The family of a Westfield man killed in an accident at the Chautauqua County Landfill is suing the County.

The lawsuit filed in Chautauqua County State Supreme Court Monday seeks financial damages following the death of 56-year old Scott Deming Sr. on August 3, 2020, saying the county was negligent in ensuring the landfill was a safe place to work and was not in compliance with safety law.

Deming was standing behind a large pile of garbage he had just dumped from his garbage truck at the Landfill in Ellery when he was hit and killed by a bulldozer that was pushing the garbage into a pit.

Chautauqua County, the County Department of Public Facilities, and the Chautauqua County Landfill are all named in the lawsuit.

Image from Fredoniafire.org

MAYVILLE – The village of Fredonia and its mayor have been named in a lawsuit filed by the village’s firefighters’ union, due to the village not filling three vacant lieutenant positions within the Fredonia Fire Department.

In a civil complaint filed Wednesday in Chautauqua County Supreme Court, the Fredonia Professional Fire Fighters Association, Local 2931 – through its attorney Charles DeAngelo from Fessenden, Laumer and DeAngelo – states that rank-and-file firefighters have had to serve as fire lieutenants within the department, dating back to Aug. 1, 2020. In the complaint, the union cites state law (New York Civil Service Law §61) that prohibits rank-and-file fire fighters from serving “out of title” and performing the duties of a lieutenant, unless they have taken and passed the state civil service exam for that position. New York requires a separate Civil Service Exam for fire lieutenants, beyond the exam required for rank-and-file firefighters.

According to the union, the village has budgeted for three fire lieutenant positions in its 2020-21 spending plan, but has failed to act on filling any of those vacancies, leaving the fire department with just one lieutenant in the department. The union also states that it has urged the village to fill the lieutenant vacancies on several occasions but that has yet to take place, even after the village officials were informed of impending litigation if action was not taken.

Besides not having a fire lieutenant on duty for various shifts since August 1, the union also states that there were two different fires that took place in the village, where the fire chief was unavailable and there was no lieutenant on duty. As a result, a senior firefighter had to step forward and assume command during the response.

One fire occurred at a residence on Aug. 25, where there were reports of multiple people trapped in the house. A senior Firefighter – Timothy Winters – had to command the situation for nearly 15 minutes until the chief finally arrived on the scene. During that time, Winters called for a second alarm and supervised all firefighters on the scene during the initial search of the house and suppression of the fire, performances that are required to be handled by a lieutenant or the fire chief.

“Due to a Fire Lieutenant not being scheduled on the shift, the senior Firefighter had to act as a Fire Lieutenant in that all supervisory functions and command decisions were required to be performed by him in the absence of a Lieutenant,” the lawsuit claims.

A second fire occurred just three days later at the Econo Lodge Hotel at 10455 Bennett Road, which also required a firefighter to assume command.

“Due to no Lieutenant being scheduled, the senior Firefighter Brent Johnson was the ranking Firefighter on shift, causing him to assume the responsibilities of the Fire Lieutenant who was not scheduled that day,” the complaint states.

 Fire Chief Ryan Walker was not regularly scheduled after 3:00 p.m. on Fridays, but also was not at the Fire Station at any point during that day. At 6:25 p.m., firefighters received the alarm of fire and arrived approximately 6 minutes later. Firefighter Johnson had to assume the role of Incident Command in the absence of a scheduled officer. Due to lack of available Fire Department manpower and the fire scene comprising a large and heavily populated building, Firefighter Johnson called for a second alarm and supervised all Firefighters on the scene during the initial search of the room and suppression of the fire. It was not until about 6:40 p.m. that Chief Walker arrived on the scene and command of the scene was transferred to him for the duration of the incident. Due to a Lieutenant not being scheduled for the shift, the senior Firefighter had to act as Fire Lieutenant in that all supervisor functions were required to be performed by him and in the absence of the Fire Chief, all command decisions were also made through him.”

The union argues that due to the village not filling the vacancies, firefighters are being exposed to grave risks and village taxpayers are also being exposed to greater losses.

It is asking the court to make an Article 78 order that the village no longer appoints and assigns rank-and-file firefighters to serve out-of-title as acting lieutenants and to instead fill the vacant positions.  It is also seeking relief, including but not limited to an award of back pay and benefits to all Firefighters for all time served out-of-title as Acting Lieutenants, together with attorney fees, costs, and disbursements of this action.

The Town of Ellery and the Chautauqua Lake Partnership organization are suing the New York State Department of Environmental Conservation (NYSDEC). They claim the DEC wrongfully placed limits on the areas of the lake where the herbicide ProcellaCOR can be applied this past summer – specifically in the Town of Ellery.

• READ THE FULL PETITION

The two plaintiffs also claim the current herbicide that is being used is safe and effective, and also say that the areas of the lake recently treated appear much better than other spots that were not allowed to be treated by the DEC. As a result, they are request the court provide the following judgement in their favor:

1. Annulling the June 17, 2020 and June 29, 2020 determinations on the grounds that they are arbitrary and capricious, irrational, and lacking in substantial evidence;
2. Declaring that the absence of adverse public health and environmental effects of ProcellaCOR found in the NYSDEC’s registration preempts or precludes the NYSDEC from denying the Town’s permit application in whole or in part based on such alleged effects; and,
3. 3. Remanding to the NYSDEC with instructions to issue to the Town of Ellery any and all permits and approvals necessary to implement the goals of the 2018 FSEIS to the fullest extent practicable, with due and adequate consideration of the agency’s mission, purpose, and the public interest.

Eddie Sundquist

JAMESTOWN – The city of Jamestown will move forward and take its ongoing arbitration battle with its police union to the state’s highest court.

During a recent interview with WRFA, Jamestown Mayor Eddie Sundquist confirmed that the city has decided to move its appeal of a 2018 split decision Compulsory Interest Arbitration Ruling to the New York State Court of Appeals.

This after the State 4th Appellate Division in Rochester released on a unanimous ruling on June 12 that upheld a 2019 State Supreme Court Decision allowing the arbitration ruling to stand.

The 2018 arbitration ruling involved the collective bargaining agreement between the city and the Jamestown Kendell Club police union. Among other things, the ruling called for officers in the union to receive a retroactive 2% salary increase for both 2016 and 2017.

• READ COMPLETE 44-PAGE ARBITRATION RULING

Upon its release, city officials – led at the time by former mayor Sam Teresi – felt the arbitration ruling failed to take into full consideration the financial challenges facing Jamestown. State law indicated that the Arbitration Panel was to place a 70% weighting factor on the city’s financial position and ability to pay for any increase in salary. The city contends the arbitrators didn’t place enough focus on that aspect of state law when ruling in favor of a pay raise for the union members.

Sundquist said the city notified the police union this week that it would seek a judgement from the state’s highest court. He added that such action would require approval to do so from the court.

“If it wasn’t a unanimous decision, we would be able to appeal by right, which means the Court of Appeals would take that case and hear it,” explained Sundquist. “Since that is not the case. Since we had a concurring decision from the Appellate Division, we will have to ask permission from the Court of Appeals to hear that case, as it’s a portion of the law that may not have been yet interpreted. There is always the risk that the Court of Appeals may not want to take the case, so we are kind of going with that process to see if they will accept it.”

Sundquist also said that last year the city council approved a resolution to challenge the local Supreme Court ruling on the matter, and that resolution included taking the case to the Court of Appeals if it was not overturned in the Appellate Division. As a result, no additional legislative action is required by the city council because no new costs are being added.

The mayor also said that in the meantime, the city is continuing to negotiate with the union.

“We are still working actively with the police union to try to negotiate a deal and try to come to an understanding, as we have many years left with that contract that are still un-negotiated. So even though we are actively moving forward with that court case, we are are still actively trying to resolve this issue at the same time,” Sundquist said.

If the arbitration decision stands, the city will have to pay an estimated $800,000 in back wages to the members of the union during the time period that is covered. In addition, a similar back payment would also likely have to be made to the fire fighters union, which also never settled a contract for 2016 and 2017, but opted to wait until the police arbitration case plays out before possibly pursuing their own arbitration case.

The Albany-based law firm of Bond, Schoeneck & King is representing the city in the legal dispute, while the Jamestown law firm of Fessenden, Laumer & DeAngelo is representing the police union. The cost of the court proceedings for the city – including taking it to the State Court of Appeals – has totaled $50,000.

The complete interview with mayor Sundquist – which covers a variety of topics and issues – will be broadcast on WRFA this Thursday at 5 p.m. on our Community Matters program.

On Friday, the Supreme Court of the State of New York Appellate Division: Fourth Judicial Department released its decision that has at least an $840,000 impact to the city of Jamestown’s bottom line, all though the final financial implications could be much higher.

The latest decision is part of an ongoing legal battle involving the Jamestown Kendall Club’s collective bargaining agreement covering the years 2016 and 2017.

The long-awaited decision is the result of the Jamestown City Council voting in May 2019 to appeal a State Supreme Court decision that upheld an October 2018 arbitration ruling on the 2016-17 collective bargaining agreement (CBA) between the city and the Kendall Club. Among other things, that ruling provided a retroactive 2 percent increase in salaries for each of those two years for police officers.

In November 2018 the Jamestown City Council voted 7 to 1 in favor of challenging the initial arbitration ruling. State law requires an arbitration decision involving the police union to place a weighting factor of 70 percent toward the ability of a fiscally challenged municipality like Jamestown to pay. In challenging the arbitration process, the city felt it would be a violation of its fiduciary duty to comply the arbitration award, basing its argument on the award being in violation of the 70 percent state statute. The city’s legal argument was that the arbitration decision was “arbitrary and capricious” and did not take into account the serious financial challenges gripping the city.

The council’s decision to appeal to the Appellate Division came after Chautauqua County Supreme Court judge James Dillon ruled in April 2019 that that arbitration panel ruling on the matter would stand.

While still in office, former Jamestown mayor Sam Teresi had said the bottom-line impact would cost the city an excess of over $800,000 if the arbitration ruling where allowed to stand.

“To allow that decision to stand will have an $840,000 unbudgeted impact on the 2019 budget. And that impact is only for retroactive raises for 2016 and 2017. If that decision is allowed to stand, it could lay the groundwork for a similar retroactive payment with the fire union moving forward. And as well that $840,000 impact for the police union alone doesn’t take into account raises that might be received for 2018, 2019, and 2020 moving forward,” Teresi explained in March 2019.

The city does have an option to file yet another appeal and take the case to the New York Court of Appeals – the highest court in the state – if the council so chooses.

The estate of Wilfredo Colon-Rodriguez filed the lawsuit Tuesday against 74 year old Marylou Johnson – also of Busti – in State Supreme Court in Chautauqua County.

Johnson was charged with second degree manslaughter and later convicted after it was determined she had struck Colon-Rodriguez with a vehicle on Swanson Hill Rd. in the Town of Randolph after it had gotten stuck in the mud on the night of April 15, 2018. According to police, Colon-Rodriguez was working to free the vehicle when Johnson ran him over and then fled the scene. It was later determined the two had been returning to their homes in Busti after drinking at a friend’s home in Randolph, along with other locations.

In September, Johnson was sentenced to 2 to 6 years in state prison following a conviction on a second-degree manslaughter.

The civil lawsuit is seeking an unspecified amount in damages.

The lawsuit, which was filed on Tuesday by the law firm Westfall Law PLLC, lists over a hundred individuals from 65 different residences in the Fredonia, Cassadaga and Forestville areas who are suing the developers of the Arkwright Summit Wind Farm. The project is located in the areas of Arkwright and Pomfret, and includes approximately 47 turbines that stand some 420 feet tall and were erected in 2018.

• READ THE FULL CIVIL COMPLAINT

The plaintiffs claim that developers built the project too close to their homes and as a result, have created a number of hazards and adverse health effects, including include sleep disturbance, annoyance, headaches, dizziness, vertigo, nausea, motion sickness, bodily sensations, fatigue, stress, depression, memory deficits, inability to concentrate, anxiety and an overall reduced quality of life. The complaint says that these effects are largely due to the shadow flicker and loud noise that comes from the turbines when they are in motion.

The complaint also says that those who’ve attempted to sell their homes and move away from the Arkwright wind farm are often unable to do so because the value of land near turbines plummets.

The group is suing the various parties involved with the development and construction of the project on nine causes of action that include negligence, creating a private nuisance and trespass of real property. They are demanding judgment against the Defendants on each of
the causes of action in an amount to be determined by this Court.

The family filed the lawsuit in State Supreme Court in Mayville last Friday, naming the Boy Scouts of America Inc., Allegheny Highlands Council Inc., and Donald Shriver of Lakewood as the defendants.

According to the lawsuit, the plaintiff in the case is the alleged victim’s parent. The case states the victim began participating in the local scouting program when he was 6-years-old. In August 2017, the child – who was 12 at the time – joined other members of the Lakewood troop for a weekend retreat at Camp Chickasaw in Meadville, Pa. Shriver was responsible for transporting the youth to the camp and serving as a chaperone. At the Camp Chickasaw, the lawsuit claims the youth was told to sleep in a lean-to or shack with Shriver and that was when the sexual assault occurred.

In February it was announced that Shriver was charged with third-degree felony charges of corruption of minors and unlawful contact with minor in a Pennsylvania court and in June he was sentenced to 11 to 24 months and five years probation. He was also sentenced to pay a $150 fine, court costs and have no contact with minor children unless they are biologically related to him.

The largest disputed assessment comes from the owner of the Hampton Inn, which is situated at the city line on N. Main Street. In that case, owner Sandalwood Hotels LLC is asking the court for a $2.28 million reduction on the hotel’s $4.1 million property tax assessment.

In a separate case involving a hotel, Star Hotels – the owner of the LaQuinta Inn on West Third Street – is asking to have the assessment on the hotel building reduced by $670,000 – bringing the new assessment down to $1.57 million.
Meanwhile, Bottling Group (Pepsi Cola Bottling) at 2224 Washington St. is requesting a $725,000 reduction on its assessment, bringing it down from $925,000 to $200,000.

And an LLC known as Budget Rental Units – which owns various rental properties in the city – is asking for a total reduction of $430,00 in two separate filings involving five pieces of property around the city.

For the city 2019 budget, the total taxable property assessment for the city of Jamestown is $671,588,000, with the property tax revenue coming in at $16,012,000 – based on a tax rate of $23.85 per thousand.  If the court were to rule in favor of each of the plaintiffs and give them a new assessment at the amount each is asking for, the lost tax revenue would be an estimated $97,000.

On Monday night the Jamestown City Council voted 8 to 1 in favor of appealing a recent State Supreme Court Decision that upheld an arbitration ruling on the 2016-17 contract with the Jamestown Kendall Club PBA and which provided a retroactive 2 percent increase for each of those two years for police officers. City Councilman Andrew Liuzzo (R-At Large) made the only “no” vote for moving forward on the appeal. He also voted “no” on initially challenging the arbitration decision in November 2018.

The city had up to 30 days to decide on whether or not it would challenge the Chautauqua County Supreme Court judge James Dillon decision after it was officially filed by the court on April 2.

• READ JUDGE DILLON’S DECISION

City officials have said that the city can’t afford the salary increase, saying it will have an impact not only on any reserve funding that has been built up, but also on all future expenses for the city. In addition they say the increase to the police union will also likely be applied to the 2016-17 fire union contract, which is also still unsettled and has been awaiting the outcome of the police contract issue before being resolved. Jamestown mayor Sam Teresi has said the bottom line impact would approach an excess of over $800,000 on the city after it was all said and done if the arbitration ruling where allowed to stand.

“To allow that decision to stand will have an $840,000 unbudgeted impact on the 2019 budget. And that impact is only for retroactive raises for 2016 and 2017. If that decision is allowed to stand, it could lay the groundwork for a similar retroactive payment with the fire union moving forward. And as well that $840,000 impact for the police union alone doesn’t take into account raises that might be received for 2018, 2019, and 2020 moving forward,” Teresi explained in March.

As a result of the city council’s action on Monday night the matter will now go before the Supreme Court Appellate Division, Fourth Department in Rochester.

The council also approved paying an additional $25,000 in legal fees to Bond, Schoeneck, and King to handle the Appellate Division case.