The New York Power Authority is making another effort to win dismissal of Niagara County's lawsuit against the authority, a move the county's lawyer called a delaying tactic.
State Supreme Court Justice Ralph A. Boniello III rejected the authority's first dismissal effort in late December.
He also converted the county's lawsuit from an "Article 78" case, which is a suit filed to try to block a decision by a government agency, to a regular complaint.
That opened the way for the Power Authority to file another dismissal motion, even though the contents of the county's second suit are almost exactly the same as the first. And, said Charles Graney, attorney for the county, the Power Authority's arguments against allowing the suit to go forward are almost identical to the ones Boniello rejected in December. A court date is set for April 21 in Niagara Falls.
"It's another tactic to delay getting to the merits of the case," said Graney, a partner in the Webster Szanyi law firm.
"NYPA's first motion to end the lawsuit, though dismissed, is in an appeals process. NYPA's recent motion addresses a second pleading filed by Niagara County covering the same issues in their first pleading. We remain confident that the actions taken by the NYPA board to assist the state will be upheld," said Bert Cunningham, a Power Authority spokesman.
The Power Authority has asked the Appellate Division of State Supreme Court to overturn Boniello's first ruling, in which the judge said the county has legal standing to challenge the legality of the vote by the authority board early in 2009 to send $544 million in surplus funds to the state treasury to help balance the state budget.
The suit alleges that if the Power Authority had so much unused money, it must be overcharging for electricity, including the hydropower generated at the Niagara Power Project in Lewiston.
Besides canceling the transfers, which the Power Authority called loans or voluntary contributions and its critics call sweeps, the suit demands rebates to Niagara County electric customers.
With the appeal of Boniello's December order pending, the Power Authority has not complied with any of the county's demands for documents, which, the county believes, would prove further improper transfers to the state treasury before 2009.