With roadway improvements lagging at VA cemetery in Pembroke, lawsuits may follow

Jan. 6—WASHINGTON — Safety improvements to a controversial intersection near the Western New York National Cemetery in Pembroke have fallen behind schedule — and lawsuits may soon result from the U.S. Department of Veterans Affairs' refusal to back such changes before the facility's opening in late 2020.

Both the state Department of Transportation and the VA had promised to implement several changes by December at the intersection, where two Lockport veterans, Arnold Herdendorf and Christopher Rowell, were killed in a collision with a tractor-trailer in September 2021. But both agencies have fallen short of their goal of installing improvements at the corner of Indian Falls Road and Route 77.

Meantime, Buffalo attorney Nate McMurray, the former Democratic congressional candidate, is representing cemetery director James R. Metcalfe II and plans to file a lawsuit early next year, alleging retaliation and discrimination. McMurray is also in discussion with families affected by some of the several crashes that have occurred at the intersection.

Both the delayed highway changes and potential lawsuits follow Buffalo News stories from February. Those stories detailed how Metcalfe and cemetery planner Peter Rizzo fought for improvements to the intersection before the fatal crash, as well as the VA's actions against the two men in response to their fight for highway safety.

In August, the DOT promised to install larger stop signs on Indian Falls Road at the intersection of Route 77, including a placard that says: "CROSS TRAFFIC DOES NOT STOP," as well as larger "INTERSECTION" signs on Route 77.

New signs have been installed, and rumble strips have been installed on Route 77, as promised. But the DOT has not yet fulfilled its promise to eliminate the passing zones on Route 77.

Joseph Morrissey, a DOT spokesman, did not provide a requested update on the status of the agency's planned work at the intersection. But the VA acknowledged it has not met its goal of installing sign-mounted flashing warning signals on both Route 77 and Indian Falls Road by December.

"The VA has awarded a contract and that contractor is now coordinating their design with NYSDOT permitting authorities" for installation of those signs, said Ricardo Da Silva, director of communications for the VA's National Cemetery Administration. "Installation of the concrete footers requires ground temperatures be consistently above freezing so construction will begin as soon as the weather permits us to do so."

Da Silva refused to comment on an internal retaliation complaint that Metcalfe had filed.

"We are unable to discuss personnel matters," he said.

Rizzo and Metcalfe called for safety improvements at the intersection in the spring of 2020, but their supervisors in Washington rejected that move, fearing more highway work would delay the cemetery's opening.

Moreover, VA supervisors transferred Rizzo away from the project and reprimanded Metcalfe for pushing the changes and for communicating with a staffer for Sen. Charles E. Schumer, now the Senate majority leader.

Rizzo, who no longer works for the VA and has settled his retaliation case against the agency, said he was appalled that the agency has not settled with Metcalfe.

"Federal employees are obligated to blow the whistle under the Code of Federal Regulations," Rizzo said. "Federal agencies are obligated to punish those who retaliate against those employees under several federal statutes. Jim and I upheld our end of the bargain," and VA Secretary Denis McDonough should do the same, Rizzo added.

McMurray alleged that the VA not only retaliated against Metcalfe, but also discriminated against him as soon as the cemetery director's Native American background became known.

"After having years and years of career advancement and awards, suddenly when that became clear, he was discriminated against," said McMurray, adding that he hopes to file a lawsuit replete with details on the alleged discrimination next month.

That might not be the only lawsuit on the matter, either. The crash that claimed the lives of Herdendorf and Rowell was just one of several that have occurred at the intersection in recent years.

"There's been multiple injuries at the intersection, and several families reached out to me," including Rowell's, McMurray said.

McMurray said he's concerned that more accidents will happen at the intersection, too, because "nothing has changed."

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