A guide from the Hudson River Rafting Company takes clients down the Hudson River in North River May 5, 2012 during the White Water Derby.
A state Supreme Court judge Thursday, Oct. 11 issued a temporary restraining order against the Hudson River Rafting Company exactly two weeks after a woman died during one of the company’s rafting trips.
The order prohibits the company and its owner, Patrick Cunningham of North Creek, from operating a business that offers guided rafting excursions on any rivers in New York where guides licensed by the Department of Environmental Conservation (DEC) are required pending the final decision and order in this case.
On Oct. 10 on behalf of Attorney General Eric Schneiderman, state Assistant Attorney General G. Nicholas Garin filed a petition against the Hudson River Rafting Company and Cunningham, alleging that the company and its owner practiced “fraudulent, deceptive, and illegal conduct with their business providing guided river excursions on various New York rivers.” Schneiderman is trying to recover restitution and damages for consumers victimized by the respondents’ alleged practices and to recover penalties and costs.
Justice Richard Girardino issued the restraining order Oct. 11 in Supreme Court at the Fulton County Courthouse in Johnstown (Hamilton County does not have a Supreme Court room). A hearing is scheduled for Oct. 19.
Asked Oct. 12 whether he has any comments regarding the attorney general’s petition or the court order, Cunningham said in a phone interview, “I have zero.”
A 53-year-old Ohio woman died in a rafting accident Sept. 27 on the Hudson River, and her Hudson River Rafting Company guide was arrested after police found him to be intoxicated.
New York State Police responded to Chain Lakes Road in the town of Indian Lake around noon for a report of a missing rafter. The investigation revealed that Rory F. Fay, 37, of North Creek, was operating a raft on the Indian River as a New York state licensed guide employed by the Hudson River Rafting Company. Fay had two passengers in the raft with him: Richard J. Clar, 53, and Tamara F. Blake, 53, both of Columbus, Ohio.
Around 10:20 a.m. on the Indian River, Fay and Blake were ejected from the raft in whitewater conditions. Clar was able to stay within the raft and eventually steer it to the shoreline. Fay was able to swim to the shoreline. Clar and Fay walked to Chain Lakes Road where they were able to obtain assistance. Blake was unable to be located and authorities were notified.
New York State Police Aviation was used to search the river, and Blake’s body was discovered about 5 miles downstream in the Hudson River.
State Police determined that Rory Fay was intoxicated while transporting Clar and Blake on the rafting trip. State Police Captain John Tibbits said through direct observation, officers believe Fay exhibited physical signs of intoxication while they spoke with him.
“Our officers are pretty adept at identifying people who are under the influence,” Tibbits said. “He smelled of alcohol, they way he stood and acted led officers to believe he was intoxicated.”
Fay submitted to a blood alcohol test, and the BAC results will not be available for several weeks, Tibbits said.
Fay was arrested and charged with criminally negligent homicide regarding Blake’s death and remanded to the Hamilton County Jail in lieu of $50,000 bail or $100,000 bond.
The Hudson River Rafting Company has offered rafting trips on the Hudson, Black and Sacandaga rivers since 1981. The attorney general charges that the company has broken the law for:
•repeatedly not providing licensed guides on rafting excursions;
•persistent false advertising;
•repeatedly having employees drive customers on the company’s bus from North Creek to Indian Lake without valid drivers’ licenses for operating a bus;
•and statutory fraud by “misrepresenting the services they provide.”
Under state law, the DEC requires all rafting companies to provide licensed guide for excursions down these rivers.
“Since at least 2007, respondents have repeatedly violated (state law) by providing unlicensed guides for river rafting excursions on the subject rivers,” states the attorney general’s petition.
The violations have included providing guides with no licenses or, in some cases, providing no guides at all. Moreover, the attorney general takes issue with the company’s advertisements stating that they provide “safe” guided river rafting excursions.
“Such advertisements by respondents have been false and misleading in that repeatedly respondents have provided guides who were unqualified, intoxicated, or provided no guides at all for rafting excursions on the subject rivers which are so dangerous that qualified, professional guides are deemed necessary for consumers’ safety,” the petition states.
Consumers have been injured — and one killed — during the company’s rafting trips.
As part of the petition, the attorney general is seeking $5,000 for each violation of the General Business Law (false advertising claims).
A hearing is scheduled for Oct. 19 to show cause for the restraining order.
Cunningham had been indicted in Hamilton County Court on two counts of second-degree reckless endangerment. However, on March 29, that indictment was adjourned “in contemplation of dismissal” until Sept. 29 under three conditions:
•No raft from the Hudson River Rafting Company and/or Patrick Cunningham be operated without a licensed rafting guide, except where there is a written rental agreement that the customer agrees to “captain” his/her own raft;
•No 16-foot raft from the Hudson River Rafting Company and/or Cunningham be operated with more than 12 occupants in the raft, plus the guide;
•And that Cunningham not violate any laws, rules or regulations of the state of New York.
On Sept. 5, Hamilton County District Attorney Marsha Purdue applied to restore the indictment against Cunningham and his company because Cunningham had allegedly violated the March 29 agreement by:
•allegedly leaving his raft — with two customers aboard — 4 miles before the end of a May 27 trip down the Hudson River, essentially leaving them without a guide for a portion of the trip.
•and allegedly sending two customers down the river on Aug. 26 in a “duckie” without a licensed guide and without signing a rental agreement.
A hearing is scheduled for Nov. 20 to determine whether Cunningham violated the March 29 agreement.
(Reporter Katherine Clark contributed to this story.)