CHARLES 5. WEBB III STEVEN A. BERGER THOMAS E. HONE KENNETH J. ApPLEBAUM JONATHAN ROGIN JUDITH Z.

KATZ

ADAM H. BRODSKY

BERGER & WEBB, LLP ATTORNEYS AT LAW 1633 BROADWAY

NEW YORK, NEW YORK 10019 (212) 319-1900

TELECOPIER (212) 319-2017 (212) 319-2018

WWW.BERGERWEBB.COM

August 4,2010

SUTTON KEANY OF COUNSEL

BY HAND

Ms. Rita DiPietro

Supreme Court of the State of New York County of Kings

360 Adams Street, Room 758 Brooklyn, New York 11201

Re: Peter Williams Enterprises, Inc. v. New York State Urban Development Corp. et al.; Index No. 11116/2010 (Gerges, J.)

Dear Ms. DiPietro:

As you know, we represent the New York State Urban Development Corporation ("ESDC") in the above-referenced proceeding. Enclosed please find a courtesy copy of the Affirmation of Charles S. Webb III in Further Support of Motion to Dismiss the Complaint.

Sincerely yours,

Kenneth J. Applebaum

cc: Matthew Brinckerhoff, Esq.

Jeffrey Braun, Esq.

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS

Plaintiff,

Index No. 1111612010

PETER WILLIAMS ENTERPRISES, INC.,

-against-

AFFIRMATION OF

CHARLES S. WEBB III IN FURTHER SUPPORT OF MOTION TO DISMISS THE COMPLAINT

NEW YORK STATE URBAN DEVELOPMENT CORP., and BROOKLYN ARENA, LLC,

Defendants.

CHARLES S. WEBB III, an attorney duly admitted to practice before the Courts

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

1. I am a member of the law firm of Berger & Webb, LLP, counsel to the

ESDC,l a defendant in the above-captioned proceeding. I submit this affirmation in further

support of Defendants' motion to dismiss the Complaint. I am fully familiar with the facts set

forth herein.

2. Plaintiff fails to directly address the arguments for dismissal presented by

ESDC, and cites no authority (except for one case cited for a non-contested point) in support of

its position.

3. Plaintiff-does not address the fact that Lot 7501 is not a true tax lot, as

evidenced by the condominium declaration for 24 6th Avenue, which only assigned new tax lots

1001 through 1021 to 24 6th Avenue, the Easement Agreement, which never mentions Lot 7501

but rather Lot 35, and the printout from the Department of Finance website (attached to Ms.

Capitalized terms not defined herein shall have the meanings ascribed to them in the Affirmation of Charles S. Webb III in Support of Motion to Dismiss the Complaint, dated May 20,2010 (the "Webb Aff.").

Bobrow's affirmation), which indicates that Lot 7501 has a Building Code of RO, which means

"Administrative Condominium Billing Lot". See Webb Aff. ,-r,-r 3-9?

4. Plaintiff tries but fails to address the facts that: (i) when ESDC

condemned title in fee to 24 6th Avenue through eminent domain, any easement or other property

interest that PWE had in the property was extinguished by operation of law, see, e.g., Ossining

Urban Renewal Agency v. Lord, 39 N.Y.2d 628, 630 (1976), (ii) when ESDC acquired 38 6th

Avenue, it acquired Plaintiffs interest in the easement which ran with that property, see Will v.

Gates, 89 N.Y.2d 778, 783 (1997), and (iii) when ESDC condemned the fee interests in 24 and 38 6th Avenue (Lots 35 and 48), ESDC had unity of ownership of both properties, and therefore

the easement held by Plaintiff was automatically extinguished. See, e.g., Simone v. Heidelberg,

9 N.y'3d 177,180 (2007). See Webb Aff. ,-r,-r 10-12,20.

5. All Plaintiff says in response to these points is that the Easement

Agreement did not create an easement but "a fee interest in the former owner's property above

the plane". (Brinckerhoff Aff. ,-r 38.) This is meritless and besides the point in any event.

6. The title of the Easement Agreement, the terms thereof and the schedules

attached thereto all conclusively demonstrate that Plaintiff was merely granted a light and air

easement as well as an easement for access on 24 Sixth Avenue. See Webb Aff., Ex. 5

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Plaintiff erroneously takes issue with ESDC's submission of Ms. Bobrow's affmnation on a motion to dismiss. The affmnation is a proper vehicle for the submission of the printout from the Department of Finance website which is documentary evidence undermining the Complaint and thus appropriate under CPLR 3211(a)(1). Moreover, the affirmation is also properly before the Court on a motion to dismiss under CPLR 321 1 (a)(7). See, e.g., Steiner v. Lazzaro & Gregory, P. C; 271 A.D.2d 596, 597 (2d Dep't 2000) (granting motion to dismiss under CPLR 3211(a)(7) and stating "Where, as here, evidentiary material has been considered, the court must determine whether the proponent of the pleading has a cause of action, not whether he or she has stated one"); Biondi v. Beekman Hill House Apt. Corp., 257 A.D.2d 76, 81 (I" Dep't 1999) ("In cases where the court has considered extrinsic evidence on a CPLR 3211 motion, the allegations are not deemed true ... The motion should be granted where the essential facts have been negated beyond substantial question by the affidavits and evidentiary matter submitted.") (internal quotation marks omitted).

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(Easement Agreement)." In fact, Plaintiffs counsel himself in his EDPL § 207 petition

described Plaintiff as "own[ing] the house located at 3 8 6th Avenue and an easement preventing

building outside the current zoning envelope of the abutting property, 24 6th Avenue". (Webb

Aff., Ex. 6, ~ 13 (emphasis added).) Even the sole document on which Plaintiffs case is based,

i. e., a Recording and Endorsement Cover Page generated by the Department of Finance Office of

the City Register, indicates that Plaintiffs interest in 24 Sixth Avenue was merely an easement.

Webb Aff., Ex. 5.

7. Moreover, even assuming arguendo that Plaintiffs interest was a partial

fee interest, that interest was extinguished when ESDC acquired 24 6th Avenue by eminent

domain. See Ossining Urban Renewal Agency, 39 N.Y.2d at 630.

8. Plaintiff, repeating its allegations from the Complaint, contends that

ESDC did not comply with the EDPL because its notice for the public hearing and determination

and findings did not list Lot 7501. However, Plaintiff fails to address the fact that ESDC's

notice and determination and findings both identified the property as Block 1127, Lots "1001-

1021 (formerly Lot 35)" with the address "24 6th Avenue (Unit #'s B1, 101-105,201-205,301-

305,401-405)", and thus the entire Lot 35 as well as all the new lots created by the condominium

declaration for 24 6th Avenue were listed. See Webb Aff. ~ 16.

Indeed, the Easement Agreement itself describes the interest conveyed by the document as a light and air easement, not a conveyance of a partial fee interest. Webb Aff., Ex. 5, ~ 11 ("In the event that the Building Department ... requires modification(s) of this document to permit PWE ... to use the granted air and light easement for legal light and air, Yoshizumi and its successors will cooperate and execute such documents as needed provided that there is not increase of the easement granted.").

In addition, Schedule C-l of the Easement Agreement, which sets out the metes and bounds of the area burdened by the easement, is entitled "EASEMENT to Peter Williams Enterprises, inc." and the last sentence of the description states "Hereafter being known as Area 'R' referred to as the air light easement and in favor of Peter Williams Enterprises, inc." Notably, Plaintiffs opposition papers which quote the metes and bounds description from this schedule delete these express indications that the interest was only a light and air easement. (Brinckerhoff Aff. ~ 12.) Similarly, Schedule C-3 of the Easement Agreement depicts the area burdened by the easement, describing it as "Area of Easement in Favor of Peter Williams Ent."

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9. Plaintiff fails to address the fact that ESDC's Notice of Petition and

Petition identified the property as "Block 1127, Condo Nos. 1001-1021,24 6th Avenue, Former

Lot 35," specified that Plaintiff was an easement holder, and included an acquisition map for 24

6th Avenue that set forth the metes and bounds, thereby satisfying EDPL § 402(B)(3)(c)

(requiring description of the property by block/lot or metes and bounds), and that, in response,

Plaintiffs counsel submitted an answer in which he used 24 6th Avenue's former lot number, Lot

35, to identify the property and to assert Plaintiffs interest therein. See Webb Aff. ~ 19.

10. Finally, with respect to the Release, Plaintiff fails to address the fact that,

by its terms, the Release discharges "any and all claims and causes of action which Claimant has

or could have brought against ESDC in the within condemnation proceeding, including but not

limited to .... " Thus, the Release covers any claims in the condemnation proceeding that

Plaintiff could have brought relating to any of his property interests. See Webb Aff ~ 13-14.

Indeed, Plaintiff s failure to carve out compensation for his easement from the release

undermines its position here.

11. In short, Plaintiffs failure to directly address the numerous arguments

presented by ESDC for dismissal of the Complaint is an implicit acknowledgment that the

Complaint is legally deficient and should be dismissed.

DATED:

New York, New York August 4, 2010

CHARLES S. WEBB III

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