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GIANARIS v. NEW YORK LIBERTY DEVELOPMENT CORPORATION

September 27, 2004.

NEW YORK STATE ASSEMBLYMAN MICHAEL GIANARIS, CONGRESSWOMAN CAROLYN B. MALONEY, CONGRESSMAN JERROLD NADLER, NEW YORK CITY COUNCILMAN ALAN JAY GERSON, NEW YORK CITY COUNCILMAN PETER F. VALLONE, JR., JEAN B. GRILLO, the DUANE/THOMAS NEIGHBORHOOD COMMITTEE and FROM THE GROUND UP, INC., Plaintiffs,
v.
NEW YORK LIBERTY DEVELOPMENT CORPORATION, CHARLES A. GARGANO, in his capacity as Chairman of the Board of Directors of the NEW YORK LIBERTY DEVELOPMENT CORPORATION, CHARLES E. DORKEY, JOSEPH H. HOLLAND, KEVIN S. CORBETT, FRANCES A. WALTON and DAVE CATALFANO, in their capacity as Members of the Board of Directors, and ASTORIA ENERGY, LLC., Defendants.



The opinion of the court was delivered by: THOMAS GRIESA, Senior District Judge

OPINION

after-the-fact testimony is simply not admissible.

THE COURT: Well, I'm not so sure I very strongly disagree with the idea that there might be some individual rights here.

  MR. BEHA: Your Honor said you weren't going to reach it, and that's why I'm saying we probably don't need to submit this.

  THE COURT: Let me just, before the morning is over, let me dictate a ruling.

  I want to thank all counsel for their papers and for their arguments. You've been very measured and thorough and helpful, and I appreciate it.

  We have an action brought by two members of the United States House of Representatives, Congressman Jerrold Nadler and Congresswoman Carol Maloney. Another plaintiff is New York State Assemblyman Michael Gianaris, two members of the New York City Council, plaintiffs, Alan J. Gerson and Peter F. Vallone, Jr. In addition, we have two organizational plaintiffs, the Duane/Thomas Neighborhood Committee and Jean B. Grillo, the president of that committee, and another organizational plaintiff, From the Ground Up, Incorporated.

  The record is sufficient to show that the Duane/Thomas Neighborhood Committee and From the Ground Up have as members persons with businesses in the lower Manhattan area, businesses in the part of that area which was affected by the World Trade Center disaster.

  The defendants are the New York Liberty Development Corporation, Charles Gargano, chairman of the board of directors of that organization, and various individuals who were members of the board of directors of that organization, which is sometimes referred to as LDC.

  Also sued as a defendant is Astoria Energy, LLC.

  My statement now is not going to contain a great deal of detail. The basic facts are described very clearly in the papers before me, and I will hope to make only a short summary. But it is necessary to start with the statute that is primarily in question, and that is a statute entitled the Job Creation and Worker Assistance Act of 2002. It is sometimes referred to by the acronym JCWAA, and it is found at 26 U.S.C. 1400L.

  Under the JCWAA, bonds could be issued to assist in the recovery of lower Manhattan from the World Trade Center disaster. A total of $8 billion in such bonds could be issued. They would be tax-exempt. They're referred to as New York Liberty Bonds or simply Liberty Bonds. $4 billion worth of such bonds could be issued by the State of New York and $4 billion of such bonds could be issued by the City of New York.

  Approval of the bonds issued by the state would be given by the governor. Approval of the bonds issued by the city would be made by the mayor. The proceeds from the Liberty Bonds would be loaned to qualified borrowers to finance residential and commercial projects primarily in what is referred to as the Liberty Zone in lower Manhattan, although, under certain circumstances, the borrowers could be involved in projects outside of the Liberty Zone.

  Although what I have stated is the formal structure, it is agreed that, in practice, a proposed borrower must arrange for the underwriting of an issue of bonds involving the amount sought to be borrowed. Neither the state nor the city would actually be involved in employing underwriters and managing such underwritings. This type of ...


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