Whirlpool Jet Boat Tours looks to affirm ownership of Lewiston waterfront property

Village of Lewiston named in court document, but not intended subject of action

By Joshua Maloni

GM/managing editor

Whirlpool Jet Boat Tours has authorized court proceedings seeking to confirm its ownership of Lewiston waterfront property it now leases from the Village of Lewiston.

Roach, Lennon & Brown PLLC attorneys Christopher J. Brown Jr., J. Michael Lennon and Robert E. Ziske Jr. submitted paperwork Feb. 3 in Niagara County Supreme Court for a summons on behalf of their client, Niagara Gorge Jet Boating Ltd. (d/b/a Whirlpool Jet Boat Tours).

The complaint notes “this action is brought pursuant to Article 15 of the New York Real Property Actions and Proceedings Law” to “compel the determination of claims to real property.”

Specifically, the plaintiff contends Niagara River water lot 5, water lot 6 and part of water lot 7 (the boat-staging and docking areas) have an uninterrupted chain of ownership dating back to the 1830s – and continuing today via Whirlpool Jet Boat Tours. Possession was verified in the abstract of title and confirmed through a land survey.

The Village of Lewiston is named in the complaint, as it is the overseer of said state land.

Though a lease to use the water lots was agreed upon between the municipality and WJBT in November 2002, the plaintiff contends that, throughout the term of the contract, it “made required lease payments to the Village under protest and with a reservation of rights, without admitting the Village's right to lease the Premises or any interest of the Village therein. To date, Plaintiff has paid the Village over $400,000 in Lease payments, which were wrongfully received.”

Moreover, “plaintiff has also paid the Village over $125,000 in Village real property tax on the Premises.

“In addition, Plaintiff has paid over $575,000 in County and School tax assessed against the premises.”

The lease is set to continue until Oct. 31, 2042.

Whirlpool Jet Boat Tours vessel file photo.

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The complaint describes the existence of “an actual, justiciable controversy” that “exists between Plaintiff and Defendants concerning the scope, validity, and enforceability” of preexisting easements – easements that suggest the village has "the right, privilege and easement for the use, installation and maintenance of a public recreation area including docking for thirty (30) boats and appurtenances thereof,” though the village rights do not include “authority to lease, sublease, or collect rents or payments for use or enjoyment from adjacent upland owners, including Plaintiff's upland Premises, adjacent to the Niagara River.”

The complaint continues, “Pursuant to CPLR $3001, Plaintiff seeks a declaration that: (i) the Easement is invalid, void ab initio, or unenforceable as against Plaintiff's fee interest; (ii) Defendants possess no lawful authority under any Easement to lease, sublease, charge rent, or impose fees upon Plaintiff or the Premises; and (iii) any rights claimed by Defendants under the Easement that purport to burden or encumber the Premises are extinguished.”

Furthermore, the complaint states, “The Village possessed no lawful authority, whether under the Easement, under State law, or through any independent property interest to lease, sublease, license, or confer possessory or landlord rights in the Premises. The Village's claimed authority rests solely on the Easement, which conveyed no such rights and expressly preserved the superior fee and riparian rights of adjacent upland owners, including Plaintiff.

“Because the Village lacked any ownership, possessory interest, or delegated statutory authority in the Premises, the Village could not create, assign, or enforce a Lease concerning the Premises as against Plaintiff's fee title.

“Pursuant to CPLR §3001, Plaintiff seeks a declaration that the Lease and any purported renewals, extensions, amendments, or assignments are void ab initio, unenforceable, and of no force or effect as against Plaintiff, and that the Village has no authority to assert any landlord, lessor, or possessory rights in the Premises.”

The plaintiff seeks “title to the Premises, free of all claims, and seeks money damages for wrongful payment of rent, or in the alternative, wrongful payment of taxes, and extinguishment of the Lease and Easement interests.”

In an email, Whirlpool Jet Boat Tours President John Kinney stressed the dispute is ultimately with the state of New York, and not the Village of Lewiston. The municipality is named because it's proper to list all parties who have a connection with overseeing the lands in dispute.

"Whirlpool Jet Boat Tours has commenced legal proceedings regarding its long-standing property ownership of the waterfront lands in Lewiston, New York,” Kinney said. “As this is an ongoing legal matter, we are unable to comment further at this time. We remain committed to operating responsibly within the community and respecting the judicial process."

The popular Whirlpool Jet Boat Tours operates seasonally at 115 S. Water St., Lewiston.

•Find the summons and complaint on the New York State Unified Court System website.