Port Chester to hire own lawyers in eminent-domain case: Westchester NY Journal News, 8/8/07

By Liz Sadler

The village [of Port Chester NY] is looking to hire its own lawyers to fight the long-standing eminent-domain lawsuit against businessman William Brody.

The Board of Trustees is expected to hold a special vote later this week to hire the White Plains law firm Wilson, Elser, Moskowitz, Edelman & Dicker as special counsel in the suit. That vote had been scheduled for Monday, but was postponed after the board failed to gather a quorum.

The seven-year suit has so far cost the village $197,000. It had been sharing lawyers and legal fees with G&S Investors, the developer of the massive shopping and entertainment complex that swallowed Brody's downtown property.

But in the wake of a federal judge's ruling that the village violated Brody's constitutional rights when it condemned and then seized his property, those lawyers are recommending that the village seek separate representation.

Mark Weingarten, the White Plains attorney for G&S, declined to discuss the reasons for the recommendation, saying, "I'm not going to get into discussions (about) the two clients that we're representing."

Mayor Dennis Pilla said the new firm would focus on the damages phase of the trial. The board is not putting a cap on what it will spend for the new firm's services, but will ask the new attorneys to bill the village monthly and also to project each following month's expenses, Pilla said.

"Since the judge has ruled, the village and G&S have different interests to protect," Pilla said. "This is a very, very important and really marquee case that is proceeding as we speak."

Brody's four South Main Street buildings were seized by the village in 2001 and knocked down as part of the downtown redevelopment. A shopping mall and parking lot rose up in their place.

Brody's fight centered on whether the village had properly informed him of its intent to seize his properties. The village announced its intention in a legal ad in The Journal News in July 1999 following a public hearing on the matter. Brody then had 30 days to challenge the village's "determination and findings" regarding the project.

But Brody said he didn't find out until 2000 that the village was going to seize his properties. By that time, his 30-day window had long since expired.

In July, U.S. District Judge Harold Baer Jr. ruled that village officials did not give Brody proper notice of their intention, depriving him of the right to fight the seizure. The decision came four months after a trial in federal court in Manhattan.

Another trial is scheduled for December to determine damages owed to Brody. A state court has already ruled the village must pay Brody $1.2 million plus attorneys' fees.

"The unusual thing about this case is that although Bill's property was taken away unconstitutionally, they've now knocked it down and put a parking garage on it," said Bob McNamara, a lawyer for the the Institute for Justice, a nonprofit organization based in Arlington, Va., that represents Brody.

McNamara said Brody still wants to get back his property. The village transferred the land to G&S, which conveyed it to the village's Industrial Development Agency. The IDA then leases the land back to G&S, which, in turn, leases it to retailers.

McNamara said he had received a letter from G&S asking for the company to be dismissed from the lawsuit, but a dismissal is unlikely unless the developer concedes that Brody is entitled to reclaim his property and relinquishes its lease agreements.

"This has always been a lawsuit about Bill's ability to keep his property," McNamara said. "He was a property owner in Port Chester and he believes he deserves to be a property owner in Port Chester once again."

Westchester NY Journal News: http://www.nynews.com