BUFFALO, N.Y. (WIVB) – A lengthy lawsuit over a Canalside project at the old Aud site has hit an unusual delay.
New York State last week got a temporary restraining order from an Acting State Supreme Court Justice that keeps all pre-trial testimony from public view.
The order called for both sides to appear on Aug. 5. In the meantime, DiPizio Construction would have to file a written request to the court before releasing any testimony obtained during pre-trial depositions.
Attorneys for DiPizio have so far interviewed three state officials, including Sam Hoyt, regional president of the state Empire State Development Corporation.
Days before that testimony was taken, state attorneys sought the order arguing that DiPizio planned to give the videotaped depositions to the media.
Rosanne DiPizio, project manager for her family’s company, said she doesn’t understand all of the secrecy.
“It’s a public project,” she said. “We are only interested in the facts on this case and I think the public has a right to know the facts on this case now.”
DiPizio Construction has begun interviewing witnesses in its lawsuits against Erie Canal Harbor Development Corporation and some of the state agency’s key players, like Hoyt and Thomas Dee, president of Erie Canal Harbor Development Corp. Both are named in the defamation lawsuit filed by DiPizio, which has several lawsuits underway to challenge its removal from the project.
“I’m not sure what they don’t want the public to know,” Rosanne DiPizio added.
The current phase of the project, described as the jewel of Canalside, includes replicas of the old Erie Canal Bridges and an ice rink for winter skating. Originally, it was supposed to be finished in November 2012. But the project has been plagued by delays.
DiPizio Construction was fired in July 2013 after the state in a May 8 notice of intent to terminate cited lengthy delays, “deficient work” and failure to perform the work “in a good and workmanlike manner” in accordance with the contract.
That led to the lawsuits with DiPizio claiming it was wrongly pushed off the job and made a scapegoat for design failures. As a result, DiPizio lost its ability to obtain bonding for other public projects, which the company claims has hurt financially.
“DiPizio Construction has suffered to date, and is suffering every single day. Over eight figures. Well over eight figures,” Rosanne DiPizio said.
Erie Canal Harbor Development Corporation recently got a temporary court order preventing the release of pre-trial testimony, including video and audio recordings.
The agency released this statement:
“Erie Canal Harbor Development Corporation requested the Temporary Restraining Order because we believed publication of all deposition testimony, not just that of Sam Hoyt and Tom Dee, should be restricted, allowing this dispute to be decided in Court based on all the relevant, admissible evidence. We strongly believe this dispute should not be tried in the media – based on evidence, including deposition testimony, that the Court has yet to rule on; or based on snippets of evidence that are not placed in proper context. No additional comments regarding this issue will be made until the Court has been allowed to issue its decision.”
When asked if she planned to release the pre-trial depositions to the public, the media, Rosanne DiPizio said, “I don’t know. I have a right to the depositions. I have a right to take the depositions.”
Attorneys for DiPizio and ECHDC are scheduled to appear before Acting State Supreme Court Justice Timothy Walker on Aug. 5.
News 4 Legal Analyst Terry Connors says the court will likely consider the public’s right to know since this involves a publicly funded project. Sealing of what attorneys obtain through discovery is not a common occurrence, he said.
“Where it occurs is where one party gets wind of the fact that another party is trying to use it to their advantage improperly by disseminating information that’s embarrassing, humiliating and designed to do so, or designed to give that party an edge in the litigation,” he said.
Connors said the court system “of civil justice is designed to be open, to be transparent.”
“What’s the interest of the public?” he asked “Is this a matter of public concern that ought to increase the desire on the part of individuals to push this out in the open rather than to hide it?”
In a letter to the judge in the case, an attorney for the state agencies involved writes, “We believe that plaintiff wishes to record the depositions for the sole purpose of distributing the video to the press in order to harass and potentially embarrass defendants.”
Connors said making that point requires “a showing of proof that the other side intends to use it improperly. They want to try to embarrass you. They want to humiliate you.”
But DiPizio Construction argues in court papers that ECHDC and its representatives have made false statements to the media and the public regarding DiPizio’s work on the project.
“Now, when forced to answer under oath, Defendants want the Court to shield the truth from the public,” DiPizio’s attorney wrote in response.
“The courts do not look lightly upon that kind of a claim to shield the general public from this information. They don’t like to close the doors to justice,” Connors added.
In the meantime work continues at the former Aud site.
The Pike Company, a new contractor, was brought in to finish the job months after DiPizio was kicked out. The state claimed the project was woefully behind schedule.
State officials say that there will be skating at the old Aud site by Thanksgiving – although some of the finish work won’t be done until next year.
What began as a $20 million project could end up costing millions more in damages and legal fees if the state loses the legal fight.