A State judge has settled a portion of the legal dispute between the Buffalo’s Public School District and construction firm LPCiminelli. A lawsuit brought by the school district in February alleges LPCiminelli concealed information, and kept excessive profits on a $1.3 billion school renovation and construction project begun in 2003 and completed in 2014.
State Supreme Court Justice Timothy Walker has decided that the firm met its obligation to renovate 48 district schools for a set amount of money. Attorney Daniel Oliverio, Chairman of Hodgson Russ LLP and legal counsel to LPCiminelli, said Walker’s decision “essentially gutted” the school’s claims. He said the decision found no breach of fiduciary duty, no breach of contract, and no basis for claiming excessive profits.
Attorney Carol Heckman, partner with the firm Harter, Secrest & Emery LLP providing outside legal counsel for the school district, said her team has reviewed the decision thoroughly and disagrees with the judge’s analysis.
“We will be appealing the decision. And the other thing that’s very important to note is that there are two remaining claims in the case that are unaffected by the decision, that are still pending, which are significant and which do require disclosure of information to the school district.”
Heckman said there are also two other claims from the lawsuit still in play. The first regards a full accounting of a large portion of money for a construction contingency plan. Heckman said no such accounting has taken place, to date. Oliverio disagrees, and said his firm provided proof that every penny of the contingency fund was spent on construction, and none went to the profit of LPCiminelli.
“The second claim relates to monthly monitoring reports that were filed with the Joint Schools Construction Board, which identified the percentage of minorities and women businesses and workers on the job site. The allegation in that claim is that those reports were false,” said Heckman.
Oliverio said the reports were made by an independent monitor.
“We’ve already demonstrated to the district – since the motions were filed to dismiss and for summary judgement – that, unfortunately, the monitor was using the wrong numbers and was not interpreting the numbers correctly,” said Oliverio. “That issue, for all intents and purposes – although it remains – has been resolved.”
If and when the Heckman and the school district decide to appeal Monday’s decision, Oliverio said it would be months before a decision is made. He also said he’s ready and welcomes the move.
“The district may want to appeal, and it might say that there are two claims still alive. We’re prepared to move for summary judgement right after the first of the year on those two remaining claims because there is really no issue that still exists, and we’ve demonstrated that to the district. So if they want to appeal the other part of the decision, that’s fine. We look forward to it because we believe their appeal will be meritless.”
School Board Member Carl Paladino was among those leading the push for the lawsuit against LPCiminelli. On Monday, Heckman said she had not spoken to him to gather any reaction on the judge’s ruling.
