The North Tonawanda School District lost a round on a technicality with Kevin Gersh on Friday in State Supreme Court.
Justice Timothy J. Walker ruled that the district incorrectly served a "time is of the essence" letter on Tonawanda attorney Dean E. Lilac Jr. that called for action on Gersh's purchase of the former Lowry Middle School on Payne Avenue. The letter set a closing date of Dec. 8.
Under terms of the district's contract with Gersh, the letter should have been served on Gersh, attorney Dan Seaman of Lockport argued Friday. He and Lilac both represent Gersh locally.
School District Attorney Bernard Freedman said he believed he should be dealing only with Gersh's attorneys and that's why the letter was sent to Lilac.
In a brief hearing in the Angelo DelSignore Civic Building on Third Street, Walker ruled that it was "clear in the contract" that the letter should have been sent to Gersh.
Gersh obtained a stay in State Supreme Court to keep the Board of Education from finding him in default of his contract to buy the school. The board had been set to vote on the default at its Dec. 12 meeting.
Administrator of Montessori schools on Long Island, Gersh, 38, says he plans to convert the building into a college-level school for special-needs students in conjunction with Daemen College.
He signed a contract in October 2005 to buy the school for $700,000 and made a $70,000 deposit. School district voters approved the sale Dec. 9, 2005.
School officials have said Gersh was to have either closed on the deal by June or taken occupancy of the building, paying the district $5,000 a month rent until the sale was finalized.
School Superintendent Vincent Vecchiarella, who was in court Friday, said after the hearing that the Board of Education will meet in special session "early next week" to vote on issuing another "time is of the essence" letter to Gersh.
"The court realizes that on the merits we have the right position, and I'm confident that Gersh will realize that," he said.
"By January we want the sale closed," Vecchiarella said.
Gersh said in a telephone interview Friday: "I wanted to be in there by Dec. 15. That was my anticipation. At no time did I want to delay this."
He disputed the district's report that he was to have closed by June or taken occupancy of the building.
Gersh noted that the School Board discovered in June that it needed a city zoning variance for a college-level school in a residential neighborhood before it could sell Lowry. That approval came in mid-July.
He said "a lot of little things have popped up" during the financing process, including "some discrepancies" in the school's boundaries.
Lowry "is a white elephant. It's a difficult building to finance," said Gersh, adding that he is working with KeyBank.
"We're doing everything in our power to close as soon as possible. We're just weeks away. I have no desire to make the taxpayers carry the expenses any longer than they have to," Gersh said.
Meanwhile, he said, five students have enrolled at Gersh Academy and will start taking classes next month at Daemen. He anticipates a greater enrollment for the fall semester.