helped allay his fear of the awesome creatures.

Will things Skurka said, help Paul Marinaccio make as much money as frogs did?

These little guys made Paul Marinaccio a lot of money.

A May 24 lawsuit filed in New York State Supreme Court by lawyers representing Accadia Site Contracting charges former city engineer Jeffrey Skurka with providing media outlets including this newspaper with false information designed to damage the company’s reputation.

The suit seeks damages, costs and attorney’s fees in excess of $10 million.

Accadia replaced Man O’ Trees as the primary contractor on the moribund Lewiston Road project, a road rebuilding project that is nowhere near completion despite being millions of dollars over budget and nearly two years behind schedule.

Currently, Accadia is facing a total of $84,000 in fines for violations found following an inspection of the work site by representatives from the U.S. Department of Labor’s Occupational Safety and Health Administration’s Buffalo area offices.

A news release issued by OSHA on May 22 said that, during a March 7 site visit, agency staffers found workers in a 7-foot deep vertical-walled excavation that lacked protection to prevent wall cave-ins, and a ladder every 25 feet to facilitate a swift and safe exit from the excavation. In addition, OSHA said eight inches of water accumulated in the excavation’s bottom, increasing the likelihood of a collapse.

An unprotected excavation can turn into a grave in seconds, crushing and burying workers beneath tons of soil before they have an opportunity to react or escape,” said Arthur Dube, OSHA’s area director in Buffalo. “These workers were fortunate — not lucky, because workplace safety must never be dependent on luck — that they were not injured or killed.”

But the Accadia lawsuit against Skurka ignores the fact that the company was charged with violating OSHA safety regulations. Instead, it calls Skurka’s claim in an April 9 Niagara Falls Reporter article that OSHA was (ital) planning (end ital) to charge the company.

On April 9, 2013, Defendant caused an article to be published in the Niagara Falls Reporter which contains the following false and defamatory statements made by him regarding trenches dug by Accadia during the Project,” the lawsuit reads. ‘I was there when OSHA made the inspection and from what I am told by the inspector, OSHA will cite Accadia for serious violations and willful violations.

How Skurka saying that OSHA was planning to charge Accadia with violations could be construed as “false and defamatory” when OSHA did, in fact, charge the company with the violations Skurka described is not explained.

OSHA issued a willful citation, with a fine of $70,000, for the unprotected excavation. Two serious citations, with $14,000 in fines, were issued for the water and ladder hazards. A willful violation is one committed with intentional, knowing or voluntary disregard for the law’s requirements, or with plain indifference to worker safety and health. A serious violation occurs when there is substantial probability that death or serious physical harm could result from a hazard about which the employer knew or should have known.

But language contained in the lawsuit would lead a reader to believe that the only one claiming Accadia did anything wrong was Skurka.

Defendants' statements are defamatory per se because they impugn Accadia's business reputation and integrity, and falsely accuse Accadia of conduct in violation of federal safety rules and laws,” the suit states.

Sources versed in New York’s defamation and libel laws told the Reporter that Skurka may face some legal exposure if OSHA were to suddenly drop all of the charges its own on-site inspection revealed, or if Accadia successfully defended itself at an OSHA hearing, but either outcome is considered highly unlikely.

Skurka was fired by the city on April 29, meaning that at the time the Reporter article appeared he was a city employee speaking to the media about his job. Under normal circumstances, the city would be all but certain to pick up his legal bills, and may have to do so in any event.

I was fired for doing my job and doing it well, again,” he said at the time.

The former city engineer said he is currently contemplating his own lawsuit against the city.

I m talking to an attorney right now,” he said following his dismissal.

Neither the Niagara Falls Reporter nor any other media outlet was named as a defendant in Accadia’s lawsuit, which was filed by the Buffalo law firm of  Lipsitz, Green, Scime & Cambria LLC.