A legal challenge to close and force relocation of Amigone Funeral Home's crematorium in the Town of Tonawanda was dismissed Friday morning in State Supreme Court. While the attorney representing the funeral home successfully convinced a judge to side with his arguments, the attorney who filed the action on behalf of neighbors says he's considering another strategy.
Amigone's crematorium, which had been shut down in 2012, was reopened last year after the business invested in upgrades to address the complaints which closed the facility and then got a new state permit.
In court, attorney Dennis Vacco told Justice Joseph R. Glownia that the arguments put forth by the plantiffs, represented by Kevin Stocker, were outdated and thus irrelevant. He referred to the lawsuit as a "third bite at the apple" and relied on the "same tired false complaints."
"It's absolutely a false canard," Vacco said. "It is so totally false that this new facility, which is under the auspices of the (Department of Environmental Conservation) and under the watchful eye of the DEC, is still in some way, shape or form doing what they claimed it did in 2011."
Neighbors say what happened then is happening now. They complain that human ash soot discharges from the stack, along with toxic substances they claim causes irritation. They also say when the wind is right, they can smell burning human flesh. They also point out that upon gaining a new permit to operate the crematorium last year, they also gained permission to increase the number of bodies cremated on the site.
"It's very irritating to the eyes when you go outside. You immediately smell it," said Robin Stein, whose property is adjacent to the funeral home grounds. "You can't spend any time outside because of the irritation. I also worry because I have pets and what's landing on the ground. Mr. Vacco can say that the new device they have in there doesn't cause any problems. Well, he doesn't live there. He doesn't smell it. He doesn't see it on his window sills."
Vacco, who was joined by a half dozen other attorneys representing the State Attorney General's Office, Erie County and Town of Tonawanda, provided several arguments to Judge Glownia as to why the lawsuit needed to be dismissed. Among his arguments was that the entity actually holding the permit was not properly served, even if Amigone personnel were handling the crematory services.
"Sheridan Park, Inc. is the permit holder," Vacco explained. "The court determined, in accordance with my argument and our papers, that Mr. Stocker did not properly serve Sheridan Park. So, Sheridan Park as a defendant was not properly before Judge Glownia today in these proceedings. If he doesn't have jurisdiction, he can't hear the case."
Vacco also argued that neighbors failed to file any challenges to the permit within the four-month period after it was issued. Stocker, standing with neighbors outside the courtroom, says neighbors were not properly guided by the state in that matter.
"Speaking for the residents, and correct me if I'm wrong, they felt the Attorney General's Office was representing them," Stocker said. "They didn't tell them that when they issued the permit, you only have four months to go to court to contest that. They feel they've been misled."
Stocker is consider a new action based on a public nuisance strategy.