The U.S. Court of Appeals, Second District, on Monday, overturned a statute of limitations ruling by a lower court and reinstated a lawsuit brought by Michael Nolan, a former Western Regional Off-Track Betting Corp. chief operating officer, against the public benefit company, its former board chair and its current president.
A panel of three judges ruled that Nolan, a longtime WROTB employee until his dismissal in December 2020, filed his Notice of Claim complaint in August 2021, which was within the three-year time period as permitted by law.
The appellate court found that Judge William M. Skretny of the U.S. District Court for the Western District of New York applied the wrong amount of time – a year and 90 days – for Nolan to file.
Yesterday’s action returns the case back to Skretny to consider the other claims made by Nolan, who contends that he was retaliated against by the corporation, former Board Chairman Richard Bianchi and current President/Chief Executive Officer Henry Wojtaszek for sharing information with federal and state authorities as part of an inquiry into practices such as health insurance plans for board members, use of sports tickets and luxury boxes, and awarding of contracts.
An attorney for WROTB today said that he expected Skretny’s decision to be overturned, calling the appellate court’s judgment “just a very technical issue.”
“We had sought to dismiss the complaint on multiple grounds applying to all the claims, but Judge Skretny just focused on one claim in his order. So, his decision in the issue on the appeal was, like, very, very narrow,” said Aaron Saykin of Hodgson Russ LLP of Buffalo. “What happens now is that it’s been remanded back to Judge Skretny to consider, potentially, all of those other grounds that we moved on.”
Saykin said his firm “moved to dismiss every claim, and we had multiple grounds to do it.”
As reported on The Batavian in August 2021, Nolan’s lawsuit calls for $14.5 million in compensatory damages plus Nolan’s reinstatement to his former COO position, reinstatement of full fringe benefits and seniority rights, damages sustained due to the violation including, without limitation, the compensation for lost wages, benefits and other remuneration, and payment of all reasonable costs, disbursements, and attorney's fees.
Steven M. Cohen of Tiveron Law LLC, also of Buffalo, contacted today, said the case “immediately” reverts to Skretny’s courtroom and that “we will see justice done.”
“As the decision indicates, WROTB’s defense acknowledged at the Second Circuit Court of Appeals that they knew the basis for their motion to dismiss was meritless and they were expecting Judge Skretny to be reversed,” Cohen said. “Since they are funded with taxpayer’s money, WROTB has resources to do things like this and wear Michael Nolan down. But we are not going away. We will see justice done. Henry’s political influence has found a limit. “
Cohen added that Gov. Hochul’s decision to dismiss the entire board of directors (in May) “for ethical violations, speaks volumes.”
Saykin said the statute of limitations issue was a Federal (constitutional) claim, while the other claims are State issues that can be heard in State court.
Going forward, he said his firm has asked the court to submit some supplemental briefings on the other issues.
“The court will decide whether to do that and what the timeline will be,” he said. “But we feel very good about all the other arguments that we've made that are yet to be considered.”
Previously: Lawsuit seeks $14.5 million for former WROTB officer
