Judge bars disclosure in DiPizio Canalside lawsuits

BUFFALO, N.Y. (WIVB) – A State Supreme Court Justice Tuesday issued an order that bars DiPizio Construction Co. from giving to the media or any third party any information it obtains while preparing its lawsuits against state agencies and officials in the long delayed Canalside project.

Acting Supreme Court Justice Timothy J. Walker’s order bars disclosure “of any discovery…to any third party or non-party.”

RELATED | News 4 Investigates disclosed last week that the state was seeking to keep pre-trial information from the public

In his order, Walker said the media “plays a vital role” in informing the public, which may have an interest in this public works project. He insisted that the public’s right to know “will not be subverted, but merely delayed until the trial begins.”

The order was sought by attorneys for Erie Canal Harbor Development Corporation on behalf of its president, Thomas Dee, and Sam Hoyt, regional president of the state Empire State Development Corporation.

DiPizio’s lawsuits claim the Cheektowaga firm was wrongly kicked off the $20 million project to build bridges, canals and an ice rink on a portion of the former Memorial Aud site at Canalside. DiPizio has sued Hoyt and Dee claiming that their public comments about the company’s failure to meet deadlines has nearly ruined the family owned business. The project was originally supposed to be finished by November 2012.

While Gov. Andrew Cuomo’s name was not mentioned, his November re-election was referenced in the courtroom.

Michael Appelbaum, the state’s attorney in the defamation lawsuit, told Justice Walker that DiPizio Construction planned to use information it obtains in pre-trial testimony to embarrass state officials in an election year. Hoyt recently gave pre-trial testimony that was videotaped. Dee was supposed to give testimony on Monday but it was delayed due to illness.

Appelbaum claimed that the plan to release pre-trial testimony from state officials was disclosed by DiPizio attorneys. He said DiPizio planned to use it to “gain an unfair advantage.”

“We are not trying to keep anything secret,” Appelbaum said. “We are not trying to close the doors of justice.”

“Even public officials are entitled to fundamental fairness,” he added.

In court arguments, attorneys for the state officials and agencies said the taking of pre-trial testimony, known as depositions, is not open to the public. To do so would open the possibility that information is made public that would not be allowed into testimony by a trial judge. They also argued that release of the pre-trial information could taint a jury pool.

Michael Ferdman, attorney for DiPizio, urged Walker to dismiss the unfair advantage claim.

“These are public officials,” he said, and they should be held accountable for “a wrongful termination” in which “a small company is fundamentally put out of business.”

John Bartolomei, attorney for DiPizio in the defamation cases, said it was “pre-mature” and “speculative” for the state to seek protection since there has been no move to release any pre-trial testimony.

“There’s been a terrible injury to the public today,” Rosanne DiPizio, the company’s project manager, said of Walker’s order. She said the public will be forced to vote in November not knowing the facts since the case won’t come to trial until next year.

“The public will never get to know what happened, what didn’t happen and the cost to the taxpayer until after the election.”

DiPizio said voters in the governor’s race should have this information because Cuomo appointed Hoyt who hired others at the state agency.

“What happened here today isn’t right,” said DiPizio. “What do they have to hide?”

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