Tuesday, February 01, 2011

DDDB in court Thursday, seeking sanctions from ESDC/FCR and their lawyers for withholding Development Agreement

Remember how, last March, Supreme Court Justice Marcy Friedman criticized the Empire State Development Corporation's (ESDC) “deplorable lack of transparency” and acknowledged that the ESDC’s use of a ten-year timeframe for the project buildout in the Modified General Project Plan (MGPP) was supported “only minimally”?

And in a decision last November, she criticized the ESDC for withholding the Development Agreement, which gives a 25-year outside date to build the project?

The ESDC, in response, issued findings that it wouldn't make a difference in terms of impact. The two coalitions bringing suit, Develop Don't Destroy Brooklyn and BrooklynSpeaks, may be in court later this month challenging those findings.

Legal costs sought, hearing Thursday

Before then, DDDB, but not BrooklynSpeaks, has filed a motion to require the ESDC and FCR, and their lawyers, "to pay DDDB for the costs of the additional legal work which DDDB's lawyers had to perform because ESDC and FCR improperly withheld a key contract from the court last year."

DDDB is asking supporters to attend the hearing Thursday at 9:30 am:
New York County Supreme Court
60 Centre Street [Map]
Room 335
Manhattan

DDDB states:
A grassroots organization such as ours should not be forced to suffer financial consequences because of the misconduct of a state agency.

...In December 2010, DDDB filed its motion to the court to award it the additional legal expenses incurred in making its motion to reargue the case, on the ground that the motion would not have been necessary if ESDC and FCR had disclosed their development agreement to the court as they were legally obligated to do.

The legal basis of DDDB's motion is a Court Rule which permits the court to assess legal expenses against a party or attorney whose litigation conduct "is completely without merit in law" or "is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another", or who "asserts material factual statements that are false.
Paying the consequences

The fact that BrooklynSpeaks has not joined the motion suggests that such a tactic, which is on the aggressive side, might not sit well with the judge.

Then again, should the ESDC and FCR get away with the failure to disclose the Development Agreement?

It seems that, so far, they have been unscathed and the longer the case lingers, the less likely a judge would be willing to intervene in construction of the arena and ancillary facilities.

In November, Friedman herself acknowledged in a footnote some level of judicial responsibility:
The court notes that petitioners, not ESDC, brought the Development Agreement to this court’s attention after submission but before decision of the Article 78 petitions. The court rejected the proffer based on its misapprehension that petitioners were raising a new argument, not before ESDC at the time of its approval of the MGPP, that the Development Agreement that was subsequently negotiated did not provide adequate guarantees that the Project would be built within the 10 year period. As held above, the Development Agreement is not received on that issue but in order to correct the incomplete record furnished to this court as to the terms regarding deadlines that would be included in the Development Agreement and, hence, the reasonableness of ESDC’s use of a 10 year build-out in approving the MGPP.
The Development Agreement, signed 12/23/09, had clearly been delayed. Part of the master closing documents, it was not released until 1/25/10, was six days after a hearing in a case challenging the timetable was heard before Friedman.

It was also about three weeks after the ESDC told me the documents would be made available.

Doesn't that seem a little suspicious?

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