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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

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