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By Mike Hudson

A bombshell motion filed last week in state Supreme Court calls for a mistrial in the case of the state's eminent domain seizure of the former Falls Splash Park property and demands that Judge Richard Kloch, who presided over the original trial, be removed from the case because of his relationship with attorney and former county Republican chairman Henry Wojtaszek.

The motion was filed by Niagara Falls attorney John Bartolomei, on behalf of Fallsite LLC, a company he owns in partnership with Niagara Falls Redevelopment.

Wojtaszek is a partner in the Harris Beach law firm, which represented the Empire State Development Corp. in the original proceeding. Last week's motion alleges that Kloch, Wojtaszek and state Sen. George Maziarz constitute a sort of unholy trinity that influenced Kloch's decision to turn the property over to the state for far less than it was worth.

"It is common knowledge that Judge Kloch's appointment to his judgeship was brought about by Henry Wojtaszek and Senator Maziarz, the Republican state senator," the motion contends. "Judge Kloch, Henry Wojtaszek and George Maziarz are all from North Tonawanda, and have been closely associated for many, many years. Judge Kloch's secretary is Senator Maziarz's wife."

Kloch is also the Roman Catholic baptismal godfather to Henry Wojtaszek's son, the motion states.

Because of his close relationship with Wojtaszek, attorneys for Fallsite asked Kloch to recuse himself from the trial. While Kloch said he was indeed Wojtaszek's son's godfather, and showed a picture of the boy he had in his chambers, he said he wasn't really that close to Wojtaszek and denied the request, the motion contends.

While Bartolomei argues that Kloch is personally biased against him, he also cites several instances in which the judge allegedly displayed a "predisposition of the land values and feasibility of development in Niagara Falls, New York," including a statement made in court in June in which the judge said "Niagara Falls is not sick, not on life support, but dead."

"It is usually difficult to determine the predisposition and lack of impartiality of a judge," the motion states. "Here, while we were given glimpses of it with regard to Niagara Falls, New York, land values and feasibility of development in Niagara Falls, the very issues that this judge had to decide in the ... case, his predisposition finally hits us like a ton of bricks when he declares Niagara Falls 'dead.'"

Bartolomei argued that the judge's remarks should disqualify him from any proceeding in which property values in the city are at issue.

"With the court's predisposition that 'Niagara Falls is dead' in mind, we can now see why the court would decide that the Splash Park was not economically feasible -- nothing is economically feasible in a dead city," he wrote. "Now we understand these things because they were obviously based on the judge's predisposition, bias and conflict of interest as outlined above."

While Fallsite had sought $75 million for the 18-acre Splash Park property and the custom water park fixtures on it, Kloch awarded just $17 million. The land was to be turned over by the state to the Seneca Nation of Indians in order to build a second hotel/casino complex, but was instead gobbled up by the non-sovereign Seneca Gaming Corp. and has sat fallow since being seized by the state.

Last week's gift of $250,000 by the Seneca Nation to the state's Republican Party to help candidates running for the state Senate is seen by some as payback for the support Maziarz, Jack Quinn, Michael Ranzenhofer and Catharine Young have given the tribe, which ultimately benefited from Kloch's decision in the Splash Park case.

NFR Executive Vice President Roger Trevino said the gift, along with recent news reports indicating Maziarz's interest in becoming Senate majority leader should the Republicans regain control of the Senate, may have provided further motivation for Kloch's decision.

Fallsite bought the Splash Park property from the city in 2003 for $3 million. It had sat dormant for 14 years previously, and the company put another $4 million into it before reopening it in the summer of 2005. Attendance averaged 3,500 visitors a day, and Seneca Niagara Gaming officials testified that it added to the resort atmosphere and provided a benefit for casino customers, especially those with children.

Reached late last week, Maziarz said he hadn't seen the motion and could not comment on it.

Niagara Falls Reporter www.niagarafallsreporter.com Nov. 1, 2010