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Lawsuit

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Commack HIgh School. Photo from Google Maps

A teacher is suing the Commack school district stating it has fostered an atmosphere of racial harassment and discrimination against her for more than 17 years.

Andrea Bryan, of Bay Shore, filed a lawsuit Dec. 19 in the U.S. District Court of Eastern New York against Commack Union Free School District saying administrators “exhibited a deliberate indifference” when she reported her fellow faculty and students were racially harassing her, according to the lawsuit.

Bryan, who is described only as a “black female of Caribbean descent” in the lawsuit, has worked as English teacher at Commack High School since 2002. She alleges the racial harassment began prior to 2015, when a faculty colleague first told her a bag of peanuts was “for whites only.” The teacher said she reported a complaint with her supervisor, according to court records.

“The Commack school district takes any allegation of discrimination seriously and, as a matter of policy and practice, acts swiftly in response to any claim,” district spokeswoman Brenda Lentsch said.

Bryan alleges that the racial discrimination against her, as “the only black teacher in the entire school district,” has only escalated since then.

We can say that all of her claims were investigated and, to the extent appropriate, promptly addressed.”

— Brenda Lentsch

In the lawsuit, she details an alleged incident where she was asked to “translate slave talk” by the same co-worker while English students were studying Arthur Miller’s play, “The Crucible,” which features a character named Tituba who is an enslaved black woman.

Bryan also claims to have received a bottle of hand sanitizer during a Secret Santa gift giving between co-workers with a $50 spending limit, that she took indicated the co-worker thought she was “dirty” due to her race.

The district’s spokesperson said that the school’s administration have been made aware of the incidents alleged by Bryan over recent years.

“We can say that all of her claims were investigated and, to the extent appropriate, promptly addressed,” Lentsch said in a statement. “Several of these allegations were first raised many years ago and were resolved at that time. Many of the allegations in the lawsuit are false.”

While unwilling to discuss specific details citing privacy requirements, the district’s spokeswoman said Bryan’s claim that she is the only black teacher in Commack school district is “incorrect.”

But the English teacher said the racially motivated insults and harassment she experienced went beyond the faculty and administration, and began to trickle down to students in her classroom. Bryan alleges a student once came to school in blackface makeup dressed as Aunt Jemima, a caricature of “a devoted and submissive plantation slave” depicted on a line of pancake syrup and breakfast foods put out by The Quaker Oats Company. For several years, the teacher claims students have called her Aunt Jemima in the school’s classrooms, hallways and cafeteria causing her to be “greatly humiliated, embarrassed and degraded.”

Commack school district’s Code of Conduct states that “intimidation or abuse based on a person’s actual or perceived race, color, weight, national origin, ethnic group, religion, religious practice, disability, sexual orientation, gender (identity or expression), or sex” will not be tolerated, according to Lentsch.

Through the lawsuit, Bryan is seeking monetary damages from the district for the racial
discrimination, though the documents don’t specify a dollar amount. Her attorney, Peter Romero of Hauppauge, said he had no comment given the matter is currently pending litigation. A jury trial has been demanded.

Suffolk County Legislator Rob Trotta. Photo by Sara-Megan Walsh

A proposal for Suffolk County sue former  police chief James Burke over the $1.5 million settlement it paid out to his victim was tabled by the county Legislature as legal advice on the best approach to seek reparations differed.

The county’s Ways and Means Committee held a public hearing Dec. 13 on Legislator Rob Trotta’s (R-Fort Salonga) resolution to have Suffolk District Attorney Tim Sini (D) initiate a lawsuit against Burke for the settlement the county paid out to Christopher Loeb in February 2018.

Legislator Bridget Fleming (D-Sag Harbor),the chairwoman of the committee, cited a memo from county attorney Dennis Brown that advised Trotta’s proposed lawsuit “would likely be unsuccessful but could expose us to [court] sanctions and attorney fees.”

“As the committee has discussed, there is no way to recover or recoup the settlement dollars paid in that lawsuit.”

— Dennis Brown

“There is no basis for it,” Brown said when questioned. “As the committee has discussed, there is no way to recover or recoup the settlement dollars paid in that lawsuit.”

In the federal civil lawsuit, Suffolk agreed to pay the $1.5 million settlement as Burke’s employer at the time for the civil rights offenses and the actions of six other police officers who participated in covering up the ex-chief’s actions. Burke retained his own private attorney and settled Loeb’s civil case against him for an undisclosed sum, according to Fleming.

Howard Miller, a Garden City-based attorney with the law firm Bond Shoeneck & King, presented a case for the county suing Burke for his wages and compensation paid by the county under the faithless servant doctrine. This doctrine, according to Miller, dates back to the 19th century allowing employers to seek compensation back from disloyal employees.

“Here, the facts are egregious as you had not only beating of the suspect but systematic coverup of that,” he said. “This doctrine is designed to create a deterrent to future acts like this, of corruption and misconduct.”

Attorney Howard Miller speaks before Suffolk County Legislature. Photo by Sara-Megan Walsh

Miller stated doing so wouldn’t necessarily require further court litigation, given Burke had pled guilty, but could help Suffolk to claw back wages and any benefits paid to the former police chief from the date of the incident with Loeb, occurring in 2012, through Burke’s resignation in October 2015. While he admitted a lawsuit to see back the $1.5 million settlement was iffy, Miller said he has successfully represented clients at the state level who have been successful in similar lawsuits, including the William Floyd school district.

“What would be a successful lawsuit in my opinion, a plainly meritorious suit would be to go after the compensation [Burke] was paid while he was covering up his misconduct,” Miller said.

Fleming called for the county attorney to research the county’s legal possibility further and received a vote to table the discussion. Trotta has promised to submit an new resolution seeking to sue Burke for repayment of his salary.

Several Suffolk residents and former police department members asked the Legislature to further investigate what its legal options were for seeking repayment of the settlement, Burke’s salary or pension.

“You as the legislative body of our county have a fiduciary responsibility to Suffolk residents to go after the employees whose actions harm their employees, thus harming Suffolk County residents,” Pam Farino, of Smithtown, said. “Disgraced ex-chief James Burke did just that.”

Huntington resident James McGoldrick complimented Trotta for his intentions but asked the county’s officials to consider the cost of any legal action, considering the total funds Suffolk stood to regain might not be enough compared to the expenses of further litigation.

Northport power plant. File photo

Town of Huntington officials made the decision Tuesday to take Long Island Power Authority’s proclaimed value of the Northport Power Station at $193 million as an invitation to investigate purchasing the facility.

Huntington town board approved a resolution offered by Councilman Gene Cook (I) to authorize the town attorney’s office to formally research into its legal options in utilizing eminent domain to take ownership of the Northport plant by a 4-1 vote.

“It’s for the people, to look out for the future of the Town of Huntington,” he said. “I have done a lot of research and I believe it’s the right thing to do.”

“It’s for the people, to look out for the future of the Town of Huntington.”

— Gene Cook

The councilman first raised the possibility of turning to eminent domain back in May, days after LIPA submitted documents to Suffolk County Supreme Court in its pending tax certiorari lawsuit against the town, which disputes the current annual tax-assessed value of the plant at about $80 million. The utility company has alleged the structure only has a fair market value of $193,680,000 as of July 1, 2013, based on a market value report from Tarrytown-based Tulis Wilkes Huff & Geiger.

“I looked at that appraisal not as a fair evaluation, but an invitation for the town to explore condemnation of the plant,” Councilman Ed Smyth (R) said. “The price is so ridiculously low that it would be negligent of us to not explore the possibility of acquiring the plant.”

Smyth said that he believes the Northport Power Station, which is actually owned by National Grid, is underutilized by LIPA, perhaps intentionally to devalue it given the ongoing tax certiorari lawsuit.

Cook had previously stated he believes the Northport facility is one of the largest power plants in the Northeast and will become more valuable with future improvements. He said his research shows the facility has the potential to operate and generate electric for another 15 to 30 years, up to a maximum of 40 years before closing down. Cook previously estimated the power station could produce as much as $5 billion in revenue per year for the town.

“The price is so ridiculously low that it would be negligent of us to not explore the possibility of acquiring the plant.”

— Ed Smyth

“What I like if the town buys it now at this rate is, when the plant is closed, we could shut it down and give the property back to the people for reaction or environmental uses,” he said.

Councilman Mark Cuthbertson (D) was the lone vote against an official resolution requesting the town attorney’s office to conduct research into the possibility of eminent domain. He called the legislation an unnecessary act of “grandstanding,” stating any board member could have simply verbally requested the town attorney to look into the matter.

“We are creating false hope this is a viable option, if it really were an option our lawyers would have suggested it a long time ago,” he said. “It is not a possibility to operate the LIPA plant as municipal power authority.”

The councilman also stated that under New York State General Municipal Law, if the town were to take over daily operation of the power station it would not pay any taxes to the Northport-East Northport School District — which currently receives approximately $56 million annually from the utility company.

If the town were to initiate the process of obtaining the power plan via eminent domain, it would not resolve the town’s lawsuit with LIPA. In addition to seeking a 90 percent reduction of taxes on the power plant, LIPA is asking for the town to reimburse it for alleged overpayment of taxes each year since it filed the claim in 2010 — totaling more than $500 million.

“We are creating false hope this is a viable option, if it really were an option our lawyers would have suggested it a long time ago.”

— Mark Cuthbertson

Sid Nathan, spokesman for LIPA, said the company had no comment as it is continuing negotiations at this time. 

Huntington, Northport-East Northport school district, LIPA and National Grid all agreed to sit down with neutral third-party mediator, Port Washington-based attorney Marty Scheinman, in nonbinding arbitration this July to see if all parties could reach a potential settlement agreement over the tax-assessed value of the Northport plant. The trial on the tax certiorari case is scheduled to continue in February 2019, according to Cook. 

Tom Kehoe, deputy mayor for the Village of Northport, commended Cook and the town board for their decision to move forward with investigating the legal potential of utilizing eminent domain to take over the plant.

“Whether it ever gets to the point of the town acquiring it through eminent domain, it’s another piece of the puzzle that will put a little pressure on the utility and LIPA to come to an agreement that’s good for all of us,” Kehoe said.

Former legislative aide alleges then-state assemblyman forcibly touched him in Albany hotel rooms

Huntington Supervisor Chad Lupinacci. File photo by Sara-Megan Walsh.

A former staff member of Chad Lupinacci, Huntington town supervisor, has filed a lawsuit alleging the then-state assemblyman of sexual assault and harassment during his employment.

Brian Finnegan, Lupinacci’s former legislative aide and chief of staff, filed a lawsuit in Suffolk County Supreme Court Dec. 4 alleging that Lupinacci forced non-consensual sexual acts and inappropriate touching on him during overnight trips to Albany in December 2017.

“I was forced to forfeit my career in public service, something in which I took much pride in making our community a better place,” Finnegan said in a statement. “At the drop of the hat, my hard work was meaningless and I was unemployed, all because I was the target of a sexual predator. My life was shattered.”

“At the drop of the hat, my hard work was meaningless and I was unemployed, all because I was the target of a sexual predator. My life was shattered.”

— Brian Finnegan

Brian Griffin, a Garden City-based attorney with Foley Griffin LLP representing Lupinacci, said Finnegan’s allegations were “unequivocally false and completely without merit,” and an attempt at “an unjust and unwarranted financial payday.” The attorney said that despite the alleged incidents having occurred approximately a year ago, no complaint was ever filed with the New York State Assembly.

Finnegan worked as legislative aide for Lupinacci for three years while he represented the 10th state Assembly District and traveled with him to Albany at least once a month for work responsibilities. During that time, Manhattan-based attorney Imran Ansari, of Aidala, Bertuna & Kamins PC, said his client, Finnegan, was subjected to “a pattern of somewhat bizarre and inappropriate behavior” culminating in an alleged sexual assault.

“Mr. Finnegan was subjected to unlawful and unwanted sexual contact by Mr. Lupinacci that amounts to nothing less than assault,” the attorney said. “He endured harassment and abuse over his time working for Mr. Lupinacci and in order to escape this hostile work environment gave up a position in public service that was personally, professionally and financially rewarding. He’s suffered economic damages and pain and suffering, but most importantly, he seeks the justice.”

The lawsuit filed this month claims that Finnegan frequently was asked inappropriate questions about his personal life, including the women he was dating, from the then-assemblyman, and found evidence his employer went into his cellphone and computer without permission.

“Supervisor Lupinacci has spent over a decade educating our students, serving on the local school board, working in the [state] Assembly and as the supervisor of the Town of Huntington,” Griffin said in a statement. “Supervisor Lupinacci denies these claims and will continue to serve the people of the Town of Huntington in the same professional and dedicated manner that he has done throughout his career in public service. He will vigorously defend himself against these false allegations.”

On Dec. 5, 2017, Finnegan said he was sharing a hotel room at Hilton Albany with Lupinacci, who allegedly insisted it was for “budgetary reasons,” when between the hours of 2 to 5 a.m. he woke to finding his employer standing over him. The former aide alleges that he felt Lupinacci touching the zipper of his suit pants and attempted to bat him away, according to the lawsuit. He claims to have confronted Huntington’s supervisor-elect asking “What are you doing?” before falling back asleep, and a second time tried to confront him but Lupinacci allegedly jumped back into bed.

Supervisor Lupinacci denies these claims and will continue to serve the people of the Town of Huntington in the same professional and dedicated manner that he has done throughout his career in public service.”

— Brian Griffin

Finnegan claims he was reluctant to make a second overnight trip to Albany Dec. 12, 2017, and share a room with the then-state assemblyman at the Renaissance Albany Hotel. The ex-staffer said he awoke around 2:30 a.m. in the morning to find Lupinacci kneeling at the side of his bed. Lupinacci allegedly replied something about “checking to see if [Finnegan wanted food] and left,” according to the lawsuit. The lawsuit alleges Finnegan’s boxers had been moved and manipulated to expose his genitals, and said he believes Lupinacci had inappropriate and nonconsensual sexual contact while he was asleep amounting to sexual assault.

“You’ve been touching me in my sleep and I’m not going to take it anymore,” Finnegan said confronting Lupinacci, according to the lawsuit. “This is done, this is over, I can’t work for you anymore.”

The ex-staffer said he left Renaissance Albany in the early hours of the night, purchased an Amtrak ticket home and waited as the politician allegedly attempted to repeatedly call his cellphone before driving around the city of Albany in an effort to find him.

“I was terrified and felt hunted,” Finnegan said.

The former staffer said he gave his resignation to Lupinacci days later and declined a position already offered to him as an executive assistant and senior adviser in the incoming Huntington administration.

The lawsuit seeks monetary compensation from the Huntington town supervisor for economic damages, in addition to pain and suffering, Ansari said. While a specific dollar amount was not cited, the attorney argued his client could have been earning considerably much more working for the town with better benefits. Finnegan is now employed by Todd Shapiro Associates Public Relations in Manhattan.

Port Jeff Superintendent Paul Casciano and board President Kathleen Brennan. File photos by Alex Petroski

By Alex Petroski & Sara-Megan Walsh

Port Jefferson and Northport-East Northport school districts, as well as the Town of Huntington, were dealt a blow in the legal battle against Long Island Power Authority in August. But, it doesn’t mean they are going down without a fight.

Port Jeff board of education voted unanimously — 6-0 with board President Kathleen Brennan absent — during a Sept. 24 special meeting to file an appeal of New York State Supreme Court Justice Elizabeth Emerson’s Aug. 16 ruling that LIPA “made no promises” to the Town of Huntington, Northport-East Northport and Port Jefferson school districts not to challenge the taxes levied on its power stations.

Huntington Town Attorney Nick Ciapetta said the municipality formally filed its appeal of Emerson’s decision the following day, Sept. 25.

The judge’s ruling dismissed the third-party lawsuits brought forth by Huntington and the two school districts which alleged LIPA broke a promise by seeking to reduce the power plant’s taxes by 90 percent. The resolution passed by Port Jeff school board authorized its legal counsel, Ingerman Smith, LLP, to file the appeal.

“We do think her decision was incorrect, and clearly we do recommend that the board consider filing a notice of appeal in this proceeding,” said attorney John Gross of Ingerman Smith, LLP, prior to Port Jeff’s Sept. 24 vote.
Northport-East Northport’s board trustees had previously voted to pursue an appeal at their Sept. 6 meeting.

Gross, who has been hired to represent both Northport and Port Jeff schools, said the districts

will have six months to perfect appeals. During this time, the districts’ legal team will prepare a record including all exhibits, witness depositions, and information gathered from the examination of about 60,000 pages of documents. He said a brief outlining the  legal arguments against Emerson’s decision will be crafted prior to submitting the appeal.
LIPA will be given several months to prepare a reply, according to Gross, prior to oral arguments before a four-judge panel in New York State Appellate Division of the Supreme Court. Further appeals are possible following that decision. Gross said the process could take more than a year.

Meanwhile, Huntington Town, Northport-East Northport school district, LIPA and National Grid have agreed to pursue non-binding mediation relating to the case, which begins Sept. 26. Gross said while Port Jeff is not a party to the mediation, it will be monitoring the outcome because the process could establish a pattern of resolution for its case. He also said the district can withdraw its appeal at any time, but once that occurs it cannot rejoin the process.

“Legal actions taken by the Town [of Brookhaven], [Port Jefferson] Village and school district to generate an equitable solution to the LIPA tax assessment challenges are intended to protect its residents and children against exorbitant property tax increases; especially in a very short interval of time,” Port Jeff school district said in a publicly released letter Sept. 12 prior to passing a resolution authorizing the appeal. “Please know, that the district fully understands that the decision about engaging legal counsel is one to be made with great care, as it always carries a financial implication while never guaranteeing a verdict in one’s favor.”

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We get it — if you read our newspapers or just about any other media that cover Long Island, you’ve heard enough over the past decade about the legal battles going on between several school districts and townships versus Long Island Power Authority.

If you feel like you’re on LIPA overload, we have some significant news — a major development occurred in the cases last week. A New York State Supreme Court judge determined that the 1997 Power Supply Agreement between National Grid, which owns the power plants, and LIPA, which transmits that electricity to customers, did not contain any language, or “promise,” that prevented the utility companies from seeking to have taxes they pay on the power stations reduced.

The good news is this decision may signal there’s a light at the end of the tunnel to this endlessly drawn-out court battle. We fear the positives may end there.

LIPA has said that its intention in filing these lawsuits is to be able to reduce energy bills for its customers, as it hopes to pay out less in property taxes. On its face, the company’s goal appears to a good thing for residents of Huntington and Brookhaven townships, who will likely see a reduction in their monthly electrical bills should LIPA be victorious, except for the residents in Northport and Port Jefferson, who will see a property tax increase. These odds seem an increasingly likely fact in recent weeks as courts have ruled twice  in LIPA’s favor.

However, these legal battles have been waged for nearly a decade, racking up what we can only imagine are substantial legal bills from lawyers hired to represent the municipalities and the school districts involved. Then adding in fees paid for a third-party mediator when sit-downs begin in September, we find ourselves asking, “At what cost?”

We hope to find out just how much taxpayers’ money has been spent on legal fees for the duration of the saga, so keep an eye out for that. And for what? The “Hail Mary” play that a court would determine the 1997 PSA had implied a legally binding promise that LIPA wouldn’t seek a reduction in its property taxes.

It was such a risky play for Brookhaven Town and Port Jefferson Village that those two municipalities have agreed to settle the cases out of court to avoid exposure to the risk of years of back pay should the issue actually end up in a trial loss for the two entities. Still, why did it take Brookhaven and Port Jeff until 2018 to finally reach a settlement while legal fees kept accruing?

All of this can also be looked at against the backdrop that New York Gov. Andrew Cuomo (D) has set a goal for 50 percent of the state’s energy to come from renewable sources by 2030. Who’s going to pay for the solar and wind producing plants necessary, for example, to get on track in reaching that goal? We don’t think we’re going out on a limb in speculating that at least some of that cost will fall on LIPA’s customers.

While we’d like to think we’re inching closer to a day when we no longer have to report on legal issues pertaining to LIPA, a positive resolution for all stakeholders is going to take significantly more work. In reality, it should have been resolved long ago.

Democratic challenger files immediate appeal, keeps eyes on November's general election

Michael Marcantonio speaks at his July 30 press conference. Photo by Kyle Barr

A judge has ordered Democratic challenger Michael Marcantonio’s name be removed from the ballot for the 12th Assembly District.

New York State Supreme Court Judge Richard Horowitz issued a decision Aug. 17 that Marcantonio, 31, does not meet the minimum residency requirements to run for state Assembly.

His campaign has already filed an appeal of the decision, a staff member of Suffolk County Board of Elections confirmed Aug. 20.

“We will be proceeding with an appeal not just for our campaign, but for young people across our state that would be disenfranchised if this decision was allowed to stand,” Marcantonio said in a statement. “Long Island is facing a loss of our young people as they obtain education and are forced to seek opportunities elsewhere. This decision would place further barriers between young people and their ability to serve our communities.”

“We will be proceeding with an appeal not just for our campaign, but for young people across our state that would be disenfranchised if this decision was allowed to stand.”

— Michael Marcantonio

In July, 12th District residents Ralph Notaristefano, Paul D’Alessio and Kathleen Barnhart filed a lawsuit contending Marcantonio did not meet New York’s residency requirements to run. Under state law, any candidate for state office must show he or she has resided within the state for a minimum of five years and in the assembly district for one year.

The judge ruled that because Marcantonio registered to vote in the 2012 presidential election in North Carolina, where he attended law school at Duke University from 2012 to 2015, he did not meet the five-year New York State residency requirement, according to a statement issued by Marcantonio’s campaign.
Marcantonio could not immediately be reached for further comment. His campaign did not immediately provide a copy of the judge’s decision upon request.

At a July 30 press conference at Cow Harbor Park in Northport, Marcantonio said he believes his right to run for office is protected under the U.S. Supreme Court decision Symm v. United States (1979), which he said allows for students’ right to vote without losing their residency.’

“Merely registering to vote as a student out of state is not enough to eviscerate your residency in this state as a New Yorker,” Marcantonio said July 30.

The Democratic challenger remained on North Carolina’s voter lists until he graduated with his legal degree in 2015. He changed his registration to New York for the 2016 presidential primary, and cast a ballot in the last Northport school board election.

Marcantonio had previously said if he lost the lawsuit, he feared it could bar young people from voting while attending out-of-state school and then coming back to run for office.

Incumbent state Assemblyman Andrew Raia (R-East Northport), whose seat Marcantonio was vying to grab, previously weighed in on the issue stating anyone who may want to run for office after attending school in another state should use absentee ballots.

Town of Huntington, Northport-East Northport and Port Jeff school districts lose third-party lawsuits

Port Jefferson Superintendent Paul Casciano and Northport-East Northport Superintendent Robert Banzer. The two districts had legal challenges shot down by a judge Aug. 16 pertaining to property tax assessment claims made by LIPA. File photos

By Sara-Megan Walsh & Alex Petroski

A New York State Supreme Court judge has ruled Long Island Power Authority “made no promises” to the Town of Huntington, Northport-East Northport school district and Port Jefferson School District not to challenge the taxes levied on its power stations.

Judge Elizabeth Emerson dismissed the lawsuits brought forth by the Town of Huntington and the two school districts Aug. 16 which alleged LIPA broke a promise by seeking to reduce the power plant’s taxes by 90 percent.

“The court’s decision affirms our customers’ right to pay reasonable taxes on the power plants,” LIPA said in a statement from spokesman Sid Nathan. “We remain committed to reaching a fair settlement for both the local communities and our 1.1 million customers to put an unsustainable situation back on a sustainable path.”

Port Jefferson Power Station. File photo by Alex Petroski

The judge’s ruling is a big victory for LIPA as it allows tax certiorari cases to continue to trial, rather than being dismissed, and could have a widespread impact across Long Island for other municipalities with similar disputes against the utility.

“Obviously, we disagree with this decision and plan to appeal,” Northport Superintendent Robert Banzer wrote in a letter to district residents. “Please understand that Justice Emerson’s decision is not the end of our fight in this case.”

Port Jeff school district also responded to the development.

“While this decision is not the outcome the district was hoping for, we vow to continue to explore our options as we work to protect our school district’s financial future and the needs of our community,” the district said in part in a statement. “The district will work to keep the community apprised of any updates on the matter.”

In her 24-page decision, Emerson denied any notion that chapter 21, section 16 of the 1997 Power Supply Agreement signed by LIPA when it took over Long Island Lighting Company — which has been referred to as the 1997 Promise – was intended to benefit the school districts by preventing LIPA from challenging the tax-assessed value of its power plants.

Rather, she found it was to ensure other parties, including LILCO and GENCO, which owned the plants at the time, could not start initiating tax claims during the takeover process.

She also dismisses all claims that town governments or school districts were intended third-party beneficiaries of the contract.

“The Power Supply Agreement is clear and unambiguous and that it does not bestow any enforceable third-party-beneficiary rights on the plaintiff,” Emerson wrote.

The judge pointed to the PSA saying it “does not expressly name” either the town or school districts as a third-party beneficiaries.

“She applied contract law, not third-party beneficiary law,” said John Gross, the attorney representing Northport-East Northport school district. “That’s what we think she the mistake on.”

Gross said New York State law allows entities, like the school districts, to be recognized as third-party beneficiaries based on third-party conversations, letters, and promises. The school districts have filed thousands of pages of documents with the courts, according to Gross, that include official correspondence and records of conversations former LIPA chairman Richard Kessel had with school administrators and Huntington Town officials allegedly promising not to challenge the tax assessment of its power plants.

The judge ruled these “extra-contractual promises” made largely by Kessel “were gratuitious promises for which there was no consideration.” As such, the former chairman’s words “did not contractually bind LIPA.”

Gross said the school’s status as a third-party beneficiary “was wrongly decided.”

This recent decision could have large and profound impact not only on Huntington, Northport-East Northport and Port Jeff schools, but for all other municipal government and school districts that are LIPA’s power plants.

On Page 18 of her decision, Emerson wrote not only did the PSA contract not protect the Town of Huntington, Northport or Port Jeff school district taxpayers but “other similar situated school districts and municipalities.”

“This result was to a very large extent expected by the village, and that’s why the mayor and the board of trustees very early, initiated and drove settlement discussions with LIPA to resolve the issue,” Port Jefferson Village Attorney Brian Egan said.

The village board of trustees and Mayor Margot Garant in April passed a resolution approving “settlement concepts,” and the two sides are exchanging details of terms, expected to reach conclusion “at any time,” Egan said.

“When we’re a taxing jurisdiction and we’re going to subject ourselves to the back taxes on a longshot, that is not what we do with taxpayer dollars,” Garant said. “We have an obligation to not gamble, so to speak.”

“Please understand that Justice Emerson’s decision is not the end of our fight in this case.”

— Robert Banzer

Huntington town attorney Nick Ciappetta said the town plans to file an appeal of the judge’s decision.

“We believe there’s only one logical and legal way to interpret that provision,” he said. “That provision was there for the benefit of the taxpayers of Huntington.”

The town, Northport and Port Jefferson school districts will have 30 days to file an appeal once the decision is officially entered into court records, according to Ciappetta. He estimated an appeal of the decision could take 18 to 24 months.

“The decision does not affect the pending tax certiorari case between the Town of Huntington and LIPA scheduled for trial in December, nor do we expect it will impact the parties’ willingness to proceed with mediation,” Banzer wrote to the community.

Gross confirmed that Northport school district is still looking forward to sitting down for the first mediation session with the Town of Huntington, LIPA, National Grid  and third-party neutral attorney Marty Scheinman slated for Sept. 26.

Officials in Brookhaven’s Town Attorney’s office could not be immediately reached for comment, though the town has also said it is nearing a settlement in its case. Egan speculated settlements for municipalities attempting to resolve cases out of court might be held up by mediation in Northport and Huntington Town’s case.

This post was updated Aug. 17 to include a statement from Port Jefferson School District, and to attribute LIPA’s statement to Sid Nathan.

A Stony Brook University student has alleged that a professor sexually harassed her. File photo

A 2018 Stony Brook University graduate has filed a lawsuit against a Stony Brook history professor claiming he verbally and sexually harassed her while giving preferential treatment to the male students over female students.

Erin Mosier, 24, filed a $3 million suit under Title IX of the Education Amendments of 1972 in Manhattan federal court Aug. 9 saying that Stony Brook associate professor Larry Frohman sexually harassed her and degraded her for her looks and gender, sometimes together during his office hours and other times in front of her peers during class.

Mosier enrolled at Stony Brook for the Fall 2015 semester desiring to become a teacher. She entered in the social studies education program in spring 2016 where Frohman was the sole undergraduate adviser, according to the court filings.

The lawsuit claims that during Mosier’s first semester at Stony Brook she took a class with Frohman and within weeks he started to privately and publicly make demeaning comments at Mosier based on her looks. The comments continued on into 2017 during her time in the social studies program. At one point during office hours Frohman told Mosier she “talks too much,” and that “all women should use their mouth for men’s pleasure.”

The lawsuit also alleges on another occasion April 2017 that after applying oil to her hands to calm herself, Frohman stated to her in front of her class, “What would calm me down is taking you through a ride on the beaver car wash with me,” alluding to a sexual act with Mosier.

Mosier’s legal representative, Brian Heller, an attorney from Manhattan-based Schwartz Perry & Heller LLP that focuses on employment harassment and discrimination law, said with this case he hopes more people will speak out about sexual harassment in education.

“These are the kind of painful experience that can destroy a young person’s confidence and impact them for the rest of their lives,” Heller said. “I hope that by coming forward [Mosier] is able to reclaim part of her self-worth and her confidence.”

The suit further claims Frohman gave preferential treatment to male students, giving higher grades to male students on average rather than female students. The lawsuit also claims the professor partnered women together on projects and not men as a sign of Frohman’s belief in their capabilities.

Frohman has not responded to requests for comment by press time.

The lawsuit continues that Mosier brought her complaints to Paul Gootenberg, the history department chair of the social studies program, but that he first asked Mosier “What is your appearance and how are you acting to be treated like this?” and that he further commented about how she was not the first to bring complaints to him about Frohman.

Gootenberg declined to comment saying the university does not comment on pending personnel questions.

The suit claims Mosier’s Title IX complaints were mishandled by the university, that the investigation took six months instead of a promised 60 days to finish the investigation and that the office did not adequately give information as to the status of her complaint. On Oct. 30, 2017, Mosier received a letter from the Title IX office saying the case was “closed” and her complaints were “substantiated” but she did not receive any details on what actions the university would take against the professor.

Stony Brook spokeswoman Lauren Sheprow said that the university does not comment upon ongoing litigation.

“The university does have policies and procedures in place to fully investigate claims that are brought to our attention,” Sheprow said.

Heller said he is still waiting for Stony Brook to be formally served and initial hearings won’t begin until December.

Northport power plant. File photo

Long Island Power Authority has won the latest battle against the Town of Huntington in the lengthy legal war over Northport Power Station’s value.

New York State Supreme Court’s Appellate Division has reinstated LIPA’s right to pursue a lawsuit against the Town of Huntington regarding the amount of taxes levied against the Northport power plant, reversing a September 2015 decision made by a lower court. A panel of judges ruled Aug. 8 LIPA does have legal standing to be a plaintiff in the 2010 lawsuit it filed jointly with National Grid.

“We believe the appellate court’s decision is correct.”

— Sid Nathan

“We believe the appellate court’s decision is correct,” LIPA spokesman Sid Nathan said. “We remain committed to reaching a fair settlement for both the local communities and our 1.1 million customers to put an unsustainable tax situation back on a sustainable path.”

In September 2015, state Supreme Court Justice John Bivona issued a decision dismissing LIPA’s standing as an initiating plaintiff in the tax certiorari case, since National Grid — and not LIPA — is the owner of the plant. Bivona had written that while LIPA believed its financial interests are adversely impacted by a wrongly overstated assessment of the power plant, “the result is still remote and consequential and certainly does not constitute a direct loss because the property taxes levied upon the Northport Power Station are actually and directly paid by National Grid Generation LLC.”

LIPA filed an appeal of Bivona’s decision in 2015. The utility has asserted while National Grid does own the power plant, the station is under contract with LIPA. Under the contract, LIPA is required to pay all costs to run the power plant — including the $80 million in annual property taxes to the Town of Huntington — and provide necessary fuel, for which in return it receives all electricity generated for its customers.

The utility company claims that its costs to operate the Northport Power Station including the taxes on it exceed the total revenue, resulting in LIPA referring to it as a “significant burden to LIPA’s customers.”

We’re reviewing the order from the appellate division and we’re considering an appeal.”

— Nicholas Ciappetta

With LIPA’s legal status reinstated as a party of interest on the tax certiorari case, the issue of the property tax-assessed value of the power plant could proceed to trial.

However, Huntington Town Attorney Nicholas Ciappetta has said he plans to carefully review the appellate court’s decision.

“We believe this has been wrongly decisioned,” Ciappetta said in a statement. “We’re reviewing the order from the appellate division and we’re considering an appeal.”

This latest legal decision comes less than a month after Huntington voted July 17 to hire a neutral third-party mediator, Marty Scheinman, in an attempt to reach a resolution with LIPA, National Grid and Northport-East Northport school district. The town agreed to pay Scheinman $1,150 an hour in addition to covering all out-of-pocket expenses, such as transportation and a one-time administrative fee, the total bill will be split among all parties in the mediation. 

Mediation has not yet started, but the first session is slated for Sept. 26, according to Chiappetta.

Update: Additional information was added to further clarify that the town will be splitting the costs of the third-party mediator. 

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