NIAGARA FALLS - Man O' Trees, the contractor on the long-delayed Lewiston Road reconstruction project, and the City of Niagara Falls are headed for a courtroom showdown.
Man O' Trees, a Buffalo firm, and its owner, David Pfeiffer, filed a suit Tuesday against the city, the mayor, the city administrator, the city engineer and every member of the City Council, charging breach of contract and defamation.
The contractor followed up Thursday by obtaining a court order barring the city from awarding a contract to any other construction company to finish the work on Lewiston Road, which has been going on since 2009, complicated by the discovery of radioactive waste in the road bed.
Assistant Corporation Counsel Thomas O'Donnell said Friday that the city has completed its breach-of-contract lawsuit against Man O' Trees and its insurance company, for which a summons had been filed in June.
The sides are to meet Sept. 19 before State Supreme Court Justice Ralph A. Boniello III if the city's response to the Man O' Trees suit is ready in time. Otherwise, the court date is Oct. 3, said John P. Bartolomei, the contractor's attorney.
Boniello's temporary restraining order prevents the city from awarding a contract to complete the road work. Bids were opened Thursday, and Accadia Site Contracting of Depew was the apparent lowest of six bidders at a price of just under $4.36 million, O'Donnell said.
Boniello's order also bars city officials from saying anything defamatory about Man O' Trees, so O'Donnell said, "We will have no further comments."
The state Department of Environmental Conservation has said that the radioactive material can be left alone if it's under pavement, but if the road is opened up, then all of it must be removed.
A person with knowledge of the project's history said the city believes that Man O' Trees was seeking to increase its payment for the job by seeking out further radioactive material outside the boundaries of the job site.
Bartolomei denied that. He said, "The city asked [Pfeiffer] to get a radioactive materials license, which he did. With such a license comes certain standards."
In 2009, bidders were told to expect about 500 cubic yards of radioactive slag, but much more was found. A city official said 1,700 to 1,800 cubic yards have been removed and 160 yards are left; Bartolomei said the amount under the street is closer to 3,000 cubic yards.
The city's lawsuit seeks $4.06 million in damages, plus $650 a day in accruals from March 19, when the company's contract extension expired.
Man O' Trees demands $14 million for breach of contract, $100 million in punitive damages for alleged fraud and amounts ranging from $50 million to $89 million for alleged defamation and other complaints.
Man O' Trees' original contract was worth $7.7 million. Extra payments for radioactive removals were approved later. Bartolomei said Man O' Trees has been paid about $4 million so far for road work and $4 million for radioactive waste remediation.
Some environmentalists have claimed the source of the waste was the World War II atomic bomb project. Much of its waste is buried in Lewiston and Porter at the old Lake Ontario Ordnance Works. Another theory by some in City Hall is that it came from road fill obtained decades ago from a local fertilizer plant.