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Setback for renters’ case, as state judge boots suit

One of the “smaller” Atlantic Yards lawsuits was dismissed yesterday in state trial court, as the judge—as he strongly hinted in oral arguments March 13—ruled that the case belonged instead in the appellate division, where challenges to eminent domain determinations are heard, but without the legal muscle that could be mustered in trial court.

This case involves 13 tenants in two rent-stabilized buildings in the Atlantic Yards footprint. It is separate from two pending cases organized by Develop Don’t Destroy Brooklyn and allies: a federal court challenge to eminent domain and a state court challenge to the state’s environmental review of Atlantic Yards.

The tenants, represented by attorney George Locker, claim that their landlord, Forest City Ratner, should be subject to the tougher regulations of the New York State Division of Housing and Community Renewal (DHCR), rather than remain free to convey the buildings to ESDC for “friendly condemnations.” Locker also argues that the creation of private roads for the project requires a jury trial—an issue never tested in court.

In the trial court, the Supreme Court, the plaintiffs would have more of an opportunity, via discovery, to extract documents bolstering their case.

Renters are owners

In a seven-page opinion, State Supreme Court Justice Walter B. Tolub, however, ruled in favor of the motion to dismiss filed by the Empire State Development Corporation (ESDC).

The plaintiffs had argued that, because they weren’t owners, they didn’t have standing to bring a case before the appellate division. Tolub cited a statute that includes “any persons… aggrieved by the condemnor’s determination” as having standing.

“Plaintiffs, for the purposes of a bringing an [appellate] proceeding, are condemnees,” Tolub wrote, saying that “a lawful interest” as tenants constitutes ownership under state law. While the plaintiffs cited two cases to support their argument, Tolub noted that the petitioners in those case were not tenants of the lots subject to condemnation.

He said the case belongs in the appellate division, where the plaintiffs have already brought a separate case challenging the state’s relocation offer, charing that it doesn’t provide comparable housing as required by the law.

Sanctions and appeal

Tolub wrote that he “seriously considered the question of costs and sanctions” because “this action was brought both in the wrong church and the wrong pew,” as well as “in derogation of existing case law.” However, he declined to impose sanctions, nothing that the action was “apparently brought in good faith.”

Rather, he wrote, “an award for costs is sufficient,” which apparently applies to the court fees incurred by the defense.

Before that, however, Locker will appeal Tolub’s decision. “I wasn’t surprised with the result,” he said yesterday. “I was surprised with the analysis.”