Acting New York State Supreme Court Judge Patrick Falvey recently heard oral arguments on a motion to dismiss a lawsuit over the proposed Lago Resort & Casino in Tyre, Seneca County, New York. The motion to dismiss was brought by the town of Tyre and Rochester-based Wilmorite, the company hoping to build the proposed resort, which asked the judge to dismiss the lawsuit brought against the town and Wilmorite by members of the anti-casino group Casino Free Tyre. Their lawsuit claims the town violated the State Environmental Quality Review Act as it considered the 5 million casino project from December 2013 through final approval in June 2014. Casino Free Tyre has filed at least three unsuccessful lawsuits over the casino.
Representing Tyre and the town board, attorney Thomas Smith of the Bond, Schoeneck & King law firm, said, “The legal doctrine of res judicata applies in this case. They should be barred from continuing to raise issues that have been dealt with in prior proceedings before this court. They can’t just keep coming back with new lawyers and new theories they have thought up. Those issues have already been rejected by this court.” Res judicata is a principle that a matter may not be re-litigated by the same parties once it has been judged on the merits.
Smith noted adding Tyre resident Dagmar Nearpass as a plaintiff does not change the issues already decided and justifies having the lawsuit dismissed. Casino Free Tyre said the interests of Nearpass were not represented in prior litigation. Said Smith, “She’s an active member of Casino Free Tyre. She’s aware of the facts and has been following. She could have joined if she wanted in. Regardless, her interests have been represented, despite not being a plaintiff in prior litigation.”
Smith said by establishing a Planned Unit Development district in the zoning code, the town acted properly. In addition, the town board did the proper review. He noted the town did not change its zoning code, as the record will prove.
Representing Wilmorite and Whitetail 414LLC, attorney John Mancuso of the Harris Beach law firm, reaffirmed Smith’s arguments, noting the res judicata doctrine should ban the group from raising the same issues again.
“The issues brought up in this latest lawsuit have already been adjudicated. There are no new facts here. It’s the same transaction the court has already dismissed,’’ Mancuso said.
Representing the plaintiffs, attorney Daniel Spitzer of the Hodgson Russ law firm of Buffalo, said the motion to dismiss should be rejected “because there are a lot of facts in dispute. This is not a motion for summary judgment in which the facts are in agreement,’’ he said. Among other issues, he said Nearpass has the right to bring the lawsuit, and that the casino project violates the town comprehensive plan of 2013 “in 25 ways.’’ and that needs to be explored at trial, which could not be done if the case is dismissed.
The state selected the Lago casino-resort proposal as one of the first three state-licensed casinos, along with others in the Catskills and Schenectady. The state gaming commission still is conducting background checks and has not yet awarded licenses.
In Schenectady, Rivers Casino developer Rush Street Gaming has had a few questions lately, mostly at the hands of residents, who have recently voiced some concerns about the casino’s design.
Initially, the design of the casino was sleek and modern, a thing of beauty, that was used to sway people in favor of the casino obtaining a license. Now, a new modest design has been rendered, and locals aren’t too thrilled. Some think that the new design is a way for the developers to save some money, while others simply feel let down.
Project manager Mike Levin feels the new design just fits better with the lines of the city, but is willing to compromise. “And I think based on the reaction from the community, again, the pendulum went from extremely modern to historic, and we’re going to try to bring it back, the pendulum, somewhere. Balance the two,” he said.
Levin said designers will begin right away on changes, but may take up to two weeks to finish. Another complaint from residents is about an 80-foot sign for the casino, but the designers are not willing to budge on that one. Perhaps the main concern from residents comes from how the casino plans on handling problem gambling.
Rush Street’s Zalletta Wyatt said that problem gambling brochures would be handed out to players while the staff is trained to recognize signs of the problem gambling. Wyatt also said that self-restriction is in place, in which players can restrict credit, check cashing, and their own limits.
Gambling laws in New York require casinos to go the extra mile to help prevent problem gambling. “We don’t want to go down the wrong path,” Wyatt said.
