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Power authority asks to move Irene trials

Attorneys: Impartial jury impossible in Schoharie County because of damage

Thursday, November 7, 2013
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The Middleburgh High School gym sustained severe damage as a result of flooding from Tropical Storm Irene.
The Middleburgh High School gym sustained severe damage as a result of flooding from Tropical Storm Irene.

— Lawyers defending the New York Power Authority from post-Irene lawsuits are asking to move cases out of Schoharie County, contending it would be tough to find an impartial jury there.

Civil actions filed in the aftermath of the 2011 tropical storm allege the NYPA failed to properly maintain and operate its hydroelectric facility on the Schoharie Creek before flooding wiped out several neighborhoods.

Schoharie County, the Middleburgh Central School District, the towns of Schoharie, Blenheim, Esperance, Fulton and Middleburgh and the villages of Esperance, Schoharie and Middleburgh all filed a lawsuit in 2012.

Also filing actions involving private properties were Nickerson Park Campground in Gilboa and Parcels Plus LLC, John R. Seebold, Yon Suk Seebold, Floyd A. Guernsey and the FA Guernsey & Co. Inc., all of Schoharie.

The combined actions, seeking more than $100 million in damages from NYPA, allege the authority was negligent in its operation and maintenance of the Blenheim-Gilboa Pumped Storage Facility in southern Schoharie County.

Motions filed last month by NYPA attorneys ask all cases be handled simultaneously for discovery purposes — and if a trial becomes necessary, they want it held in Columbia County.

Along with the actions against NYPA, there are two other major lawsuits filed in the wake of the disaster:

• Parcels Plus LLC., John R. Seebold, Yon Suk Seebold, Floyd A. Guernsey and the FA Guernsey & Co. Inc. filed a state Supreme Court lawsuit against the New York City Department of Environmental Protection. The DEP manages the Gilboa Dam, which holds back the Schoharie Reservoir, one of several that supply drinking water to residents in New York City.

That lawsuit contends the DEP didn’t adequately maintain, regulate or control the massive runoff that spilled over the dam in August 2011.

John R. Seebold, an attorney representing himself and the other property owners, did not return messages seeking comment last week and this week.

• Nearly 60 property owners in the Schenectady County hamlet of Rotterdam Junction filed a lawsuit against the New York State Canal Corp.

That suit, filed in the state Court of Claims, alleges the Canal Corp. failed to properly maintain and control the canal system’s locks so massive rainfall could drain out of the watershed.

In court papers filed in state Supreme Court in Schoharie County, NYPA attorneys argue most Schoharie County residents who might be picked for a jury are still reeling from the biggest nightmare to hit the region in decades.

NYPA hired the Siena Research Institute at Siena College to poll Schoharie County residents about their knowledge and experience with Hurricane Irene and its impact, if any, on their lives.

“The survey results clearly show that the storm’s extensive impact on the potential jury pool creates a strong possibility that even those who believe they can set aside their views will inevitably bring into the jury room personal experiences from the storm,” NYPA’s attorneys state in the motion.

The Albany law firm of Whiteman, Osterman & Hanna LLP is defending NYPA in the case. Attorney Margaret J. Gillis could not be reached for comment Thursday.

The Siena Research Institute said a total of 719 Schoharie County residents were questioned in March as part of the survey.

The survey examines the impact Tropical Storm Irene had and still has on the Schoharie County populace. More than half of those questioned either suffered damage themselves or have a relative or close friend whose home, business or possessions were damaged.

Eighty-five percent of these people identified damage in excess of $5,000 — and the bulk of them are still dealing with the mess.

“A large majority of those with knowledge of damage to family/friends, say that the damage suffered by those family/friends has not been made whole at this time with 64 percent of those with family/friends having experienced damage saying it has not been fully repaired/replaced and 32 percent saying that it has,” the Siena affidavit states.

The survey states the storm’s impact was clearly widespread — 75 percent of those questioned both lived in the county at the time of the disaster and had family or friends living in the county.

“Thus, the survey confirmed what common sense predicted: that the overwhelming majority of Schoharie County residents have such extensive experience with the storm and storm damage that there is a strong possibility that a fair trial cannot be had in [Schoharie County],” lawyers for the NYPA state in the filing.

NYPA also commissioned another research firm that determined Columbia County, situated south of Albany County along the Hudson River, is demographically similar enough to Schoharie County to serve as a trial venue.

The attorney representing Schoharie County, the school district and other municipalities, Joel M. Howard III of the Albany law firm of Couch White, declined to comment on the case.

According to the office of state Supreme Court Justice Eugene P. Devine, a Nov. 22 calendar date was set for the motion requesting a change of venue.

 
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