New York Lawsuit

On November 20, 2009, William M. Windsor filed a lawsuit in Albany, New York against the State of New York, the Governor of New York, the Attorney General of New York, the New York State Office of the State Comptroller, the  New York State Office of Parks, Recreation and Historic Preservation, Edward J. Rutkowski, Maid of the Mist Corporation, James V. Glynn, and Christopher Glynn.  The lawsuit seeks to void the agreement between the State of New York and Maid of the Mist Corporation.  The lawsuit also seeks $58 million in damages.

STATEMENT OF CLAIMS – ARTICLE 78

371.  Petitioner files an Article 78 Petition, pursuant to Section 163 of the New York State Finance Law and Title B, Article 3, Section 3.09, Subdivisions 2-a and 2-d of the PRHPL, to challenge the State’s issuance of a 40-year 2002 NY License to MOTM.  Petitioner thus seeks immediate declaratory and injunctive relief, asking this Court to declare the 2002 NY License to be unlawful and void, and provide other relief.

372.  Petitioner also files a Verified Complaint seeking declaratory judgment, damages, and other relief.

373.  Petitioner has no adequate remedy at law and no prior application has been made for the relief requested herein.

FIRST CAUSE OF ACTION PURSUANT TO ARTICLE 78

Respondents violated the New York State Parks, Recreation

and Historic Preservation Law (“PRHPL”)

374.  Petitioner repeats and realleges each and every allegation in the proceeding paragraphs as if set forth herein in full.

375.  STATE OF NEW YORK, GEORGE PATAKI, NEW YORK STATE OFFICE OF PARKS RECREATION AND HISTORIC PRESERVATION, BERNADETTE CASTRO, CHRISTOPHER PUSHKARSH, EDWARD J. RUTKOWSKI, NEW YORK STATE OFFICE OF STATE COMPTROLLER, CARL MC CALL, OFFICE OF NEW YORK ATTORNEY GENERAL, and ELIOT L. SPITZER (the “2002 Government Respondents”) were required to enforce and implement all laws duly passed by the New York State Legislature.

376.  The New York State Legislature passed and duly enacted the New York State Parks, Recreation and Historic Preservation Law (“PRHPL”). 

377.  The acts of the 2002 Government Respondents constitute violations of PRHPL, Title B, Article 3, Section 3.09, subdivisions 2-a and 2-d and the regulations promulgated thereunder.  The 2002 Government Respondents granted the 2002 NY License without competitive bids.

378.  The PRHPL imposed purely ministerial, nondiscretionary duties upon the OPRHP and the NYSOSC.  STATE OF NEW YORK, GEORGE PATAKI, NEW YORK STATE OFFICE OF PARKS RECREATION AND HISTORIC PRESERVATION, BERNADETTE CASTRO, CHRISTOPHER PUSHKARSH, EDWARD J. RUTKOWSKI, NEW YORK STATE OFFICE OF STATE COMPTROLLER, and CARL MC CALL, failed to enforce the PRHPL, notwithstanding their duty to do so.

379.  N.Y. C.P.L.R. Article 78 provides a right of action against governmental officers and entities who have “failed to perform a duty enjoined upon [them] by law.” N.Y. C.P.L.R. § 7803(1).

380.  Petitioner is entitled to judgment under N.Y. C.P.L.R. § 7806 ordering the STATE OF NEW YORK, DAVID PATERSON, NEW YORK STATE OFFICE OF PARKS RECREATION AND HISTORIC PRESERVATION, CAROL ASH, NEW YORK STATE OFFICE OF STATE COMPTROLLER, THOMAS DiNAPOLI, OFFICE OF NEW YORK ATTORNEY GENERAL, and ANDREW CUOMO (the “2009 Government Respondents”) to enforce the PRHPL.

381.  This Court must declare the 2002 NY License to be void because PRHPL requires that such contracts be awarded pursuant to competitive bidding.

382.  STATE OF NEW YORK, GEORGE PATAKI, NEW YORK STATE OFFICE OF PARKS RECREATION AND HISTORIC PRESERVATION, BERNADETTE CASTRO, NEW YORK STATE OFFICE OF STATE COMPTROLLER, CARL MC CALL, OFFICE OF NEW YORK ATTORNEY GENERAL, and ELIOT L. SPITZER (the “2002 Government Respondents”) failed to follow lawful contract procedures.

383.  The failure of the 2002 Government Respondents to properly construe, interpret, or determine the applicability of express provisions the NYSFL constitutes the effective nullification of that law, which was intended to be applied broadly for the exclusive benefit of the public, and the failure of the 2002 Government Respondents was an abdication of the statutory duty entrusted to them.

384.  This failure denied Windsor and others the opportunity to bid on and obtain the lucrative contracts for the elevator service and boat service.

385.  This failure has also injured, and will continue to injure, the specific and legally cognizable protected interests of the Petitioner.

386.  As such, the 2002 Government Respondents’ failure should be declared unlawful and invalid as a matter of law.

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