Skip to main content

Oral argument *postponed*in case regarding call for new eminent domain findings; ESDC wants case moved to Brooklyn, says Gerges already decided issues

Update: The case has been rescheduled for Tuesday, May 18 at 2:30 pm.

The last Atlantic Yards case to reach oral argument will be heard tomorrow; the issues include whether the belatedly-released Development Agreement can be formally added to the case and whether the case remains before a Manhattan judge already critical of the Empire State Development Corporation (ESDC) or moved to a Brooklyn judge who has ruled without question in the ESDC's favor.

The case, known as Peter Williams Enterprises, et al., vs. New York State Urban Development Corporation (aka ESDC), will be heard at 11 am at 60 Centre Street, room 335, before Supreme Court Justice Marcy Friedman.

The Development Agreement

The plaintiffs argue that the ESDC should not have relied on the 2006 Determination and Findings (D&F) to exercise eminent domain but instead should have issued a new D&F describing the public use to be served by the project as of 2010, given that the Development Agreement, among other documents, points to a much longer buildout.

I previewed the arguments on 4/9/10 and covered the brief hearing on 4/12/10; as noted below, a major pending issue is whether the case should be moved to Kings County Supreme Court Justice Abraham Gerges, who already ruled against similar arguments in the effort to block condemnation, but didn't evaluate the Development Agreement.

As for the Development Agreement, Friedman is already considering it in motions to reopen a separate case challenging the legitimacy of the claimed ten-year buildout. She had ruled against the petitioners, two coalitions of community groups, but had refused to open the record to the Development Agreement, released in late January.

Even as construction proceeds on the arena, the fundamental question, to attorney Matthew Brinckerhoff (who represents petitioners in the D&F case), is whether the ESDC will succeed in its "bad faith attempt to conceal the true nature of the Atlantic Yards Project from Petitioners and the public at large until after the time to challenge it has expired."

Plaintiffs dwindle

The case was filed by property owners and a leaseholder subject to eminent domain but, after three of those owners (Williams, Daniel Goldstein, and Freddy's Bar & Backroom) reached settlements after title was transferred to the ESDC, essentially two plaintiffs remain.

They are companies owned by Henry Weinstein, longtime owner of property at the corner of Pacific Street and Carlton Avenue since transferred by eminent domain (but still in the valuation phase), as well as The Gelin Group, purportedly the owner of a house on Dean Street that was originally targeted for eminent domain but is now scheduled for an unspecified later phase.

The latter property was not part of the previous case case before Gerges.

ESDC argument

In a legal affirmation (documents below), ESDC attorney Philip Karmel states petitioners' attorney Matthew Brinckerhoff "made each of the arguments he is now presenting" before Gerges but they were rejected as meritless.

That's not quite so, because Gerges didn't evaluate the Development Agreement, as noted in previous court papers.

Karmel, pointing out that ESDC now holds title to the property formerly owned by the Phase 1 petitioners, says the case should go back to Brooklyn, according to the Eminent Domain Procedure Law (EDPL).

It also would serve the goal of judicial efficiency, he argues, given that Gerges is already familiar with the issues and that a transfer "would ensure that the inevitable appeal" would go to the Appellate Division, Second Department, which already has jurisdiction over the potential appeal of the condemnation decisions.

Beyond that, for petitioners other than The Gelin Group (a limited liability company representing a household), the claims had already been raised and dismissed, and thus can't be re-litigated. He notes that, while The Gelin Group claims to own 491 Dean Street, city records indicate another owner.

Petitioners' response

In response, Brinckerhoff points out that neither the claims nor the issues apply to The Gelin Group, so the case shouldn't be transferred to Brooklyn. He acknowledges that another party owns the building but "Gelin occupies the premises" and has been authorized to challenge the attempt at condemnation.

He accuses the ESDC of "the unseemly attempt to judge shop," a nod to the record in which Gerges has ruled fully for the state agency, while Friedman, in an March ruling upholding the ESDC's timetable, nevertheless slammed the ESDC's "deplorable lack of transparency."

He writes:
Once it is recognized that Petitioner Gelin has the unfettered right to have the merits of its claim heard by this Court, Respondent's motion serves no purpose.
And only after Gerges issued his opinion backing the ESDC did the agency begin arguing that the case belonged in his court, he contends.

Brinckheroff calls Gerges's opinion "as confusing as it is prolix," arguing that it dismissed the petitioners' claims "on statute of limitations grounds that have no application here."

He concludes that the motion to dismiss should be denied, and the cross-motion for leave to amend the petition--to add the Development Agreement so it's part of a record for appeal--should be granted:
Respondent will then, finally, after years of stonewalling, be required to affirm or deny Petitioners' detailed factual allegations, including many that have only recently come to light due to Respondent's bad faith attempt to conceal the true nature of the Atlantic Yards Project from Petitioners and the public at large until after the time to challenge it has expired.
ESDC response

In response, Karmel states that Brinckerhoff's affirmation "fails to provide any compelling justification for ignoring the directive... that a proceeding affecting title to real property be litigated in the county in which any part of such property is located."

Moreover, "principles of judicial economy" mean that the claims of the three remaining petitioners should be heard in one proceeding, he says.

Also, Karmel notes that there's no proof that Gelin even has a leasehold interest in the property given that the address for service of process on Gelin is in another neighborhood--and that he has not received a promised affidavit that was supposed to substantiate Gelin's role.

Karmel argues that Gerges did reach the merits of the claims, though he doesn't address the details of the Development Agreement.

The latter is cited in an affirmation by Develop Don't Destroy Brooklyn attorney Jeff Baker in the other case before Friedman; Brinckerhoff included that affirmation as an exhibit.

Karmel says the issues regarding the Development Agreement have already been addressed in previous motions, so the Baker affirmation was gratuitous.
Karmel Affirmation in Support of Motion to Change Venue

Affirmation by Matthew Brinckherhoff in Opposition to ESDC Motion to Change Venue

Reply Affirmation by Philip Karmel Regarding ESDC Motion for Change of Venue

Comments

Popular posts from this blog

Barclays Center/Levy Restaurants hit with suit charging discrimination on disability, race; supervisors said to use vicious slurs, pursue retaliation

The Daily News has an article today, Barclays Center hit with $5M suit claiming discrimination against disabled, while the New York Post headlined its article Barclays Center sued over taunting disabled employees.

While that's part of the lawsuit, more prominent are claims of racial discrimination and retaliation, with black employees claiming repeated abuse by white supervisors, preferential treatment toward Hispanic colleagues, and retaliation in response to complaints.

Two individual supervisors, for example, are charged with  referring to black employees as “black motherfucker,” “dumb black bitch,” “black monkey,” “piece of shit” and “nigger.”

Two have referred to an employee blind in one eye as “cyclops,” and “the one-eyed guy,” and an employee with a nose disorder as “the nose guy.”

There's been no official response yet though arena spokesman Barry Baum told the Daily News they, but take “allegations of this kind very seriously” and have "a zero tolerance policy for…

Behind the "empty railyards": 40 years of ATURA, Baruch's plan, and the city's diffidence

To supporters of Forest City Ratner's Atlantic Yards project, it's a long-awaited plan for long-overlooked land. "The Atlantic Yards area has been available for any developer in America for over 100 years,” declared Borough President Marty Markowitz at a 5/26/05 City Council hearing.

Charles Gargano, chairman of the Empire State Development Corporation, mused on 11/15/05 to WNYC's Brian Lehrer, “Isn’t it interesting that these railyards have sat for decades and decades and decades, and no one has done a thing about them.” Forest City Ratner spokesman Joe DePlasco, in a 12/19/04 New York Times article ("In a War of Words, One Has the Power to Wound") described the railyards as "an empty scar dividing the community."

But why exactly has the Metropolitan Transportation Authority’s Vanderbilt Yard never been developed? Do public officials have some responsibility?

At a hearing yesterday of the Brooklyn Borough Board Atlantic Yards Committee, Kate Suisma…

No, security guards can't ban photos. Questions remain about visibility of ID/sticker system.

The bi-monthly Atlantic Yards/Pacific Park Community Update meeting June 14, held at 55 Hanson Place, addressed multiple issues, including delays in the project, a new detente with project neighbors,concerns about traffic congestion, upcoming sewer work and demolitions, and an explanation of how high winds caused debris to fly off the under-construction 38 Sixth Avenue building. I'll have more coverage.
Security issues came up several times at the meeting.
Wayne Bailey, a resident who regularly takes photos and videos (that I often use) of construction/operations issues that impact residents, asked representatives of Tishman Construction if the security guard at the sites they're building works for them.
After Tishman Senior VP Eric Reid said yes, Bailey asked why a guard told him not to shoot video of the site, even though he was on a public street.

"I will address it with principals for that security firm," Reid said.
Forest City Ratner executive Ashley Cotton, the …

Atlantic Yards/Pacific Park graphic: what's built/what might be coming + FAQ (post-dated pinned post)

This graphic, posted in January 2018, is post-dated to stay at the top of the blog. It will be updated as announced configurations change and buildings launch. Note the unbuilt B1 and the proposed shift in bulk to the unbuilt Site 5.

The August 2014 tentative configurations proposed by developer Greenland Forest City Partners will change. The project is already well behind that tentative timetable.

How many people are expected?

Atlantic Yards/Pacific Park has a projected 6,430 apartments housing 2.1 persons per unit (as per Chapter 4 of the 2006 Final Environmental Impact Statement), which would mean 13,503 new residents, with 1,890 among them in low-income affordable rentals, and 2,835 in moderate- and middle-income affordable rentals.

That leaves 8,778 people in market-rate rentals and condos, though let's call it 8,358 after subtracting 420 who may live in 200 promised below-market condos. So that's 5,145 in below-market units, though many of them won't be so cheap.

As …

The passing of David Sheets, Dean Street renter, former Freddy's bartender, eminent domain plaintiff, and singular personality

David Sheets, longtime Dean Street renter, Freddy's bartender, eminent domain plaintiff, and singular personality, died 1/17/18 in HCA Greenview Hospital in Bowling Green, KY. He was 56.

There are obituary notices in the Bowling Green Daily News and the Wichita Eagle, which state:
He was born in Wichita, KS where he attended public Schools and Wichita State University. He lived for many years in Brooklyn, NY, and was employed as a legal assistant. David's hobby was cartography and had an avid interest in Mass Transit Systems of the world. David was predeceased by his father, Kenneth E. Sheets. He is survived by his mother, Wilma Smith, step-brother, Billy Ray Smith and his wife, Jane all of Bowling Green; step-sister, Ellen Smith Alexander and her husband, Jerry of Bella Vista, AR; several cousins and step-nieces and step-nephews also survive. Memorial Services will be on Monday, January 22, 2018 at 1:00 pm with visitation from 10:00 am to 1:00 pm Monday at Johnson-Vaughn-Phe…

Some skepticism on Belmont hockey deal: lease value seems far below Aqueduct racino; unclear (but large?) cost for LIRR service

As I wrote for The Bridge 12/20/1, The Islanders Say Bye to Brooklyn, But Where Next?, the press conference announcing a new arena at Belmont Park for the New York Islanders was "long on pomp... but short on specifics."

Notably, a lease valued at $40 million "upfront to lease up to 43 acres over 49 years... seems like a good deal on rent for the state-controlled property." Also, the Long Island Rail Road will expand service to Belmont.

That indicates public support for an arena widely described as "privately financed," but how much? We don't know yet, but some more details--or at least questions--have emerged.

An Aqueduct comparable?

Well, we don't know what the other bid was, and there aren't exactly parcels that large offering direct comparables.

But consider: Genting New York LLC in September 2010 was granted a franchise to operate a video lottery terminal under a 30 year lease on 67 acres at Aqueduct Park (as noted by Gov. Andrew Cuomo).

As…

Barclays Center event June 11 to protest plans to expand Israeli draft; questions about logistics

At right is a photo of a poster spotted in Hasidic Williamsburg right. Clearly there's an event scheduled at the Barclays Center aimed at the Haredi Jewish community (strict Orthodox Jews who reject secular culture), but the lack of English text makes it cryptic.

The website Matzav.com explains, Protest Against Israeli Draft of Bnei Yeshiva Rescheduled for Barclays Center:
A large asifa to protest the drafting of bnei yeshiva in Eretz Yisroel into the Israeli army that had been set to take place this month will instead be held on Sunday, 17 Sivan/June 11, at the Barclays Center in Downtown Brooklyn, NY. So attendees at a big gathering will protest an apparent change of policy that will make it much more difficult for traditional Orthodox Jewish students--both Hasidic (who follow a rebbe) and non-Hasidic (who don't)--to get deferments from the draft. Comments on the Yeshiva World website explain some of the debate.

The logistical questions

What's unclear is how large the ev…