Opinion
No. 15101/10.
2010-09-20
PETER WILLIAMS ENTERPRISES, INC., et al., Petitioners, v. NEW YORK STATE URBAN DEVELOPMENT CORP., Respondent.
Charles Webb, Esq., Berger & Webb. Philip Karmel, Esq., Bryan Cave LLP.
Charles Webb, Esq., Berger & Webb. Philip Karmel, Esq., Bryan Cave LLP.
Jeffrey L. Braun, Esq., Kramer Leven Naftalis & Frankel.
Matthew Brinckerhoff, Esq., Emery Celli Brinckerhoff & Abady.
ABRAHAM G. GERGES, J.
Upon the foregoing papers, in this Article 78 proceeding, petitioners
535 Carlton Ave. Realty Corp. (535 Carlton); Pacific Carlton Development Corp. (Pacific Carlton); and The Gelin Group, LLC (Gelin),
Petitioners Peter Williams Enterprises, Inc. (PWE); Chadderton's Bar and Grill, Inc. (Chadderton's) and Daniel Goldstein have executed stipulations withdrawing their claims in this proceeding, apparently as the result of settling their compensation claims in the related eminent domain proceeding.
seek a judgment: (1) compelling respondent New York State Urban Development Corporation d/b/a Empire State Development Corporation (ESDC) to consider the “public use to be served” by the proposed Atlantic Yards Land Use Improvement and Civic Project (the Project), as it exists now, in the year 2010, rather than 2006, and to issue a new, supplemental, or amended determination and findings as required by Eminent Domain Proceeding Law (EDPL) § 204(B); and (b) vacating and/or nullifying respondent's December 2006 Determination and Findings (the 2006 D & F) on the grounds that: (i) the factual basis for the 2006 D & F has been materially and substantially undermined by subsequent events, and/or (ii) because respondent materially vitiated those findings when it approved a new Modified General Project Plan (MGPP) on September 17, 2009 (the 2009 MGPP), such that the 2006 D & F can no longer serve as the predicate for the confiscation of petitioners' homes and businesses; and (2) pursuant to CPLR 3001, declaring that the 2006 D & F can no longer serve as the predicate for the condemnation of petitioners' homes and businesses for the same reasons. ESDC moves for an order: (1) pursuant to CPLR 321l(a)(7) and 7804(f), dismissing the proceeding for failure to state a cause of action; and (ii) pursuant to CPLR 321l(a)(l) and 7804(f), dismissing the proceeding because its allegations are inconsistent with the ESDC documents upon which the issues purport to be founded and because the proceeding is barred by laches; and (iii) granting a preference pursuant to CPLR 3403(a)(l). Petitioners cross-move, pursuant to CPLR 3025, for an order granting them leave to interpose an amended pleading.
Gelin occupies property located at 491 Dean Street (Block 1128, Lot 87) that is owned by Razvan Jurist, who authorized Gelin to prosecute any actions challenging the propriety of ESDC's condemnation of the premises.
Facts and Procedural Background
This dispute is another challenge to the condemnation of approximately 22 acres of property in downtown Brooklyn for the development of the Project by Bruce Ratner, Forest City Ratner Companies LLC (FCRC) and its affiliates (hereinafter collectively referred to as Ratner). The history of the Project and a summary of the legal challenges was set forth in detail in the decision that this court rendered on March 1, 2010 ( Matter of New York State Urban Development Corp. [Atlantic Yards Land Use Improvement & Civic Project—Phase 1] ), 26 Misc.3d 1228A, 2010 N.Y. Slip Op 50301U [2010] ) (the Condemnation Decision) in the eminent domain proceeding commenced by ESDC on December 23, 2009 (Index No. 32741/09) (the Condemnation Proceeding) and will be repeated herein only as is necessary to address the arguments relied upon by the parties in their papers.
In brief, as is relevant to the issues now before the court, and as was set out in the Condemnation Decision:
“On December 8, 2006, petitioner UDC adopted the Findings Statement pursuant to the New York State Environmental Quality Review Act (SEQRA); affirmed the 2006 MGPP under the Urban Development Corporation Act (the UDCA); and issued the 2006 D & F, premised upon the 2006 MGPP. The 2006 D & F stated that the principal public use, benefit and purpose of the Project was to eliminate the blighted conditions on the Project Site and the blighting influence of the below-grade rail yard and alleged that the Project would also provide other public uses, benefits and purposes, including, inter alia, constructing the Arena that would allow the Nets to relocate to Brooklyn and that would provide a venue for community uses; providing 2,250 units of affordable housing; upgrading the LIRR yard to provide a state-of-the-art rail storage, cleaning and inspection facility that would enable the LIRR to better accommodate its new fleet of cars; constructing a new subway entrance; and providing eight acres of publicly accessible open space. The 2006 D & F further stated that the Project would provide certain economic benefits, including, among other things, net tax revenues in excess of the public contribution to the Project.
“In June 2009, petitioner revealed its intention to modify the 2006 MGPP. On June 23, 2009, the ESDC directors adopted the 2009 MGPP, along with a 63 page Technical Memorandum' that details the changes sought and obtained by FCRC, and authorized the publication of public hearing notices as required by the UDCA. On July 29, 2009 and July 30, 2009, ESDC held public hearings pursuant to sections 6 and 16 of the UDCA (Unconsol Laws §§ 6256 and 6266) to receive comments on the 2009 MGPP and on ESDC's proposed disposition of certain parcels of real property in connection with the Project. ESDC accepted written comments through August 31, 2009. On September 17, 2009, the ESDC directors affirmed the 2009 MGPP.”
(The Condemnation Decision *3–4).
Petitioners commenced the instant hybrid Article 78 proceeding/declaratory judgment action in New York County Supreme Court on January 19, 2010 (Index No. 100738/10) (hereinafter referred to as an action). By order to show cause originally returnable on February 26, 2010, ESDC made the motion to dismiss that is now before this court. By cross motion originally returnable on the same day, also in New York County Supreme Court, petitioners made their cross motion seeking leave to interpose an amended petition.
On March 1, 2010, this court issued the Condemnation Decision and simultaneously signed a vesting order transferring title to the properties needed for construction of Phase I of the Project, including the properties owned by petitioners herein, except Gelin,
to ESDC. On April 2, 2010, petitioners filed a notice of appeal with regard to that Decision. On April 9, 2010, this court signed an order to show cause as to why writs of assistance should not be issued requiring certain occupants, including PWE, Chadderton's and Goldstein, to vacate the premises and directing the Sheriff to eject them if they refused to leave.
The property occupied by Gelin is slated to be taken for Phase II of the Project.
By order to show cause returnable May 13, 2010 in New York County Supreme Court, ESDC moved for an order transferring venue of this action to Kings County or, in the alternative, dismissing the proceeding under the doctrines of claim preclusion and issue preclusion. By decision dated May 26, 2010, the Honorable Marcy S. Friedman granted that branch of the motion seeking to change venue and did not reach that branch of the motion seeking dismissal, stating, as is relevant herein, that:
“Notably also, all of the petitioners in the instant proceeding, except the Gelin Group, LLC (Gelin), were respondents in the Kings County proceeding. As stated in the Kings County vesting order, the respondents moved for an order dismissing the eminent domain petition on the ground, among others, that findings made by ESDC pursuant to the EDPL in 2006 can no longer serve as the predicate for the seizure of respondents' homes and businesses because the 2006 Modified General Project Plan was nullified and superceded' by the 2009 MGPP, and the factual underpinnings of the determination of public use, benefit and purpose ... have materially changed' since 2006. (Order at 2.) The instant proceeding alleges similarly that the 2006 Determination and Findings (D & F) should be vacated on the ground that (i) the factual basis for the 2006 D & F has been materially and substantially undermined by subsequent events, and/or (ii) because Respondent itself materially vitiated those findings when it approved a new Modified General Project Plan on September 17, 2009 ..., such that the 2006 D & F can no longer serve as the predicate for the confiscation of Petitioners' homes and businesses.' (Notice of Petition, P 1.) A substantial question therefore exists as to whether the relief in the instant proceeding is barred, on collateral estoppel or res judicata grounds, by the determination of the Kings County proceeding.”
( PWE v. New York State Urban Dev. Corp., 2010 N.Y. Slip Op 31333U, *3–4 [2010] ).
The Petition and Amended Petition
Since petitioners impliedly concede that the petition is insufficient to entitle it to the relief sought by cross-moving to amend, and because the papers before the court address both the petition and the amended petition, this decision will address the allegations raised in both.
Succinctly stated, petitioners claim that since the 2006 D & F were issued, the Project has changed so significantly that ESDC should not be permitted to rely upon the 2006 D & F and should be required to conduct new hearings and to issue a new D & F. In so arguing, petitioners emphasize that the court refused to address any changes in the Project that occurred after the 2006 MGPP was approved in rendering the decision in Matter of Goldstein v. New York State Urban Development Corp. (64 AD3d 168 [2009],affd13 NY3d 511 [2009],rearg. denied14 NY3d 756, 2010 N.Y. Slip Op 63486 [2010] ). More specifically, petitioners rely upon the same allegations interposed in opposition to the petition seeking to acquire title to the subject properties in the Condemnation Proceeding, i.e., that in approving the 2009 MGPP, ESDC should have been aware that: (1) in a memorandum, dated September 17, 2009, Dennis Mullen requested that the UDC Board adopt the 2009 MGPP, which accelerated the State's last cash payment of $25 million to Ratner, for a total of $100 million that had allegedly been disallowed earlier; (2) that the September 10, 2009 Report of the New York City Independent Budget Office entitled “The Proposed Arena at Atlantic Yards: An Analysis of City Fiscal Gains and Losses” revealed that the deal between Ranter and the City had been materially altered to provide for different and more favorable financing for Ratner, including the receipt of $726 million in government subsidies; (3) that the deal between Ratner and the MTA had been materially altered to reduce his initial cash payment from $100 to $20 million and to allow him more time to complete the Project, with virtually no penalty if the Project is abandoned; (4) that the Technical Memorandum issued by ESDC in June 2009 anticipated that the Project would total only 7,961,000 square feet, although the Project had since been reduced to include only 5,145,000 square feet, a reduction of approximately 35%; and (5) that although the 2009 MGPP anticipated the possibility that as many as 2,250 affordable housing units will be built over the next 30 years, the development agreement between UDC and Ratner provided that every unit of affordable housing would be contingent upon governmental authorities making affordable housing subsidies available to Ratner.
Petitioners further aver the 2009 MGPP provides that ESDC's acquisition of all such properties by condemnation will not occur until respondent receives satisfactory commitments, guaranties and other evidence that Ratner will promptly commence and complete construction. Petitioners contend that because the deal is structured so that Ratner can abandon Phase II of the Project and forfeit an $86 Million letter of credit that was posted, which is far less that the estimated cost of $147 million to complete the rail yard, and because construction of the new railroad platform will not begin until 2030 instead of 2016, the primary public purpose of the Project, i.e, reducing blight as stated in the 2006 D & F, will not be realized in a timely fashion, if at all. They further aver that this conclusion is supported by their assertion that the majority of the purported benefits of the Project are derived in Phase II, including the construction of the majority of affordable housing; the publicly accessible open space; the majority of the community facilities; and the majority of the economic benefits associated with the construction jobs, tax revenue and permanent employment. Petitioners conclude that because of the magnitude of these profound and material changes made to the Project since the 2006 D & F and the 2009 D & F were adopted, their petition should be granted and ESDC should be ordered to issue an amended or supplemented D & F.
Petitioners also refer to an indictment filed against City Council member Sandy Annabi; her cousin, Zehy Jereis; and Anthony Mangone, a man hired by the developer to obtain support for the Longfellow and/or Ridge Hill Development Projects in Yonkers, New York, pursuant to which these individuals were indicted for taking bribes and/or conspiring to take bribes from Ratner, along with other allegedly illegal conduct, to argue that further inquiry into the Project is called for.
In further opposition to the motion to dismiss and in support of their cross motion to amend the petition, petitioners allege that on January 27, 2010, after the petition was filed, ESDC released the documents that were executed at the December 23, 2009 Master Closing. They contend that these documents reveal that the deadlines imposed by ESDC on Ratner and the Project, as currently contemplated, bear almost no relationship to the 2009 MGPP which was adopted on September 17, 2009, much less the superceded 2006 MGPP upon which the 2006 D & F of public use, benefit or purpose pursuant to EDPL § 204(b) were based. More specifically, petitioners allege that the documents reveal that Ratner is afforded six years to build the arena; three or four years to start construction of the first tower; five or six years to start construction of the second tower; ten years to start construction of the third tower; and a total of twelve years to build Phase 1, which can be much smaller than originally promised. They further assert that Ratner is now afforded 15 years to start construction of the platform over the rail yard, but may back out; that Ratner is afforded 25 years to finish the Project; and that there are only de minimus financial penalties for substantial delays of this multibillion dollar project, or less than $10 million for an arena that is three years late, and $5 million for each of three buildings in Phase 1. They also argue that a provision in the Development Agreement allows for an even greater reduction in project size, from 7,961,000 square feet as projected in the 2006 MGPP, to a 5,145,000 square foot minimum, as revealed in the Mullen Memo, to an even further reduced minimum to 4,470,000 square feet, which constitutes a reduction of 44%, which in turn means that every projected benefit has been eviscerated because those projections were based on a ten year build out and an 8 million square foot Project. Petitioners thus conclude that they should be granted leave to interpose an amended verified petition, so that respondent will be required to answer each factual allegation separately and so that the pleading can reflect material facts that were first revealed after this action was filed.
The Motion to Dismiss
In support of its motion, ESDC argues that the petition should be dismissed because in Matter of Goldstein, both the Appellate Division, Second Department (64 AD3d 168) and the Court of Appeals (13 NY3d 511) determined that the Project serves important public purposes that warrant the exercise of eminent domain, as did the United States Court of Appeals for the Second Circuit in Goldstein v. Pataki (516 F3d 50 [2008],cert denied554 U.S. 930, 76 USLW 3674 [2008] ). In addition, another challenge to the public use of the Project, Matter of Develop Don't Destroy (Brooklyn) v. Urban Development Corp. (59 AD3d 312 [2009],lv denied13 NY3d 713 [2009],rearg. denied2010 N.Y. Slip Op 63182 [2010],petition denied, injunction denied 26 Misc.3d 1236A, 2010 N.Y. Slip Op 50424U [2010] ); a challenge to the method implemented for the relocation of the families and individuals displaced from the project area (Anderson v. New York State Urban Dev. Corp., 44 AD3d 437 [2007]; a challenge to the funding agreement for the Project ( Anderson v. New York State Urban Development Corp. (Sup Ct New York County, Index No. 106056/08); and a challenge to the business arrangements between Ratner and the MTA Board that were approved on June 24, 2009 ( Montegomery v. MTA, 25 Misc.3d 1241A, 2009 N.Y. Slip Op 52539U [2009] ) were all denied.
ESDC further argues that the 2006 and 2009 MGPP are virtually identical, thereby compelling the conclusion that the public purpose to be served by the Project has not changed, i.e., the elimination of substandard and unsanitary conditions at the Project site and the construction of civic facilities including a new arena, a new subway entrance, a new rail yard for the Long Island Rail Road (LIRR) and eight acres of open space. In addition, and as was argued in support of the petition seeking to condemn the property, ESDC argues that the 2009 MGPP and 2006 MGPP are virtually identical, as they both involve the same project site (2006 MGPP at 2, Exhibit A–2; 2009 MGPP at 2, Exhibit A–2); the same 17 buildings at the same locations (2006 MGPP, Exhibit A-l); the same uses in these 17 buildings (2006 MGPP at 3–16, 2009 MGPP at 3–17); the same eight acres of publicly accessible open space (2006 MGPP at 16–17; 2009 MGPP at 17–18); compliance with the same set of comprehensive Design Guidelines for the 17 Project buildings and eight acres of open space (2006 MGPP at 6, 7, Exhibit B; 2009 MGPP at 6, 7, Exhibit B); a new LIRR yard with a new, direct portal to the Atlantic Terminal (2006 MGPP at 12–14; 2009 MGPP at 13–14); a new subway entrance at the southeast corner of Atlantic and Flatbush Avenues, on the Arena Block (2006 MGPP at 10–11, 35–37; 2009 MGPP at 10–12, 30, 37–38); and the same private developer (2006 MGPP at 1; 2009 MGPP at 1).
ESDC explains that the principal change effected by the 2009 MGPP is that the properties needed for construction will be acquired in phases, instead of being acquired in their entirety at one time, and that this change does not re-open the public use issues that have already been decided by the Second Circuit and by the Court of Appeals. In this regard, ESDC again relies upon the case of Leichter v. New York State Urban Development Corporation (154 A.D.2d 258 [1989] ), in which the Appellate Division, First Department, in addressing the 42nd Street Redevelopment Project, held that the phasing of property acquisition does not change the purposes of a project. ESDC also argues that petitioners should not be permitted to continue to delay the project by bringing a lawsuit challenging every phase of the approval process. Finally, ESDC points out that if the petition is granted and it is ordered to issue new findings, petitioners would undoubtedly challenge the findings in seriatim, as they did with the 2006 D & F, which could again be expected to result in changes to the Project occasioned by the resultant delay, so that they would be permitted “to create an endless loop of litigation.”
In addressing the new claims that petitioners seek to interpose in support of their request to amend the petition, ESDC argues that the factual allegations raised are incorrect. More specifically, ESDC explains that in asserting that the number of square feet that will be built has decreased, petitioners are now comparing the minimum square footage permitted to the maximum, and that these numbers have not been modified. ESDC further avers that the schedule delays that petitioner complains of cannot serve as a basis for relief, since ESDC acknowledged the potential for delay in construction of the Project prior to the 2009 public hearings. It also contends that the agreement with the MTA does not trump the 2009 MGPP and does not affect Ratner's obligation to construct the Project in conformity with the 2009 MGPP and its Development Agreement with ESDC. Finally, ESDC alleges that the claim that the amount of affordable housing that is to be built has changed is untrue, since both the 2006 MGPP and the 2009 MGPP always contemplated that the housing would be built utilizing available government subsidies. Moreover, ESDC asserts that even if the Project was changed as alleged, none of the changes affect the public purposes to be served, so that no new hearings or findings are required pursuant to Leichter (154 Ad2d 258). ESDC further avers that petitioners' references to the indictment of persons involved in the construction of the Yonkers projects are irrelevant to this proceeding.
In support of its contention that the petition should be barred pursuant to the equitable doctrine of laches, ESDC argues that construction has been on-going for three years and has been advancing steadily. Petitioners, however, chose to file this proceeding on the very last day of the four-month limitations period for challenging the 2009 MGPP and then waited two additional weeks to serve the petition on ESDC. In the period between ESDC's affirmation of the 2009 MGPP on September 17, 2009 and the service of the petition, and in reliance on the continuing validity of the Determination & Findings, ESDC, MTA, Ratner and other entities completed the Master Closing at which the Development Agreement and several hundred other contracts were signed; Ratner posted multiple letters of credit totaling more than $150 million to guarantee completion of certain aspects of the Project; the Arena successfully completed the issuance and sale of approximately $511 million of tax-exempt bonds; Ratner completed construction of the temporary rail yard for the LIRR; LIRR decommissioned the permanent rail yard and allowed Ratner to remove most of the permanent yard's railroad tracks on the Arena block; Ratner continued to construct new sewers and other utilities in the area; Ratner continued to prepare buildings on the project site for demolition, demolishing more than 30 buildings; ESDC and the City of New York fulfilled their commitments to provide more than $200 million in public funding for certain elements of the Project; and ESDC initiated the Condemnation Proceeding. In view of these facts, ESDC concludes that petitioners' inequitable and prejudicial conduct should constitute a bar to this proceeding under the doctrine of laches.
Petitioners' Opposition
In opposition, as noted above, petitioners' seek leave to amend the petition to include the facts that they allege became known after their proceeding was filed. In reliance thereon, they assert that whatever legitimacy that could be ascribed to respondents' 2006 D & F has been wholly eviscerated by subsequent events. Petitioners thus conclude that ESDC must be ordered to supplement or amend its D & F, since profound material changes have been made to the Project since the 2006 D & F were approved in that the principal public purpose of eliminating blight on the Project Site and the below-grade rail yard will not be completed for 25 years, if at all, and not in 10 years as was originally contemplated.
In addition, they argue that in the Condemnation Decision, this court premised its holding on the finding that a challenge to the 2009 MGPP was time barred. Thus, since the instant action was filed within the four-month statutory period, it is timely and should be granted. Petitioners further aver that since the Condemnation Decision was also premised upon the holding in Goldstein (13 NY3d 511), the reasoning therein in inapposite, since the Court of Appeals refused to consider any change in circumstances that occurred after the 2006 D & E were approved and this proceeding is premised upon the contention that the factual predicates for the Project have changed so significantly since 2006 that this court must consider the Project, as it exists now.
Discussion
Preliminarily, the court rejects ESDC's claim that this challenge to the Project is barred by laches. “Laches is an equitable bar, based on a lengthy neglect or omission to assert a right and the resulting prejudice to an adverse party.' The mere lapse of time, without a showing of prejudice, is insufficient to sustain a claim of laches” (Matter of Linker v. Martin, 23 AD3d 186, 189 [2005], quoting Saratoga County Chamber of Commerce v. Pataki, 100 N.Y.2d 801, 816 [2003],cert denied Pataki v. Saratoga County Chamber of Commerce, 540 U.S. 1017 [2003] ). Laches also requires a showing of prejudice due to delay ( see e.g. Steele v. Motor Veh. Accident. Indem. Corp., 39 AD3d 78, 82 [2007],appeal dismissed9 NY3d 989 [2007];Matter of Linker, 23 AD3d at 189).
Although ESDC argues that the Project is well underway, it is clear that planning and construction have been progressing since the inception of the Project. Herein, however, petitioners contend that they are challenging the Project premised upon alleged changes to the Project revealed in the 2009 MGPP, which was approved on September 17, 2009; the documents executed at the Master Closing, which were allegedly released on January 19, 2010; and the alleged illegal and/or improper conduct of Ratner in Projects being constructed in Yonkers, as set forth in an indictment, a report of which was published in the New York Times on January 7, 2010. Inasmuch as the instant petition was filed on January 19, 2010, the court concludes that petitioners' challenge, as so characterized, was not unduly delayed and is not, therefore, barred by laches.
As urged by ESDC, the court finds, however, that the arguments raised by petitioners in support of their demand for relief herein are virtually identical to the claims raised in their answer in opposition to the petition in the Condemnation Proceeding, as limited hereinafter. As is relevant to this issue, “the doctrine of res judicata operates to “preclude the renewal of issues actually litigated and resolved in a prior proceeding as well as claims for different relief which arise out of the same factual grouping' or transaction' and which should or could have been resolved in the prior proceeding” ' “ (Siegel v. Competition Imps ., 296 A.D.2d 540, 541 [2002], quoting Koether v. Generalow, 213 A.D.2d 379, 380 [1995], quoting Braunstein v. Braunstein, 114 A.D.2d 46, 53 [1985],lv dismissed Sorman–Braunstein v. Braunstein, 68 N.Y.2d 753 [1986] ). “It is blackletter law that a valid final judgment bars future actions between the same parties on the same cause of action' “ (Reilly v. Reid, 45 N.Y.2d 24, 27 [1978] ). “The primary purposes of res judicata are grounded in public policy concerns and are intended to ensure finality, prevent vexatious litigation and promote judicial economy” (Xiao Yang Chen v. Fischer, 6 NY3d 94, 100 [2005], citing Matter of Hodes v.. Axelrod, 70 N.Y.2d 364, 372 [1987];Matter of Reilly, 45 N.Y.2d at 28). Further, “[w]here the same foundational facts serve as a predicate for each proceeding, differences in legal theory or relief sought do not create a separate cause of action (Greaves v. Ortiz, 65 AD3d 1085, 1085–1086 [2009], citing Matter of Reilly, 45 N.Y.2d at 26;accord Tray–Wrap v. Pacific Tomato Growers, 61 AD3d 545, 546 [2009] [plaintiff's claim was barred by res judicata/collateral estoppel where he previously made similar arguments based on materially indistinguishable facts] ).
Similarly:
“The doctrine of collateral estoppel, a narrower species of res judicata, precludes a party from relitigating in a subsequent action or proceeding an issue clearly raised in a prior action or proceeding and decided against that party or those in privity, whether or not tribunals or causes of action are the same' (Ryan v.. New York Tel. Co., 62 N.Y.2d 494, 500 [1984];see Kaufman v. Village of Mamaroneck, 18 AD3d 505 [2005];Nissequogue Boat Club v. State of New York, 14 AD3d 542, 544 [2005] ). In order to invoke the doctrine, the identical issue necessarily must have been decided in the prior action and the party precluded [from] relitigating the issue must have had a full and fair opportunity to contest the prior determination ( see Buechel v. Bain, 97 N.Y.2d 295, 303–304 [2001],cert denied535 U.S. 1096 [2002] ).”
(Laramie Springtree v. Equity Residential Props. Trust, 38 AD3d 850, 851 [2007],lv denied9 NY3d 806 [2007] ). Collateral estoppel effect will not be given if the particular issue “was not actually litigated, squarely addressed and specifically decided” ' (Singleton Mgmt. v. Compere, 243 A.D.2d 213, 217 [1998], quoting Ross v. Medical Liab. Mut. Ins. Co., 75 N.Y.2d 825, 826 [1990] ). In addition, “the party seeking the benefit of collateral estoppel ... bears the initial burden of demonstrating identity of issue” (Balcerak v. County of Nassau, 94 N.Y.2d 253, 258 [1999], citing Matter of Juan C. v. Cortines, 89 N.Y.2d 659, 667 [1997],Ryan, 62 N.Y.2d at 501,Schwartz v. Public Administrator, 24 N.Y.2d 65, 73 [1969] ).
Herein, ESDC has established that petitioners raise the same arguments, premised upon the same facts, that were relied upon in seeking to have the petition in the Condemnation Proceeding dismissed. Petitioners now seek to distinguish the Condemnation Proceeding by asserting that the petitioners therein sought and obtained an order authorizing it to file an acquisition map. This contention is found to be unpersuasive, however, since petitioners herein are seeking an order that, in effect, sets aside the finding that ESDC was entitled to condemn the subject property because a new determination and findings must be issued. Thus, since the same foundational facts serve as a predicate for both proceedings, the differences in legal theory or relief sought do not create a separate cause of action ( see Matter of Reilly, 45 N.Y.2d at 26;Greaves, 65 AD3d at 1085–1086;Tray–Wrap, 61 AD3d at 546). Accordingly, the instant action is barred by res judicata. Similarly, since the same issues were raised and rejected by this court in the Condemnation Decision, this action is also barred by collateral estoppel ( see Laramie Springtree, 38 AD3d at 851).
The court recognizes, however, that Gelin was not named as a condemnee in the Condemnation Proceeding. Accordingly, since Gelin did not have a full and fair opportunity to litigate the issues, the Condemnation Decision is not binding on it. Nonetheless, the court finds that since all of the issues raised in this action were fully addressed, analyzed and rejected in the Condemnation Decision, the court adheres to and adopts the findings more fully discussed in the Condemnation Decision. From this it follows that even if the doctrines of res judicata and collateral estoppel were not applicable herein, the court would again resolve the issues against 535 Carlton and Pacific Carlton, as well as Gelin, on the merits in this action. Similarly, to the extent that petitioners now rely upon further changes in circumstances that they contend were not revealed until after they interposed their opposition to the condemnation petition and filed this action, the doctrines of res judicata and/or collateral estoppel cannot be relied in dismissing these claims.
As another threshold issue, the court rejects petitioners' assertion that the determinations made in the Condemnation Decision were based upon the finding that the statute of limitations had run on claimants' challenge to the approval of the 2009 MGPP. In this regard, a reading of the Condemnation Decision reveals that the court noted, in a footnote, that any challenge to the 2009 MGPP would be time barred in the vesting proceeding (Condemnation Decision *22). After so holding, however, this court went on to address and dispose of each of the arguments raised on the merits in the Condemnation Decision.
Accordingly, this court now finds, as it did in the Condemnation Decision, that the public purposes to be served by the Project have not changed since the 2006 D & F were issued, so that no additional hearings are required pursuant to the holdings discussed in Leichter (154 Ad2d 258) and Toh Realy City of New York (154 A.D.2d 267, 268 [1989],lv denied75 N.Y.2d 705 [1990] ) (Condemnation Decision *20–23). As is of particular relevance to the instant dispute, in Leichter (154 A.D.2d 258), the Appellate Division, First Department, specifically rejected the claim that a petitioner is required to commence a de novo approval process where the amendments involved an expansion of the proposed use of a site originally designated as a wholesale facility mart in the original plan to encompass a commercial office tower and a provision for the sequential acquisition of sites as they became available for development (Condemnation Decision *23–24).
Further, this court noted in the Condemnation Decision that in Leichter, the Court of Appeals specifically recognized that:
“Our holding is further supported by a consideration of the practicalities surrounding a project of this scale. As appellants point out in their brief, during the time that this project has been delayed due, in no small part, to attendant litigation, the real estate market in Midtown Manhattan dramatically changed. In addition, several developers withdrew from the project for financial and other reasons. It is clear to this court that if respondent is required to start the hearing process anew, conditions will very likely have changed again by the time the amended plan emerges from the approval process with the attendant legal challenges, thereby extending the review procedure ad infinitum. The hearing requirements set forth in the Eminent Domain Procedure Law and the Urban Development Corporation Act are designed to solicit community involvement in the planning process, not to serve as a vehicle by which public development can be effectively foreclosed.' (Leichter, 154 A.D.2d at 259–260).”
(Condemnation Decision *19–20). The facts herein are strikingly similarly, since many of the complained of changes were made to accommodate the fact that the Project was proposed during an economic boom and since its inception, the world wide economy has suffered one of the worst declines in history and recovery has stalled, if not stopped.
This court further finds, as it did in the Condemnation Decision, that petitioners cannot successfully challenge the Project by arguing that the funding agreement with the MTA has changed. More specifically, after discussing these objections in the Condemnation Decision, the court found that there is no statutory or case law authority that allows a condemnee to oppose a vesting proceeding in reliance upon a challenge to the financial arrangements made by the condemnor to finance the Project (Condemnation Decision *25–29, citing Matter of Byrne, 101 A.D.2d 701, 701–702 [1984] ). Further, to the extent that modifications to the business arrangement between FCRC and the MTA that were approved on June 24, 2009 were challenged in the Condemnation Proceeding, this court held that any such challenge should have been made in an Article 78 proceeding commenced four months after the determination to be reviewed became final and binding upon the petitioner in accordance with CPLR 217(1), so that any such challenge was then time barred (Condemnation Decision *27–28, citing Matter of City of New York [Grand Lafayette Props], 6 NY3d 540, 547 [2006];Matter of Sanitation Garage Brooklyn Dists. 3 & 3A, 32 AD3d 1031, 1035 [2006];In re Acquisition of Real Prop. by the County of Tompkins, 237 A.D.2d 667, 668 [1997] ). In addressing this contention, the court also noted that in the Article 78 proceeding that was commenced to challenge the June 24, 2009 resolution passed by the MTA, Judge Stallman noted that “[t]he subject 2009 resolution approved modification of various business terms to essentially the same plan approved with FCRC on December 13, 2006, when the MTA Board authorized the MTA staff to negotiate and execute binding agreements with FCRC and adopted SEQRA findings” ' (Condemnation Decision *28, quoting Matter of Montgomery, 2009 N.Y. Slip Op 52539[U] *1). In addressing these issues as again raised herein, this court reaches the same conclusions and finds petitioners' objections to be unavailing.
Finally, in the Condemnation Decision, this court rejected claimants' assertion that the petition must be denied on the ground that ESDC did not receive sufficient assurances that the Project would be completed, finding that a condemnor need not assure the likelihood of success of a proposed plan if the condemnor rationally believed that the taking would promote its objective (Condemnation Decision *28, quoting Goldstein, 516 F3d at 63–64 and 488 F Supp 2d at 254 [internal citations omitted] ), and that if property was acquired in good faith, there appears to be little limitation on the condemnor's right to put the property to an alternate use upon the discontinuation of the original planned public purpose (Condemnation Decision *28, quoting Vitucci v. New York City School Constr. Auth ., 289 A.D.2d 479, 480 [2001],lv denied98 N.Y.2d 609 [2002] ). Again, the same conclusion is reached herein.
The Condemnation Decision went on to dismiss the counterclaims interposed by claimants, holding that the facts upon which the claims were premised only expanded upon the facts alleged in the affirmative defenses interposed in their answer, so that they were similarly lacking in merit (Condemnation Decision *28). These are the same facts alleged in the petition now before the court and they are again found to be specious.
For the same reasons, the court further finds that the alleged additional changes to the Project that petitioners rely upon in this action, even if factually true, similarly do not change the public purpose to be served by the Project, i.e., to eliminate blight and the blighting influence of the below-grade rail yard and to construct a civil project. In this regard, it is noted that although the alleged changes to the Project are now discussed in more detail, based upon the assertion that more details have been revealed, the basic premises of the arguments have already been considered and rejected by this court in the Condemnation Decision and adopted herein.
In addition, petitioners' references to the indictment filed in connection with the Yonkers development projects must fail, since a review of the indictment reveals that no charges were made against Ratner. In fact, the indictment refers to Developer 1 and Developer 2 and does not even refer to Ratner by name. Thus, any allegation by petitioners that Ratner was involved in corruption in the Yonkers projects is speculative, and any claim that any corruption may have spread to the Project at issue herein is even further removed.
From this it follows that petitioners' request to amend the petition is denied, since the proposed amendments are patently without merit ( see generally Matter of Town of Southampton v. Chiodi, 75 AD3d 604, 605 [2010], citing Matter of Rouson, 32 AD3d 956, 958 [2006] [although leave to amend a pleading should be freely given pursuant to CPLR 3025[b], a court should deny a motion for leave to amend a petition if the proposed amendment is palpably insufficient, would prejudice or surprise the opposing party, or is patently devoid of merit] ).
Conclusion
For the above stated reasons, respondent's motion to dismiss the petition is granted and that branch of respondents' motion seeking a preference is denied as moot. All other relief requested is denied.
The foregoing constitute the order, decision and judgment of this court.