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Niagara County fires back on Mount View lawsuit

LOCKPORT – Niagara County Attorney Claude A. Joerg moved last week to dismiss a lawsuit that attempted to invalidate the county’s sale of its former nursing home, which closed at the end of 2007.

Briarwood Manor, a potential competitor of the new assisted-living home that has been approved for the former Mount View Health Facility, brought suit in January to try to stop the $550,000 sale of the five-story building to David M. Tosetto of Youngstown.

Briarwood Manor is a 160-bed assisted living facility located on Lincoln Avenue in Lockport.

Briarwood’s attorney, Guy J. Agostinelli, asserted that the county needed to hold public bidding on the property, instead of listing it with a real estate broker, as the county did.

Joerg said in his reply brief filed in State Supreme Court that the law requires “public advertisement,” and that’s what the county had done in listing the property in 2008. In June 2012, Tosetto made the first offer the county had received.

The applicable law, Section 215-6 of the County Law, says in full, “Such property may be sold or leased only to the highest responsible bidder after public advertisement.”

Last summer, the county was going to reduce Tosetto’s price to $196,000 because of the expense of removing asbestos from the former nursing home, built as a tuberculosis sanitarium in 1939.

However, after Agostinelli objected in a letter to the county Aug. 3 and made a $300,000 purchase offer on behalf of Briarwood Manor, the County Legislature decided to make Tosetto pay the original $550,000 price.

The deal was approved by the Legislature Sept. 17.

Tosetto said this week he has received all the state Health Department approvals he needs, but the lawsuit is delaying work on interior renovations at the building off Upper Mountain Road in the Town of Lockport.

Asked when the work on his new 150-bed assisted living facility is to begin, Tosetto said, “Literally, as soon as this is resolved.”

He said the work will take five months, so if the county gets a positive ruling from Justice Ralph A. Boniello III April 16, the new facility could open in September.

Joerg said in his legal papers that Agostinelli is using the wrong section of state law to make a case against the sale, and he had already missed the deadline to file for the correct section.

Joerg said the four-month statute of limitations expired in November 2012, because the Legislature approved Tosetto’s offer, pending asbestos studies, in July 2012.

The Jan. 17 filing date for the lawsuit, however, came exactly four months after the deal’s final approval.

Agostinelli could not be reached for comment.