A state Supreme Court justice has allowed Hudson River Rafting Co. to remain in business provided the company live up to a number of conditions, including paying a $12,000 civil penalty and posting a $50,000 performance bond.
Justice Richard Giardino ordered that the North Creek company no longer allow passengers in whitewater rafts, kayaks or other craft to “captain their own boats” on the Hudson River or other river where licensed guides are required.
The company’s lawyer, Jason Britt, said Hudson River Rafting Co. owner Patrick Cunningham does plan to re-open the business.
It has not offered rafting trips since the state received a temporary injunction last fall, in the wake of the drowning death of a Hudson River Rafting Co. raft passenger.
The spring rafting season on the Hudson began several weeks ago. It was unclear when Cunningham would be able to meet the conditions to re-open, Britt said. He was investigating options to post the performance bond.
Cunningham did not return a phone call for comment Monday.
Elizabeth DeBold, a spokeswoman for the state Attorney General's Office, called the decision "a win for New Yorkers."
"We expect the injunction issued will have a positive effect on consumers and the business practices of the Hudson River Rafting Co," she said.
Giardino dismissed a portion of the state’s lawsuit that accused Cunningham of false advertising, and did not order that restitution be made to disgruntled customers.
The state effort comes after a Hudson River Rafting Co. customer, Tamara F. Blake, 53, of Ohio, drowned on the Hudson on Sept. 27, after falling out of a raft into the river.
The Hudson River Rafting Co. guide, Rory K. Fay, 37, of North Creek, was intoxicated and pleaded guilty to criminally negligent homicide. Cunningham has been charged with reckless endangerment in connection with other ill-fated rafting trips where rafts were sent down the Hudson without guides or left on the river without guides.
He was acquitted of charges after a trial earlier this year but other counts remain pending.
Giardino found the company did break the law, but ruled that the remedy was to allow the company to remain in business with conditions met.
“This court has also taken into consideration the fact that the respondent, Patrick Cunningham, was a pioneer in the industry and the fact that he has provided guided river excursions with rafts, kayaks and canoes for over thirty years,” the judge wrote. “Similarly, the court has considered the fact that over those thirty-plus years respondents have successfully guided thousands of customers down various rivers without incident.”
Giardino ordered the company to pay $1,200 civil penalties for each of 10 instances where he found that rafts were sent down the river without licensed guides or where company raft passenger vehicles were operated by drivers without driver’s licenses.
Both the state and Cunningham could appeal the decision. The state does not plan to appeal, and Britt said he had no comment on a possible appeal.
The state Department of Environmental Conservation also suspended Cunningham's rafting license last fall, and the status of that license was unclear Monday.