by Joshua Maloni
In the mounds of paperwork accompanying legal counsels for developer Jerome Williams and Lewiston Management Group LLC (the plaintiffs), Whirlpool Jet Boat Tours and the Village of Lewiston (the defendants), one tiny bit of information was missing Thursday in State Supreme Court: the original argument bringing the opposing sides before Justice Richard C. Kloch Sr. Without an attachment of complaint in a motion to dismiss, Kloch said, "I cannot do what I would love to do," and that is shelve Williams' case, which alleges the village violated the public trust doctrine.
The plaintiff contends the village's 2002 lease with the tourism company is contrary to the required usage of the waterfront land's easement, which is for the public benefit as a public recreation area. WJBT counsel John Bartolomei filed a motion to dismiss Williams' lawsuit, which is what brought the two sides together Thursday morning. Without the attachment of complaint in Bartolomei's appendix, Kloch said Williams could appeal an unfavorable judgment to the appellate court, which would likely send the case back to State Supreme Court for another go-around. As such, Kloch denied the motion without prejudice.
Bartolomei asked Kloch for permission to amend the motion to dismiss. Kloch consented, and the two parties have a return date with the judge tentatively scheduled for Dec. 1.
On March 24, Kloch dismissed the plaintiffs' first lawsuit, which challenged the validity and constitutionality of the village's November 2010 decision to deed over 197.23 feet of Water Street property to Whirlpool Jet Boat Tours and its president, John Kinney, for $1.
Three days prior, Williams filed a second lawsuit wherein his legal team - Gregory P. Photiadis and Elizabeth A. Kraengel of Buffalo law firm Duke, Holzman, Photiadis & Gresens - asserted the Village of Lewiston violated Section 51 of general municipal law and was in violation of the public trust doctrine. The lawsuit claims the 2002 lease violates the easement requirements. It infers trustees illegally granted the lease, which resulted in the "waste of public property."
In court Thursday, Kloch disagreed with that assertion and said the village's action was neither illegal nor fraudulent, thus nullifying the Section 51 statute.
What's more, Kloch said WJBT is an ancillary and seasonal concession and, accordingly, the village did not need the approval of the New York state commissioner of general services when entering into the lease.
Kloch also disagreed with the plaintiff's assertion the lease hinders the public's ability to use the land for recreational purposes. He compared the village's agreement with WJBT to that of the contract between New York City and the ferry operators taking tourists to and from the Statue of Liberty. In both cases, Kloch said, the municipalities entered into an arrangement wherein a private entity provides a mechanism for visitors to take advantage of an attraction or landmark.
"If I follow your logic," Kloch told Kraengel, "(ferry service to the Statue of Liberty is) a public waste."
Kloch said, "I would never have an opportunity to go into the whirlpool without (a jet boat)."
When taking a jet boat tour, the judge said his reaction was, "My God, I'm actually in the whirlpool. I could not believe that."
"Thanks to this enterprise, I was in it," Kloch said.
Furthermore, Kloch said with or without the lease, WJBT would continue to operate. He said it would be egregious if patrons could only board the jet boats from Canada. In situations where passengers are unable to cross the border, "those people would be barred - barred (from visiting the whirlpool)," he said.
Kloch said he was "offended" by the plaintiff's affidavits, wherein parties claimed the jet boats are disrupting fishermen and stealing water. The judge said he knew of fishermen waving to the boats and passengers as they drove by.
Kraengel said the easement usage was the core of Williams' argument, and reaffirmed his contention that the village's agreement is contrary to the idea of public recreation along the waterfront.
After the court session, Kraengel said Williams "is very interested in protecting the public interest and public use (of the land)." She said a private entity in control of the waterfront property in question - and until the year 2042, as stated in the lease - is not in the public's best interest.
Though it appears Williams has an uphill battle ahead of him, Kraengel said her team would keep fighting.
"Our next step is just to get through this motion," she said, adding a dismissal or loss in State Supreme Court may result in an appeal.