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BROOKLYN     Press Release Main Page


For Immediate Release: February 28, 2007

U.S. Magistrate Judge’s Report and Recommendation
Re: “Goldstein v. Pataki” Reveals Strength of Plaintiffs’ Eminent Domain Challenge
Attorneys Optimistic of Convincing Presiding Judge Garaufis To Hear Case
in Federal Court; Challenge Will Proceed Regardless of Venue


BROOKLYN, NY—Though U.S. Magistrate Judge Robert M. Levy concluded today in his Report and Recommendation on the Defendants’ Motion to Dismiss in “Goldstein et al v. Pataki et al” that he believed the case should better be heard in state court, the narrowness of his recommendation, based on highly technical case law, gave hope to plaintiffs that they would ultimately prevail upon presiding Judge Nicholas Garaufis to hear the case in federal court.

In his report, Judge Levy found that the plaintiffs’ case was certainly appropriate for the federal courts, and that contrary to defendants’ arguments, was ripe to be heard. “Clearly, the proposed condemnations, and the consequent disposition of plaintiffs from their homes and businesses, pose a significant threat of harm,” wrote Levy in dismissing the defendants’ claims that the case was not yet ripe for federal court. He added that the “Plaintiffs’ Amended Complaint raises serious and difficult questions regarding the exercise of eminent domain under emerging Supreme Court jurisprudence.”

Judge Levy’s inclination to defer to the state court hinges narrowly on an “abstention” argument based on the 1943 case “Burford vs. Sun Oil Co.” Levy cited the greater expertise of state courts in deciding matters of state law, and wrote that “eminent domain is traditionally a matter of local concern.”

“We are pleased that Judge Levy rejected all of the defendants' strained procedural arguments except one” said Matthew Brinckerhoff, lead attorney for the plaintiffs and a partner in the constitutional law firm Emery, Celli, Brinckerhoff & Abady. “The ‘Burford’ abstention is a very rare and narrow exception to the general rule that federal courts are obligated to hear claims seeking to vindicate federal rights. We plan to fully address this discrete issue before Judge Garaufis, and we are confident that he will decide to hear our Public Use Clause claim on its merits.”

Jennifer Levy of South Brooklyn Legal Services, counsel for tenant-plaintiffs in the case, added that “The ‘Burford’ abstention is meant to apply in cases in which there is a complex state statute dealing with the substantive area of law at issue. In this case, the state statute simply describes the procedure by which eminent domain proceedings are heard; the area of law under which the case is brought is purely federal, so federal court is the appropriate forum.”

Ultimately, the decision on the defendant’s Motion to Dismiss rests in the hands of Judge Garaufis. Attorneys for both sides will have 10 days in which to weigh in with the judge. “Whether or not the plaintiffs’ case is heard here or in state court, they intend to win on the merits,” said Candace Carponter, lead legal volunteer for Develop Don’t Destroy Brooklyn, which has organized the legal team representing the diverse group of plaintiffs.

Regardless of the federal court’s decision on whether or not to hear this case, a challenge to New York State’s abusive and unconstitutional use of eminent domain for the benefit of developer Bruce Ratner’s “Atlantic Yards” development proposal will go to court. If Judge Garaufis grants the Motion to Dismiss, the plaintiffs have the right to appeal to the federal 2nd Circuit. If necessary, they will re-file their challenge to the abuse of eminent domain in New York Supreme Court, a remedy expressly permitted under Judge Levy’s recommendation.

Click here for a PDF of Judge Levy's report.


DEVELOP DON’T DESTROY BROOKLYN leads a broad-based community coalition
fighting for development that will unite our communities instead of dividing and destroying them

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