SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF NEW YORK

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PETER WILLIAMS ENTERPRISES, INC., Index No. 11116/10

Plaintiff, AFFIRMATION OF
MATTHEW BRINCKERHOFF
-against- IN OPPOSITION TO
DEFENDANTS’ MOTIONS
NEW YORK STATE URBAN DEVELOPMENT TO DISMISS
CORPORATION and BROOKLYN ARENA, LLC,

Defendants.
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MATTHEW D. BRINCKERHOFF, an attorney admitted to practice law in the

State of New York, affirms the following under penalty of perjury:

1. I am a member of Emery Celli Brinckerhoff & Abady LLP, counsel for

plaintiff Peter Williams Enterprises, Inc. (“PWE”). I submit this affirmation in opposition to the

motions to dismiss made, pursuant to CPLR 3211(a)(1) and 3211(a)(7), by defendants New York

State Urban Development Corporation (“UDC”) and Brooklyn Arena, LLC (“Brooklyn Arena”)

(UDC and Brooklyn Arena referred to collectively as “Defendants”).

Preliminary Statement

2. Defendant UDC’s motion “to dismiss” is nothing more than a poorly

disguised motion for leave to amend, nunc pro tunc, the predicate Notice of Public Hearing,

dated July 24 2006, and Determination and Findings, dated December 8, 2006, as required by

EDPL §§ 202, 204, to include to a tax lot number – Lot 7501 – it forgot (or chose not) to include

in its notice and determination even though Lot 7501 was publicly recorded in the records of

Clerk of Kings County and unambiguously delineated with a metes and bounds description as the

tax lot assigned to PWE’s indenture above the plane.

 3. The reason for defendants’ subterfuge is plain; and plainly improper. The

only legally permissible way for it to forcibly acquire Lot 7501 is to do so forthrightly pursuant to

the procedures set forth in the EDPL, as it did for the dozens of other tax lots it acquired by

compulsion and then leased to defendant Brooklyn Arena for $1 a year for 99 years. The UDC is

free to attempt to forcibly acquire Plaintiff’s indenture above the plane by eminent domain, but to

do so it must follow the rules.

4. Rather than simply arrogating to itself the right to steal private property,

the UDC must (i) identify Lot 7501 in a notice of public hearing (pursuant to EDPL § 202) and

hold the hearing, (ii) make the requisite determination and findings of public purpose (pursuant

to EDPL § 204) withing 90 days of the hearing, (iii) commence a vesting proceeding to acquire

title (pursuant to EDPL Article 4) and obtain a vesting order; and (iv) provide just compensation

to PWE.

5. After all, it was Defendant UDC, not PWE, that chose: (1) to provide in

its 2006 Notice of Public Hearing “a list of specific parcels that would be acquired by eminent

domain” by tax block and lot number, and street address; (2) to forego the use of a traditional

metes and bounds description for identifying the properties targeted for acquisition; (3) to issue a

disclaimer expressly warning that the “street addresses are included for ease of reference only,”

and in the “event of any inconsistency between the street addresses and the tax blocks and lots,

the block and lot information shall control”; and (4) to repeat this exact language and pattern in

its 2006 Determination and Findings pursuant to EDPL § 204. It is thus the UDC, not PWE, that

must bear the consequences of its own mistakes.

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 6. No strangers to irony, Defendants now seek to circumvent the very rules

and procedures Defendants utilized to forcibly acquire dozens of other tax lots, including PWE’s

portion of Lot 48 located at 38 Sixth Avenue (an interest that PWE ultimately assigned to Forest

City Ratner, including a release of any claim for just compensation, both of which were

unequivocally limited to that address and tax lot – and nothing more, see below ¶¶ 39-42).

Having benefitted from the power of the EDPL, Defendants should not now be heard to eschew

its plain requirements. Defendants’ motions should be rejected for this reason alone, but there is

more.

7. Defendants also attempt to divert attention from the core issue presented

by this action – whether the UDC acquired Lot 7501 by eminent domain – by arguing that the

property rights created by the recorded document that the City designated as Lot 7501 is nothing

more than a light and air easement. That argument, however, is foreclosed at the motion to

dismiss stage. Indeed, the document creating the property interest is best understood as Plaintiff

describes in its Complaint. The recorded document (1) describes the parcel in metes and bounds

above the plane, (2) references itself as “this Indenture,” and (3) acknowledges PWE’s right to

assign the parcel in its “Sole discretion.” See Affirmation of Charles S. Webb, III (“Webb Aff.”)

Ex. 5. Insofar as it also titled an “Easement Agreement,” it is an obvious reference to the actual

emergency egress easement granted over PWE’s property. That title, however, does not control

the substance of the fee interest actually created by the document and recognized by the Office of

the City Register.

8. Finally, the UDC also submits a patently improper attorneys’ affirmation

“in support of the motion to dismiss,” pursuant to CPLR 3211(a)(1) and (a)(7), sworn to by Joy

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A. Bobrow, an extraordinarily cooperative “Senior Tax Counsel at the New York City

Department of Finance.”

9. Ms. Bobrow kindly volunteered her time to review the Complaint in this

action and offer her legal opinion that a “company cannot have an ownership interest in Lot

7501” and her hearsay inadmissible factual testimony that “Lot 7501 is not a true tax lot.”

Affirmation of Joy A. Bobrow In Support of Motion To Dismiss (“Bobrow Aff.”) (attached to

the Webb Aff. as an undesignated final exhibit). While there may come a time for this Court to

consider Ms. Bobrow’s testimony (after expert disclosures, examinations before trial, and cross-

examination at trial, and subject to objections based on lack of personal knowledge), it is

frivolous to present it to the Court on a motion to dismiss, whether for failure to state a cause of

action under CPLR 3211(a)(7) or a defense founded on conclusive documentary evidence under

CPLR 3211(a)(1).

Facts

10. The following facts, which must be accepted as true on a motion to

dismiss, are taken from the Complaint. See Webb Aff. Ex. 1.

11. In or about 2001, plaintiff PWE entered into Agreement with Yoshizumi

Corporation (“Yoshizumi”), the then owner of the property located at 24 Sixth Avenue,

Brooklyn, New York, previously designated as Block 1127, Lot 35, which the parties also

described as “this Indenture” (hereafter the “Indenture” or “Agreement”). Complaint ¶ 12.

12. In the Indenture, Yoshizumi conveyed to PWE certain property above the

plane in the area not occupied by the existing four story structure that was defined as the

Restricted Area, and identified in an attached schedule as:

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 ALL that certain lot, piece or parcel of land with the buildings and
improvements thereon, situate, lying and being in the Borough of Brooklyn,
County of Kings, City and State of New York, bounded and described as follows:

BEGINNING at a point in the interior of the block being distant 142 feet 6
inches from the corner of the intersection of the westerly side of Sixth Avenue and
the Southerly side of Pacific Street and being distant on a course parallel to Dean
Street westerly from Sixth Avenue 40 feet.

THENCE Northerly parallel with Sixth Avenue 1 feet 6 inches;

THENCE Westerly parallel to Dean Street 8 feet;

THENCE Northerly parallel with Sixth Avenue 87 feet;

THENCE Westerly parallel to Dean Street 52 feet; THENCE Northerly

parallel with Sixth Avenue 17 feet 11 3/4 inches;

THENCE Easterly parallel to Dean Street 54 feet;

THENCE southerly parallel to Sixth Avenue 106 feet 6 inches;

THENCE Westerly parallel to Dean Street 4 feet to the point or place of

beginning.

Complaint ¶ 12; Webb Aff. Ex. 5 (Agreement Schedule C-1).

13. Consistent with the nature of the above the plane conveyance, the

Indenture also provided that “Yoshizumi shall be restricted from constructing any buildings,

structures or extensions in the Restricted Area.” Webb Aff. Ex. 5, ¶ 2.

14. In the Agreement, and in addition to conveying the property in the

Restricted Area, “Yoshizumi also acknowledges that with regard to any vertical expansion of its

[existing four story] structure, same shall be limited to removable enclosures less than ten (10)

feet high placed on rooftop patio areas and set back a minimum of six (6) feet from the exterior

wall facing,” certain adjacent property. Id. ¶ 3.

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 15. Paragraph six of the Indenture provided: “TO HAVE AND TO HOLD the

right and interest of light and air unto PWE, its heirs and assigns forever, Yoshizumi covenants

as follows: (a) Yoshizumi will keep the Restricted Area . . . forever open and free of all buildings

and structures, except the existing covered walkway.” Id. ¶ 6.

16. Finally, the Indenture provided that its “covenants are to run with the land

and shall be binding upon and inure to the benefit of the heirs and assigns of the parties.” Id. ¶ 8.

17. Thereafter, PWE submitted the Indenture to the Office of the City Register

of the City of New York for recording. Complaint ¶ 18.

18. On or around the same period that PWE and Yoshizumi entered into the

Indenture that conveyed the property in the Restricted Area to PWE, Yoshizumi also converted

the property and building located at 24 Sixth Avenue (Block 1127, former lot 35) into 21

condominiums. As part of that conversion, the City Register assigned individual tax lot numbers

to each of the condominiums, thus creating new tax lots numbered 1001-10021. Id. ¶ 19.

19. On or about June 23, 2004, the City Register recorded the Indenture. In

the Recording and Endorsement Cover Page, the City Register designated the property located in

the Restricted Area of 24 Sixth Avenue as “Lot 7501.” Id. ¶ 20.

20. On or about July 24, 2006, defendant UDC published a Notice of Public

Hearing concerning various actions it intended to take with respect to the “Proposed Atlantic

Yards Land Use Improvement and Civic Project,” including, among other things, notice of a

public hearing pursuant to “Article 2 of the New York State Eminent Domain Procedure Law”

(the “Notice”). Id. ¶ 21.

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 21. The Notice explained that the hearing was being held in part “to consider .

. . the proposed acquisition by condemnation of certain property located within the Project site”

and “for the purpose of . . . advising all persons and property owners within the Project site of

what properties are contemplated for acquisition by eminent domain.” Id. ¶ 22.

22. The Notice further identified “a list of specific parcels that would be

acquired by eminent domain.” The list identified each parcel by “Brooklyn Tax Block,” by

“Lot(s),” and by “Address(es).” As relevant to this action, the Notice identified Block 1127, Lots

“1001-1021 (formerly Lot 35),” with an address of “24 6th Avenue (Unit #’s B1, 101-105, 201-

205, 301-305, 401-405).” Plaintiff PWE’s property at 24 Sixth Avenue – Lot 7501 – was not

included. Id. ¶ 23.

23. Immediately after the list of properties identified by block and lot number,

the Notice provided that the “above-identified street addresses are included for ease of reference

only,” and in the “event of any inconsistency between the street addresses and the tax blocks and

lots, the block and lot information shall control.” Id. ¶ 24.

24. Thereafter, on or about December 8, 2006, the UDC issued the

“Determination and Findings by the New York State Urban Development Corporation d/b/a

Empire State Development Corporation Pursuant to EDPL Section 204 with Respect to the

Atlantic Yards Land Use Improvement and Civic Project (the “Determination”). Id. ¶ 25.

25. The Determination identified the “Parcels and Street Beds to be Acquired

by Eminent Domain.” Like the Notice, the Determination identified the parcels by block, lot and

address. Id. ¶ 26.

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 26. As in the Notice, the Determination identified Block 1127, Lots “1001-

1021 (formerly Lot 35),” with an address of “24 6th Avenue (Unit #’s B1, 101-105, 201-205,

301-305, 401-405).” Id. ¶ 27.

27. As with the Notice, plaintiff PWE’s property at 24 Sixth Avenue – Lot

7501 – was not included as a parcel to be acquired by eminent domain. Id. ¶ 28.

28. Immediately after the list of properties identified in the Determination, the

UDC, as it had in the Notice, again warned that the “above-identified street addresses are

included for ease of reference only,” and in the “event of any inconsistency between the street

addresses and the tax blocks and lots, the block and lot information shall control.” Id. ¶ 29.

1. The UDC Did Not Condemn Lot 7501

29. As set forth above, the UDC’s own documents conclusively establish that

the UDC chose to identify the properties it intended to acquire, and ultimately did forcibly

acquire by “Brooklyn Tax Block,” by “Lot(s),” and by “Address(es),” but that the addresses were

“included for ease of reference only,” and that ultimately “the block and lot information shall

control.”

30. There is also no doubt that PWE recorded its Indenture, including a metes

and bounds description of property located above the plane at 24 Sixth Avenue, with the City

Register and the City Register designated that property as Lot 7501.

31. Finally, there is no question that the UDC did not identify Lot 7501 in its

Notice of Public Hearing pursuant to EDPL § 202 or in its Determination and Findings pursuant

to EDPL § 204.

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 32. Notwithstanding these well pleaded, indeed incontestable, facts, the UDC

contends that it condemned PWE’s Indenture because PWE should have divined its intention to

acquire Lot 7501. As the UDC well knows, however, this is not how the EDPL works.

33. The UDC argues that it should be permitted to add to the list of properties

it intended to acquire four years after it provided notice of and conducted a public hearing, after

it issued its findings and determination, and after all challenges to the finding and determination

have been resolved in UDC’s favor.

34. But, the “power to condemn, or to take private property with the owner’s

consent, must be strictly construed and must be exercised in strict conformity with the terms of

the statute conferring the right.” In re Reed’s Basket Willow Swamp Park, 6 Misc.3d 1025(A),

2005 WL 416817 at *3 (Sup. Ct. Kings. Co., Feb. 18, 2005) (citations omitted). Moreover, “in a

condemnation proceeding, there must be no uncertainty in the description of the property to be

taken, nor in the degree of interest to be acquired.” Id. (internal quotation marks and citations

omitted).

35. Here, there is no question or uncertainty about the property the UDC

sought to acquire. It did not include Lot 7501. If this Court now allows the UDC to include Lot

7501, it will be the functional equivalent of declaring the entire EDPL a nullity and granting the

UDC and other condemning authorities the power to condemn – by proclamation. For if the

EDPL does not, by its express terms, strictly limit the UDC’s power to condemn to those

properties identified with certainty and clarity – nothing does.

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2. PWE’s Indenture Is A Fee Interest In Real Property, Not An Easement

36. Defendants’ primary argument is that the property right reflected in the

document recorded by the City Register and designated as Lot 7501 is not a fee interest in

property above the plane within the metes and bounds set forth in that document, but rather an

easement that was extinguished by operation of law when the UDC acquired title to 21 of the 22

tax lot parcels which comprised the entirety of the property located at 24 Sixth Avenue, and

PWE’s former property located at 38 Sixth Avenue. But this begs the core issue presented by

this case.

37. The UDC chose to condemn by block and lot number, but failed to

condemn one of the lots it has now purported to lease to Brooklyn Arena for the purpose of

constructing a professional basketball arena. Whether Lot 7501 is most accurately characterized

as a fee interest in property above the plane within the metes and bounds set forth in the

document (as Plaintiff contends) or a compensable property interest of a different sort, such as an

easement (as Defendants contend), the one thing we know with absolute certainty is that it was a

valuable, duly recorded, property interest that the UDC never identified and thus did not

condemn and does not now own. If it wants to acquire it, it has to do so lawfully. It cannot

simply lease it to Brooklyn Arena. Nor can Brooklyn Arena trespass upon the property. 1

38. Insofar as the question of the precise nature of the property right created by

the recorded document is pertinent (it is not), that document is best understood as transferring a

fee interest in the former owner’s property above the plane and transferring it to Plaintiff PWE.

1
Plaintiff has monitored, as best it can, Defendants’ activities on and around Lot 7501
and have not observed any encroachment. Plaintiff, however, reserves its right to seek an order
prohibiting any trespass on its property should such a trespass occur or appear imminent.

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In not event, however, would it be proper for this Court to conclusively interpret the document as

creating nothing more than an easement as Defendants’ urge.

3. PWE Did Not Release Or Assign Its Right To The Property Interest
Created By The Recorded Instrument

39. Lastly, Defendants argue that the release provided by PWE when it settled

its claims for compensation “arising from ESDC’s acquisition of fee title to the property

identified on the current Tax map of New York as Block 1127, Lot 48 (a/k/a 38 Sixth Avenue

a/k/a 475 Dean Street),” is “broad and covers any claim connected to the Project’s condemnation

proceeding, including any claim to 24 6th Avenue.” Webb Aff. Ex. 6 (emphasis in original); see

also Affirmation of Jeffrey L. Braun (“Braun Aff.”) Ex. D. This, of course, makes no sense.

Indeed, it is directly contradicted the by language of the release itself.

40. The unambiguous language of the release is plainly and expressly limited

solely to “38 Sixth Avenue.” It is not a general release. It is a release of any claim for

compensation “arising from ESDC’s acquisition of fee title to . . . 38 Sixth Avenue” id. – nothing

more. Tellingly, neither the release, Webb Aff. Ex. 6, nor the “Assignment of Award in

Condemnation Proceeding” to Atlantic Yards Development Company, LLC (a Forest City Ratner

affiliate), Braun Aff. Ex. D, make any mention of PWE’s interest in property located at 24 Sixth

Avenue, and both documents were drafted by Defendants, not by PWE.2

2
To the UDC’s credit, it at least quotes honestly the pertinent language from the release
which manifestly limits itself to Lot 48 and thus conclusively establishes that the release does not
apply to Lot 7501 (or for that matter any part of former lot 35 and/or 24 Sixth Avenue). In
contrast, Defendant Brooklyn Arena’s argument is long on obfuscation and hyperbole, but short
on candor. Mr. Braun derides Plaintiff’s action as “a shameless effort to shake down” Ratner,
“dead wrong,” “utter[ly] fals[e],” and “patently specious,” because Plaintiff’s claim is “barred by
the release,” but then intentionally omits from his quotation that portion of the release that
expressly limited its applicability to Lot 48. See Braun Aff. ¶ 27.

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 41. Moreover, if the language itself were ambiguous in some way (it is not),

the map attached to the assignment agreement (Braun Aff. Ex. D) identifies the property as a

portion of Lot 48. It says nothing about Lot 7501, former lot 35, and/or 24 Sixth Avenue.

Defendants do not explain how a release that is plainly limited by its express terms to one piece

of property can be expanded to include another. It cannot be done.

42. Finally, if PWE’s undeniable interest in Lot 7501 were condemned, PWE

would be entitled to just compensation, which it has never received. PWE has never been

compensated for its interest in Lot 7501. It retains its rights to that property. Defendants’

motions should be denied.

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WHEREFORE, based on the foregoing, Defendants’ motion to dismiss should be

denied.

Dated: July 27, 2010

New York, New York

___________/s/_____________________
Matthew D. Brinckerhoff, Esq.

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