Niagara Falls Redevelopment plans to appeal part of a State Supreme Court justice’s decision in a lawsuit the company filed after waiting more than two years for the city to fulfill a Freedom of Information Law request seeking Centennial Park design documents.
Records on file with the Niagara County Clerk’s Office show attorneys representing NFR have filed a notice of intent to appeal Supreme Court Justice Frank Caruso’s recent ruling that the company had the right to “full disclosure” of materials responsive to its Feb. 10, 2023, FOIL request, which sought, in part, “all documents and communications” between the city and Centennial Park’s lead designer, CJS Architects of Buffalo.
Records show NFR wants the Appellate Division of the Supreme Court of New York, Fourth Judicial Department, to review Caruso’s finding that the city followed all “lawful procedures” while conducting a search for documents responsive to the FOIL request. The company also maintains, contrary to Caruso’s ruling, that it is entitled to reimbursement by the city for legal expenses stemming from the lawsuit.
NFR spokesperson James Haggerty said the company took the city to court over its document request for two reasons — to compel Mayor Robert Restaino’s administration to comply with FOI Law and to obtain more information about the early stages of design work for Centennial Park, a project the mayor wants to build on 10 acres of land considered for years to be fully owned by NFR.
“There has been so much stonewalling and outright misinformation spread by the city over the past three years regarding these issues that you can hardly blame NFR for wanting to see the facts and the truth,” Haggerty said. “Every member of the public — every organization, every newspaper, and every individual — is entitled to see public documents that show the facts. It’s not up to the mayor or some other government official to decide what we are entitled to see and what they can keep hidden.”
We further think it’s sad that the only way to get information, transparency, and candor out of this administration is to file a lawsuit to force the city to comply with what it is legally required to do in the first place,” he added. “It is a waste of time and a waste of money — money that could be spent serving the people of Niagara Falls.”
In its lawsuit, NFR contends it received a response to its FOIL from the city clerk’s office 13 days after it was filed and that six updates requested from the company’s legal counsel between March and August 2023 went unanswered.
In a written response dated Oct. 31, 2024, NFR says City Account Clerk Deborah Stempien indicated that, following a “diligent search,” no documents “responsive” to the company’s request were found in the clerk’s office.
NFR filed an appeal on Nov. 13, 2024, receiving a response two weeks later from acting corporation counsel Tom DeBoy, who cited a lack of communication and personnel changes in the clerk’s office as contributing factors to what he conceded was a “long delay” in the city’s initial response.
DeBoy also denied NFR’s appeal for additional information, indicating that he directed City Clerk Elizabeth Eaton to conduct another search and she reached the same conclusion as Stempien — the clerk’s office did not have any information related to NFR’s request.
“The clerk’s office has no documents and communications between the city and CJS Architects concerning the Centennial Park project,” DeBoy wrote.
Dan Spitzer, an attorney from the city’s private law firm, Hodgson Russ, said in a response to NFR’s lawsuit that part of the delay in the administration’s response stemmed from an issue with the company’s original FOIL request, which sought information related to a Dec. 22, 2022, Niagara Falls City Council meeting that never took place. As Spitzer noted in his response on behalf of the city, the date in question actually involved a Community Development department public hearing on a proposal to borrow federal funds for Centennial Park land acquisition, not a council meeting.
While the clerk’s office initially found no responsive records, Haggerty said the administration has since turned over 405 pages of CJS-related materials, including 369 pages sent after NFR filed its lawsuit and 36 additional pages that arrived on Aug. 8.
“All of these were received after NFR had to file an Article 78 action to force the city to adhere to its legal requirements under the Freedom of Information Law,” Haggerty said. “This was more than two years after the initial FOIL request was made — and after NFR had first been told by the city that no documents existed.”
NFR has not shared the contents of the 400-plus pages of CJS materials.
Court records on file with the Niagara County Clerk’s Office include minutes and a vote tally from the Sept. 30, 2020, meeting where Niagara Falls lawmakers unanimously agreed to pay $15,000 to CJS for “planning and recommendations for entertainment attractions throughout the City of Niagara Falls.”
The available court documents also include a copy of the April 10, 2020, proposal from CJS to the city in which the company indicates that it would “work closely to collaborate with stakeholders” in the Falls to develop what’s described as “an overall planning strategy for the Niagara Falls Gateway Project.” The proposal bills the project as a “signature gateway design” at the intersection of John Daly Boulevard and Niagara Street that would “provide a sense of arrival” into the city’s downtown area.
The company’s proposal also calls for the creation of “imagery and design concepts” for a multi-purpose recreational facility “in the area” of John Daly Boulevard and Niagara Street, with the facility to include a 5,000- to 6,000-seat hockey and skating venue and additional recreation opportunities, including soccer, volleyball and other athletic activities.
Caruso’s decision in NFR’s FOIL lawsuit comes as the city continues to advance its efforts to acquire property long believed to be owned by NFR off John B. Daly Boulevard at the intersection of 10th and Falls streets for the development of Centennial Park.
The city has filed a petition in New York State Supreme Court to force Blue Apple Properties, a subsidiary of Niagara Falls Redevelopment (NFR), to turn over the deed to roughly 4.7 acres of South End property to be used for the proposed Centennial Park project.
The Falls was awarded the property as part of a lengthy eminent domain proceeding against Blue Apple and NFR. The petition indicates the city is offering Blue Apple $4.029 million for the property, which is described as “the highest amount of any appraisal obtained by (the city).”
The Gazette has previously reported that the city’s purchase offer is more than $2.5 million higher than the $1.436 million the company paid for the land roughly 20 years ago. Niagara Falls Mayor Robert Restaino has said the city’s payment offer was “tendered” to Blue Apple in early July and the NFR subsidiary has rejected that offer.
The parcel represents just under half of the 10 to 12 acres of South End land that is subject to the city’s eminent domain proceeding against NFR.
The remaining 5 acres of NFR land being sought for Centennial Park is not subject to the new court filing. It is being contested in a separate “quiet title” court action where the city claims land that was once the former 10th Street Park was never legally transferred to NFR’s ownership as part of a deal in 2003-2004 between NFR and former Falls mayors Irene Elia and Vince Anello.
The city is contending in court that NFR never completed the process of taking control of the parkland by gaining approval of the property transfer from the New York State Legislature.
The matter is scheduled for a hearing before State Supreme Court Justice Frank Sedita on Oct. 2. If the city’s request is granted, it would immediately take control of the contested property while negotiations over a final payment price could continue.
