Italy, N.Y. – The town of Italy can’t afford to pay the law firm that has been representing it in a suit filed by Ecogen LLC, so the firm – Harter, Secrest & Emery – is being relieved by Judge John J. Ark.
Ark spent nearly two hours in private sessions with attorneys for both sides of the lawsuit after hearing comments in a 45 minute courtroom session Sept. 8.
When he returned to the courtroom to announce his decision, Ark said Harter, Secrest & Emery will be responsible for answering 45 survey questions on behalf of Italy that he sent to the town, Ecogen and the Finger Lakes Preservation Association following up to the town’s motion to dismiss the lawsuit. Once those questions are answered, the town will be without legal representation in the case.
But Italy will need counsel for the next court date, which is Sept. 27 in Rochester.
The lawsuit was filed by Ecogen LLC over the town’s denial of a special use permit for a wind generation facility last October. Ecogen had applied for a permit to build up to 17 wind turbines in Italy. The company has similar plans for the town of Prattsburgh.
Harter Secrest & Emery Partner Richard Alexander told the judge the town owes his firm around $175,000 in legal fees and more than $5,000 in costs.
According to Italy Town Supervisor Brad Jones, who took office Jan. 1, the town used $200,000 from surplus funds last year to pay legal bills, and when the previous town board established the 2010 budget last fall, it only included $40,000 for legal expenses for the entire 2010 year. That amount has already been spent.
Harter Secrest & Emery sent a bill for $46,000 to the town in January.
Alexander said Jones promised to pay the firm $20,000 in June, but when the firm inquired in July about the payment, it was learned the town used the funds to pay other legal expenses.
Jones told the judge the town’s total annual budget is between $800,000 and $900,000, and to pay the fees and costs now will require a 20 to 30 percent property tax increase in 2011.
He said the town has asked the law firm to agree to a payment plan. “It’s not an unwillingness to pay,” he said.
Italy Town Attorney Ed Brockman told the judge the town will be put at an extreme disadvantage without the representation of Harter Secrest & Emery as the case progresses.
Alexander said the firm had been engaged in conversations to try to work things out, but added, “The clients are being unreasonably difficult to deal with.” He said there was tension between the firm and Jones that he wanted to discuss privately with the judge.
“If the court does not dismiss this case, we face a significant loss in fees and disbursements,” Alexander said.
During the open discussions and comments, Brockman said this situation is the goal of the Ecogen team – to push the town’s financial resources into the red.
Gary Abraham, the attorney representing the Finger Lakes Preservation Association, an unincorporated group of citizens that has been involved in the issue, said the town offered to enter into a payment plan with the law firm. “There’s no question they would be paid over time,” he said.
Ark told the parties, “The liklihood is that this litigation is going to go on for a long time.”
Noting the nature of the case, he added, “We’re in uncharted territory,” explaining that even if he does rule to dismiss the case, there’s a chance it will continue to drag out in appeals.
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