A judge today denied Tucker Curtin’s request for a court order to prevent the Town of Hamburg from awarding a contract to another vendor to run the concessions at Woodlawn State Beach Park and to allow him to remove $100,000 worth of property he says he owns at the beach.
State Supreme Court Justice John A. Michalek said Curtin had not met the three requirements for such an order – a showing of irreparable harm if the order is not issued, a likelihood of success in a lawsuit and a balance of equities in his favor, or proof that the irreparable harm to him is more burdensome than any harm to the town resulting from the order.
He urged the two sides to meet and narrow the issues on which property at the beach is Curtin’s and can be removed and which must remain there.
Mitchell M. Stenger, Curtin’s attorney, said if no agreement is reached on renewing Curtin’s contract, which expires May 31, and on deciding which property he can remove, his client may file a breach-of-contract lawsuit against the town.
“If the town wants him there, he’ll be there,” he said after a hearing on his request for a court order. “If not, they may face legal action. It all depends on what happens in the next few weeks.”
He added that he appreciated the judge’s offer to have the parties come back to court if they are unable to resolve any of the remaining issues.
Curtin said it was unfortunate that the judge denied his bid for a court order.
“We had hoped the judge would put the brakes on this,” he said outside the courtroom in downtown Buffalo. “In the end, it will cost the town taxpayers money. I wish we could come to terms.”
Asked why the Town Board voted last month to terminate his contract and seek another vendor, he said, “They don’t like me.”
He said the town deputy superintendent of buildings and grounds last year had harassed his workers and made it difficult to run the business, Woody’s Beach Club and Taqueria, allegations that he said would be detailed if he sues.
Asked if he will sue, Curtin said, “I’ll do whatever I have to do to protect my assets.”
Gregory Zini of the Damon Morey law firm, who represented the town at the hearing along with Town Attorney Walter L. Rooth III, declined to comment after the hearing, citing town policy.
The Town Board voted March 10 to terminate the contract with Curtin’s Woodlawn Beach Entertainment, which has operated the concessions there for three years, and to seek bids for running the concessions business.
The contract provides for Curtin to renew the contract for two three-year terms after the 2013 season. It also allows either party to terminate the agreement with 90 days’ written notice.
Curtin said the town has not given him such a notice or a reason for terminating his contract.
But Zini said in court that the contract was terminated because the town and Curtin were unable to agree on the town’s proposal to raise the share of gross sales that Curtin pays to the town from 2 percent to 5 percent.
The town notified Curtin last summer that the base rent of $4,000 would be going up 20 percent as allowed under the contract, and he notified the town in September he was seeking a three-year renewal. But the town said it wanted to renegotiate the terms.
Curtin complained in November that the town had changed the locks at the concession area, and he did not have access to his equipment, according to court papers. Affidavits filed in State Supreme Court also said the town told him in December that it wanted to renegotiate the terms of the base fee and increase the percentage of sales proceeds going to the town.
Curtin said in court documents he met with town officials in late February and was able to remove some equipment March 28, but not all of it.
He said today that structures he had built on the beach such as a cabana bar, kitchen shed and stage with sound system are among the property that the town says he cannot remove.
Meanwhile, the Town Board met Wednesday night and reviewed 11 bids to run the concessions but did not select a vendor.