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Trial to start on money due to white firefighters

Testimony is scheduled to begin today in a case that will determine how much money Buffalo owes to 13 white current and former firefighters who were denied possible promotions after the city voided the results of 2005 and 2006 civil service tests on racial grounds.

State Supreme Court Justice John A. Michalek will preside over a nonjury trial that is expected to take about two weeks.

The trial follows a recent appellate court ruling upholding Michalek's decision nearly two years ago that the firefighters were treated unfairly.

Attorneys were trying to carve out a settlement Monday. David Rodriguez, the city's acting corporation counsel, and Adam W. Perry, the private attorney retained by the city, met with the judge in chambers for about 40 minutes. Andrew P. Fleming and Christen Archer Pierrot, attorneys for the firefighters, met separately with him for about 20 minutes.

Rodriguez and Perry declined to comment.

After the settlement talks collapsed, Fleming only would say, "We'll be back tomorrow to start the case."

Michalek also declined to comment on the case.

On April 29, the Appellate Division of State Supreme Court in Rochester unanimously upheld Michalek's ruling, issued last Oct. 29, in favor of the firefighters.

Fleming and Archer Pierrot declined to comment on the financial awards they will seek, but court officials estimated that the damage totals will be "in excess of" $200,000 for each of the 13, including the nine still on active duty.

The city is still dealing in federal court with various elements of a decade-old lawsuit brought by MOCHA -- Men of Color Helping All Society -- which represents African-American firefighters.

That court action deals with claims that the African-American firefighters had been the victims of racial bias in 1998 and 2002 civil service promotional tests.

In ruling against the city last October, Michalek cited the U.S. Supreme Court's June 2009 ruling that officials in New Haven, Conn., illegally tossed out fire department promotional tests because no African-American and only two Hispanics scored high enough.

For two years, Fleming, the firefighters' lead attorney, has been stressing the pretrial testimony of former City Human Resources Commissioner Leonard Matarese, who said he allowed the 2005 and 2006 promotional lists to expire because of "the fear of future litigation" by MOCHA.

In its April ruling, the appellate court found that the 2005 and 2006 tests contained only questions that were "job-related and consistent with business necessity."