Things went horribly awry last week for Mayor Irene Elia and the city's attorney, Richard Zucco, in connection with the legal battle over control of the former Splash Park property, located adjacent to the Seneca Niagara Casino at the corner of Rainbow and John B. Daly boulevards.
To begin with, the city failed to answer a motion for summary judgment filed by the Bainbridge-Wythe Partnership and Niagara Venture, developers of the Splash Park. State Supreme Court Justice Ralph A. Boniello III will rule on Wednesday, Feb. 26, whether this breach entitles the developers to a default judgment on the $267 million they have been seeking.
Boniello will also ask the mayor to explain, in a proceeding scheduled for April 7, why he should not hold her in contempt of court for authorizing demolition to be done on the property, when its ownership is a matter of legal dispute. The judge has already warned the mayor that failure to appear may result in her arrest and imprisonment.
Additionally, the Reporter obtained confidential memos issued by Zucco to city employees subpoenaed in the case instructing them to disregard their legal obligations to Boniello's court. Still, the memos stated, the employees were free to cash their $15 "witness fee" checks issued along with the subpoenas by Bainbridge-Wythe and Niagara Falls Redevelopment, despite having no intention of ever showing up in court.
The legal wrangling relates to a 1999 agreement between the city, Bainbridge-Wythe and Niagara Falls Redevelopment that was supposed to have transferred ownership of the Splash Park to NFR in return for a payment to the city of $3 million. When Elia took office in 2000, she decided she didn't like the deal cut by her predecessor, James Galie, and refused to honor it.
Both Bainbridge-Wythe and NFR filed suit, and the matter was before the court when the Elia administration gave its permission this past summer to the Seneca Nation of Indians to demolish the property to make way for a parking lot adjacent to the new casino.
Boniello issued a restraining order to halt the work, an order that was completely ignored until he threatened the mayor and a number of her subordinates with jail time.
Clearly though, the most serious of the problems is the possibility of a default judgment that would bankrupt the city. On Jan. 30, Bainbridge-Wythe attorney John Bartolomei filed a motion before the court asking for a summary judgment in the case. The city had 10 days to answer the motion, but failed to do so. Bartolomei asked Boniello for a default judgment on Feb. 20, which prompted Zucco to issue a 10-page response explaining why he failed to take action within the allotted time.
"This delay in serving the answer is very short, ten days," Zucco wrote, going on to say the "complexity of the complaint" filed by Bartolomei constituted a "reasonable excuse" for his tardiness.
At least he didn't say the dog ate it.
"He'd have been better off admitting he screwed up," Bartolomei told the Reporter. "There's no question the city's in default, their argument is that it's excusable."
On Dec. 5 and again on Jan. 17, Zucco sent memos to a number of city employees connected with the Splash Park demolition work ordering them to ignore subpoenas issued in the case.
"Also enclosed are two checks payable to each of your orders in the amount of $15, being your witness fee," Zucco wrote. "You may retain those or endorse them to the City Controller as you see fit."
One local attorney found the memos to be a bit shady, ethically speaking.
"The witness fees are to cover car fare, lunch, just the inconvenience of having to go in and give a deposition," he said. "To instruct someone not to show up and then, in the next sentence, tell them they can keep the checks, that's certainly not something I'd put in writing."
| Niagara Falls Reporter | www.niagarafallsreporter.com | February 25 2003 |