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Spray park lawsuit trickles through legal system

Rochester Business Journal
August 6, 2010

Five years after several thousand visitors to a state-run water park in Geneva were laid low by a nasty intestinal bug, a class-action suit accusing the state Department of Parks and Recreation of negligence in letting parasites infest the park's waters could be inching toward a trial.

After initially agreeing to engage in settlement talks with lawyers from the Rochester and Seattle firms representing Seneca Spray Park plaintiffs, state Attorney General Andrew Cuomo has reversed course, signaling that he instead will seek to have the case thrown out.

After canceling settlement talks in May, however, Cuomo missed a deadline to submit papers stating reasons to drop the case and has asked for an additional two months to prepare a brief.

The attorney general's New York City press office did not respond this week to a request for an update on the spray park litigation.

In July 2005, nearly 4,000 visitors to the water park on the shores of Seneca Lake reported bouts of diarrhea, fever and other symptoms. State health officials determined that their ills had been caused by cryptosporidiosis, a disease caused by a single-celled parasite found in feces-contaminated water.

Sufferers typically recover on their own in two weeks, but some can experience longer-lasting ills. Those who become severely dehydrated could have to be hospitalized. The very young and the very old are most severely affected. For transplant patients and others with compromised immune systems, the disease can be fatal.

Most spray park visitors who contracted cryptosporidiosis were children, said plaintiffs' attorney Paul Nunes of Underberg & Kessler LLP. No one is known to have died as a result of the outbreak.

"There were serious consequences," Nunes said. "I wouldn't want anyone to suggest that these kids just suffered stomachaches. That it has taken five years for the litigation to get to this point is unconscionable."

Initially filed by a single Brighton family in 2005, the Seneca Spray Park complaint gained class-action status in 2006. Some 2,500 claimants joined the suit before a cutoff date passed.

The litigation's progress has not been swift, and plaintiffs' attorneys blame the slow pace on the attorney general.

"We have moved quickly; they have not," Nunes said.

In a 2007 decision, Court of Claims Judge Nicholas Midey Jr. in Syracuse acceded to the request of plaintiffs' attorneys to impose sanctions on the state for stalling.

In the ruling, the judge chided the state's lawyers for failing to supply information in a timely manner, failing to name expert witnesses and failing to produce promised discovery materials. Midey ordered the attorney general to pay $1,000 to cover mailing costs that the plaintiffs incurred as a result of the delays.

When the state indicated last year that it would be willing to explore a settlement, Midey named Court of Claims Judge Norman Siegel in Utica to oversee the discussions.

The settlement talks were slated to start in February. After the attorney general asked for more time to prepare, Siegel moved the start date to May and then to early June. Before any talks got under way, however, Cuomo reversed course.

Midey set a July deadline for Cuomo to file a motion for summary judgment. But as the deadline loomed, Cuomo asked for an additional 60 days.

In a July 28 letter, Nunes urged Midey, who has yet to respond to the attorney general's request, to rebuff Cuomo.

"It is now painfully conspicuous that the state was acting in bad faith. Its mission has been to delay, delay and delay," Nunes wrote in the letter. "The state cannot articulate a reason for requesting an additional 60 days because there is no reason. We are now entering our sixth year of litigation. ... Enough is enough."

In a June 10 online update in which he informed claimants of the new delay, Nunes and William Marler of Marler Clark LLP in Seattle bemoaned the class-action suit's lack of progress, suggesting that political considerations could be behind the attorney general's latest moves.

"It is quite likely that the state's current financial difficulties play some role in its decision to back out of the mediation," Marler states in the post. "We can only speculate if Attorney General Cuomo's decision to run for governor was a factor."

In a telephone interview this week, a third plaintiffs' lawyer in the case, Marler Clark partner Bruce Clark, voiced similar speculation, adding that "by the way, they haven't paid the $1,000 yet."

8/6/10 (c) 2010 Rochester Business Journal. To obtain permission to reprint this article, call 585-546-8303 or e-mail

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