Source: Buffalo News, September 20, 2012
Posted on: http://envfpn.advisen.com
The City of Niagara Falls’ effort to avoid facing a new Love Canal lawsuit has been rejected by Niagara County Judge Matthew J. Murphy III.
In a seven-page opinion this week, Murphy denied the city’s motion seeking dismissal of the allegations that it faced in the $113.6 million case brought by three families who contend that their health was affected by a sewer repair project on Colvin Boulevard in January 2011.
They include Joann Abbo-Bradley, of 90th Street, and her three children; Zachary and Melanie Herr, of 93rd Street, and their two children; and Nathan and Elena Korson and their son, Logan, who formerly lived on 92nd Street but now live in New Cumberland, Pa.
The Korsons say Logan was born with clubfeet and heart defects. Elena Korson was pregnant at the time of the botched sewer repair.
The pipe leaked chemicals that seemed to be of the same type as those buried in the Love Canal containment structure a short distance away. The plaintiffs assert that the 70-acre containment structure is leaking, an allegation denied by the state Department of Environmental Conservation.
The DEC has concluded that the Colvin sewer line between 96th and 97th streets has a lower elevation than the other recently repaired sewers in the neighborhood.
Thus, the agency says in an analysis on its website, sewer-cleaning operations in the mid-1980s did not move the toxic waste from the original 1970s Love Canal disaster out of that section of the pipe.
The city said the case should be dismissed because the plaintiffs failed to show up for a mandatory hearing and because, in 2003, the city turned over all its water and sewer infrastructure to the quasi-independent Niagara Falls Water Board, which also is a defendant in the case.
Murphy rejected both arguments.
The judge said the failure to appear at the July 26, 2011, hearing resulted from confusion because the plaintiffs were changing attorneys at the time. He said he didn’t think the families ever heard about the hearing date the city had chosen.
Murphy ordered that hearing to be held within the next 60 days.
As for the contract with the Water Board, Murphy said that it offers no defense to the type of case the plaintiffs are making, although he said the city could again seek a victory short of trial by filing a motion for summary judgment.
Besides the city and the Water Board, other defendants are Conestoga-Rovers & Associates and Glenn Springs Holdings, the companies hired to monitor the Love Canal containment area.
Niagara County also was named in the original suit, but it was let out of the case in August after showing that the county Sewer District owns no lines within Niagara Falls.
“We’ll continue our investigation and move forward with the lawsuit against Niagara Falls and the rest of the defendants. The discovery process is still in an early stage,” plaintiffs’ co-counsel Christen Civiletto Morris said in an email to The Buffalo News. She and Richard J. Lippes are representing the families.
Niagara Falls Assistant Corporation Counsel Douglas A. Janese Jr. could not be reached to comment Wednesday.