Surreal morning in court: finally, belatedly, a wholesale assault on the Atlantic Yards project, but before a detached judge

It was, actually, a little surreal.

Yesterday in Kings County Supreme Court emerged the most complete—and, to the Empire State Development Corporation (ESDC), completely off-base—assault on the Atlantic Yards project ever heard in any courtroom, but it occurred before a handful of spectators and a single, not-so-engaged judge, well after most people, officials, and editors had relegated Atlantic Yards to the status of old news.

The case involves only three plaintiffs (two of whom are corporate entities owned by longtime footprint property owner Henry Weinstein), none of whom were in the courtroom. However, in challenging the ESDC to issue a new Determination & Findings because the justifications for eminent domain had changed markedly since 2006, it was essentially a challenge to the project itself. Supreme Court Justice Abraham Gerges faced dueling motions to both dismiss the case and expand the record.

With charges that the project timetable is “a complete fantasy” and the project is “a betrayal of the public trust” and “an embarrassment to democracy,” it was, perhaps, the argument that attorney Matthew Brinckerhoff should’ve made last October before the Court of Appeals, the state’s highest court, in a stately setting before engaged judges and a packed house. But, rather than get to the fundamentals of the sweetheart deal, that oral argument ran aground on debates about the contours of the state’s public use clause and whether the case should have gone to the high court in the first place.

Also, as Brinckerhoff stressed yesterday in court, some of the key elements of the ESDC’s behavior came to light only after the Court of Appeals’s decision in November, as well as the previous, seemingly dispositive appellate ruling: “They timed their disclosures in order to avoid judicial review.”

ESDC attorney Philip Karmel, unbowed, responded forcefully and sometimes dismissively to Brinckerhoff’s kitchen-sink arguments, some of which were not exactly on point. Curiously enough, however, Karmel never explained why the crucial Development Agreement, released in January weeks after it was publicly promised, was withheld for so long.

(The case is officially known as Peter Williams Enterprises, Inc et al. v. Empire State Development Corporation, but three of the original six petitioners, including Williams, Freddy's Bar & Backroom, and Daniel Goldstein, left the case as a condition of reaching eminent domain settlements. Besides the Weinstein entities, the other petitioner is The Gelin Group, the corporate name for the owner, or at least occupier, of a home on Dean Street scheduled for condemnation in a later phase.)
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Starting off

Brinckerhoff began by thanking Gerges for giving him the time to argue and “for taking this matter seriously,” a statement that seemed a bit aspirational, aiming to goad Gerges into doing exactly that.

Brinckerhoff said he was acting for his clients, for all those affected by the project, and “frankly, for the public at large,” who’ve suffered “a really profound betrayal of the public trust by the respondent Urban Development Corporation [aka ESDC] in league with the developer.”

Gerges kept his poker face. There has to be a point where new eminent domain findings must be issued, Brinckerhoff said, and “we bitterly disagree at where that point will be.”
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“Let me be clear about what I’m attempting to do,” declared Brinckerhoff, whose pepper-and-salt beard and sometimes unruly curls give him somewhat more of a professorial than corporate air, though his boutique law firm does quite well. “There’s a whole set of facts found in the document,” and none of such new information was disclosed until after the petition in this case was filed in January. Such facts, “put the nail in the coffin on what’s been going on for years.”

And that, he said, is why his clients should be granted, at a minimum, leave to amend the record to add such facts “deliberately concealed from us.
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“[ESDC attorney] Mr. Karmel says he categorically denies a ‘deplorable lack of transparency,’” Brinckerhoff said, playing a bit of a trump card. “One thing you didn’t hear is an explanation of why their wonderful disclosures were timed in a way to avoid public review.”

“They love transparency--where’s the proof?” he asked incredulously. “It’s not there.”

“It’s clear now, crystal clear, it was part of a purposeful plot to deceive the public, deceive the judiciary,” Brinckerhoff said. “ So far it’s been successful. To say he categorically denies it is offensive.”

Addressing Gerges, he implored, “I think, I hope, I pray that the court recognizes we should be allowed to put these facts in a petition and have them deny it.”
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