Appellate Division upholds decision permitting construction ***** CORRECTION PUBLISHED MARCH 24, 2001 *****

A story Friday included the wrong date for the death of the thoroughbred race horse Charles Kenny Sr. The horse died in October 1993 after he underwent ankle surgery.

KIM MARTINEAU Staff writer Albany An appeals court has upheld a zoning change that paved the way for an office complex to be built in a residentially zoned area in the Albany Pine Bush.

The Albany Common Council gave permission to change the property to commercial in 1999, after the developer, Charles Touhey, threatened to build low-income homes on the 12-acre property at 300 Washington Ave. Touhey’s efforts to develop the property had been repeatedly rebuffed since the 1980s.

Save the Pine Bush, a local environmental group, sued to overturn the zone change. The group blasted the project’s environmental impacts. While the property does not contain indigenous pine bush plants, it is contiguous to the state-protected pine barrens. The group also criticized the project as encouraging suburban sprawl.

In January 2000, state Supreme Court Justice Joseph Teresi upheld the zone change. Nine months later, Save the Pine Bush appealed Teresi’s decision to the Appellate Division of state Supreme Court and sought an order to stop construction. The latter request was dismissed as untimely.

On Thursday, the Appellate Division dismissed the appeal as well. Now that the owner has invested $1 million in the site, the issue is moot, the court ruled. Last summer, Touhey sold the property to Prime Management LLC, which cleared most of the property and started building one of two office towers. One of the buildings is nearly complete, and BBL Construction Services and Phelan, Burke & Scolamiero are scheduled to move in this spring. Phelan, Burke serves as general counsel to BBL and represented Prime Management on the appeal.

Lynne Jackson of Save the Pine Bush said the group is considering an appeal. Save the Pine Bush filed its appeal late, she said, because it had to wait for the city to file its papers.

Also Thursday, the Appellate Division upheld a $100,000 jury verdict awarded to the owner of a thoroughbred race horse that died after undergoing ankle surgery last October. The horse, Charles Kenny Sr., was 3 years old when he was taken to the Equine Clinic at Oakencroft in Bethlehem to have a bone chip removed. While the surgery was a success, the horse died shortly afterward of heart and respiratory failure.

The horse’s owner, Charles Kenny Jr., a former trainer who named the horse after his father, filed a malpractice claim against the clinic. After watching the horse stop breathing as it lay on the operating table, he alleged that the veterinarians made a mistake in administering anesthesia.

At trial, a veterinarian and professor, Dr. Nicholas Dodman, testified that doctors gave the horse the wrong dose of drugs and too much anesthesia. The expert also testified that the veterinarians should have monitored the horse’s vital signs during and after surgery. Last March, the jury decided that F. Richard Lesser, a veterinarian and co-owner of the Equine Clinic, and Mark Meddleton, a veterinarian, had been negligent.

The Appellate Division rejected the veterinarians’ claims that Kenny’s expert was unqualified to give an expert opinion and that there was insufficient evidence of negligence. The court also upheld the horse’s $100,000 value — not $20,000 as the defendants had claimed. In August, the horse had won a six-furlong race at the Saratoga Race Course, finishing with one of the fastest times of the season, said Kenny’s lawyer Jim Bendall. He had placed third in three other races. At trial, a licensed horse breeder called the horse “very well balanced,” and “very fast and sound” and said it was worth $125,000.

The award, with interest, has grown to $160,000.