SCHOHARIE — The estate of one of the victims killed in last year's limousine crash is suing two state agencies it says have denied it public records it seeks as it pursues a civil lawsuit.
The estate of Erin McGowan of Amsterdam has sued the state departments of transportation and motor vehicles in state Supreme Court in Albany County, saying it has illegally been denied access to public records in inspections, registration and repairs on the limousine involved in the Oct. 6, 2018, crash that killed 20 people.
"The DOT and DMV's refusal to disclose basic documentation as to the inspection, repair and registration of the limousine owned by Shahed Hussain, d/b/a Prestige Limousine and Chauffer Services was illegal and improper and must be annulled," the lawsuit states.
At least some of the information denied to the McGowan estate has since been made public as part of criminal court proceedings in Schoharie County, the lawsuit notes, though it still seeks to have a judge rule that the state agencies were wrong to deny the requests.
"It certainly puts an interesting twist on DOT and DMV's refusal to release the information," said Paul Davenport, the Colonie attorney representing the estate in potential civil lawsuits stemming from the crash.
McGowan, along with her husband, Shane -- they were four-month newlyweds -- was among the 17 passengers killed in the crash, in which an aging stretch limousine sped through a stop sign at the intersection of state routes 30 and 30A in Schoharie, then crashed into a small ravine. The crash killed all the passengers, the driver, and two pedestrians in the parking lot of the Apple Barrel Country Store.
Shahed Hussain's son, Nauman, who was operating the company at the time of the crash, is charged with 20 counts each of second-degree manslaughter and criminally negligent homicide, and is awaiting trial in Schoharie County Court. Prosecutors contend that the 2001 Ford Excursion had numerous mechanical issues, including brake problems, and suffered a catastrophic brake failure while coming down a long hill on Route 30.
Prosecutors say Hussain took the vehicle through a DMV inspection process even though the 18-person capacity vehicle should have been subject to more-rigorous DOT bus inspections, and that Hussain was aware the vehicle has failed DOT roadside inspections in March and September 2018.
The McGowan estate sought the records from the two agencies under the state's Freedom of Information Law in June, and was denied by both agencies.The estate subsequently appealed the denials to a higher level within the two agencies, and was again denied by both.
Under the state's Freedom of Information Law, state agency records are presumed to be public unless they fall within specified categories.
Attorneys for the agencies contended that the records fell under an exemption to disclosure allowed for "law enforcement" investigations, because of both state investigations and a separate investigation being done by the National Transportation Safety Board. The NTSB has issued some preliminary findings, but its investigation is on-going.
Norman Kee, a DOT assistant counsel, in an appeal denial letter on Aug. 5, cited the federal investigation and laws governing disclosures from it, although the NTSB is not a law enforcement agency. "The statute's prohibition on releasing information is broad; it covers all information, not just information compiled for law enforcement purposes," Kee wrote.
The DOT has used similar arguments in denying FOIL requests from The Daily Gazette and other news organizations for information related to the crash and the safety record at the intersection where the crash occurred.
The lawsuit says neither agency provided references to any law that specifically exempts the records from disclosure.
Davenport said the information was being requested as possibly useful in a liability lawsuit the McGowan estate has pending against the Hussains and Mavis Discount Tire, whose Saratoga Springs shop did a DMV inspection and other service work on the limousine.
"I'm looking for information for our pending lawsuit against the Hussains and Mavis," Davenport said. "This is part of the discovery process in regard to our pending claims."
A lawsuit against DOT and DMV over their alleged failures to take action before the crash remains a possibility. "We did file a notice of intent that protects our rights [to sue], but that determination hasn't been made yet," Davenport said.
Spokespersons for DOT and DMV said Tuesday that the departments wouldn't comment on pending litigation.