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Cheektowaga is asking the Appellate Division of State Supreme Court to overturn a ruling that prohibits a Seneca Nation of Indians casino outside the City of Buffalo.

In appeal papers filed Tuesday with the Rochester judicial panel, the town argues that State Supreme Court Justice Joseph G. Makowski erred last June when he ruled Gov. George E. Pataki did not have the power to permit the Senecas to open a casino outside the city.

"I feel very strongly about our chances of getting this overturned," Cheektowaga Town Attorney Michael J. Stachowski said. "It was a profound reach for Judge Makowski to ignore the language of the state's compact and memorandum with the Senecas (and rule it) unconstitutional. I believe the appellate judges will find it is not only constitutional but consistent."

The appeal also charges that the lawsuit, brought by a group of Buffalo business owners, is premature because the Senecas have yet to sign a final contract with Uniland Development to purchase a vacant parcel in Cheektowaga's Airborne Business Park.

In his 51-page ruling, Makowski said the 2002 gaming compact between the Senecas and the state called for the Senecas to establish three casinos: one at a defined location in Niagara Falls, one on their sovereign territory and one in Buffalo.

He struck down a clause that stated the Senecas could choose a site outside the city "in the event such a site in the City of Buffalo is rejected by the nation for any reason." The provision, he ruled, violates state constitutional provisions governing separation of powers.

In August 2003, the Senecas exercised that exemption, announcing their market studies rated Cheektowaga the best casino site in the county. In April 2004, the tribe got more specific, selecting a 57-acre parcel off Genesee Street adjacent to Buffalo Niagara International Airport as the ideal location.

Carl J. Paladino, the Buffalo businessman who led the challenge to the Cheektowaga casino, said he was confident the lower court ruling will withstand the appeal.

"I'm sure the court will do what's right and uphold the ruling. But if for some reason it is overturned, we'll fight this thing until hell freezes over," Paladino said.

Mayor Anthony M. Masiello, long an advocate of a downtown casino, also expressed confidence that Makowski's ruling will survive the challenge.

"I'm not surprised they're appealing, but we feel we're right on this thing and that the compact says the casino has to be in Buffalo," Masiello said.

The town's appeal was filed with just one day remaining on the the nine-month clock attached to the filing last July of the official notice to appeal. Stachowski, who was aided by the Senecas' Washington, D.C.,-based law firm, Akin Gump Strauss Hauer & Feld LLP, said difficulties settling the court record from the original court case had delayed the filing.

"Nothing about this case has been easy, but we have never wavered in our belief that the Senecas have the right to locate a casino anywhere they want in Erie County, and they have chosen Cheektowaga," Stachowski said.

The Senecas were not a party to the original lawsuit and are not directly involved in the appeal.

Paladino's group will have 30 days to file a response to the town's appeal, but when the appellate court will hear arguments remained unclear. Stachowski said that, while the court calendar is full through the summer, he will ask that the matter be heard much sooner.

"The Senecas are facing a deadline of December to get a casino under construction, so we can make a good case that this is an urgent matter," he said.


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