Monday, April 12, 2010

Case challenging ESDC's 2006 eminent domain findings put on hold until May 12; ESDC asks for case to be moved or dismissed

So, what happens to the last Atlantic Yards case to face an initial hearing (as opposed to an appeal)? As I explained earlier today, the hearing this morning in state Supreme Court in Manhattan was brief and inconclusive, with a new day--May 12, at 11 am--set for arguments on new motions.

(Photos and set by Tracy Collins.)

The six plaintiffs--five of them already having seen title transfer to the Empire State Development Corporation (ESDC)--want the agency to issue a new Determination & Findings (D&F) to justify the use of eminent domain, given that Atlantic Yards has changed so much since the 2006 D&F was filed.

The ESDC wants to move the case from state Supreme Court Justice Marcy Friedman in Manhattan to Justice Abraham Gerges in Brooklyn, contending that, given that he's overseeing the condemnation process, it's the appropriate venue, and he's already resolved the issues in a very similar case.

(At center in photo is ESDC outside counsel Philip Karmel; at right is in-house counsel Joe Petillo.)

Friedman said she'd allow motions making such a request to be filed, but said that no inference should be drawn from her action. She also admonished the parties not to file any new motions without the "prior leave of the court."

Which judge sought

Last month, while ruling for the ESDC in a case challenging the agency's approval of the 2009 Modified General Project Plan, Friedman nevertheless criticized the ESDC's "deplorable lack of transparency."

So presumably the ESDC would rather face a judge other than Friedman.

There was a relatively small crowd of interested onlookers, but among them were three lawyers representing Forest City Ratner. At center is the firm's general counsel, David Berliner; the others are outside counsel: Richard Leland at left and Jeffrey Braun at right.

The plaintiffs' take

Matthew Brinckerhoff, a lawyer for the property owners, however, says that that shouldn't happen because, among other things, one of the property owners in this case was not a party to the previous case and the legal grounds are different.

I interviewed him after the hearing. (Video shot by Jonathan Barkey.)



Brinckerhoff was somewhat sarcastic about the ESDC's request to make another motion and take another month on the case, given that the plaintiffs have long been accused of delay.

While the ESDC wants to transfer the case to Gerges, and also argue that the plaintiffs are precluded from a second bite at the apple, Brinckerhoff said "it's not the same case, it's not final, the parties are not the same. All the things you look at to determine whether that kind of doctrine applies--don't exist here."

"In order to be final, you have to have litigated the same issue, under the same circumstances, to conclusion," he added. "We filed a notice of appeal of Justice Gerges's decision in the Second Department. There's no final order. So it's no more appropriate than it was a month ago, when they could've made the same motion."

He suggested that Gerges's "fundamental ruling" was that the property owners' arguments were untimely, but would have been timely had the case been filed by January 19: "Well, guess what, this case was filed on January 19, it's unquestionably timely."

Meanwhile, Brinckerhoff, as he said last week, has filed a specific motion to put the Development Agreement in the record, so a judge can evaluate the impact of provisions that suggest that the ESDC gives Forest City Ratner 25 years to complete the project rather than require it to use "commercially reasonable" methods to finish the project in a decade.

If the project is likely to take 25 years, the argument goes, then the 2006 D&F--which presumed a much more rapid removal of blight--is invalid.

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