That distinction was at the heart of a 20-minute argument in state Supreme Court yesterday, during which attorney George Locker, who represents eight rent-stabilized tenants in two buildings within the Atlantic Yards footprint, [updated/corrected 7:20 am] unsuccessfully tried to vacate the decision that rejected his request that the ESDC hold a new hearing to re-approve the project.
Locker wanted state Supreme Court Justice Jane Solomon to consider Lago's statement as a reason to vacate the decision in the case, which was argued last June and decided last September.
"I don't get it," Solomon said, noting that Lago's statement came after the case was argued.
Locker argued that Lago's statement backed up his claim, made last year, that the State Funding Agreement, which allows 12 years to build Phase 1 and provides no timetable for Phase 2, changed the project when it was signed in September 2007. Solomon, in her decision, had glaringly ignored the State Funding Agreement.
Locker told the judge that various promises regarding Atlantic Yards--a Frank Gehry arena, 16 towers, and open space--are "all gone."
"As of when?" asked Solomon.
The ESDC, Locker said, "has kept that a secret. We have to grasp at public statements."
He reminded Solomon that Lago's statement came well after the decision in the case at hand. "You have to identify evidence that existed at the time of the judgment," he said.
Locker attempted to bring up criticism of the ESDC by Appellate Division Justice James Catterson, who slammed the authority in his concurrence in the case challenging the AY environmental review. He said the ESDC was not fulfilling its duty to be forthcoming.
Solomon was not convinced. From the bench, she denied the motion, saying Lago's statement came well after the case was heard.
After the hearing, however, Locker was nonplused. Given that the ESDC is expected to issue a revision of GPP on June 24, a new public hearing would in fact be held, thus mooting his appeal.