A sports complex developer and town of Greenburgh officials have asked a state judge to dismiss a lawsuit brought by opponents in the ongoing legal battle over the town”™s decision to lease the foreclosed Frank”™s Nursery property on Dobbs Ferry Road.
Game On 365 L.L.C. and the town have both filed motions in state Supreme Court in White Plains to dismiss a lawsuit brought by Elm Street Sports Group L.L.C. and Simon Cohen, a Greenburgh resident who founded Burst The Bubble, a group opposed to Game On 365”™s plans to lease the vacant nursery property and redevelop it as a $6.9 million indoor sports facility, the Westchester Field House.
They contend that Elm Street Sports is trying to drag the town and Game On 365 through unnecessary litigation to delay the project and question Cohen”™s role in the lawsuit. The motion focuses on contradictory statements made by an owner of Elm Street Sports.
Elm Street Sports said it intends to withdraw its lawsuit, filed last October, since the town no longer plans to lease the property. The conpany”™s lawsuit claims that leasing the property to Game On 365 was a violation of county law, which prohibits the leasing of town-owned foreclosed property.
Greenburgh Town Attorney Tim Lewis said the town and Game On 365 will go forward with the motion unless Elm Street Sports withdraws its lawsuit with prejudice, meaning it can never file the suit again. A court date has been set for March 13.
The town has claimed that the lease was legal under state law, which supersedes county law. Last November, town residents by a 66 percent majority approved a referendum to allow the town to lease to Game On 365.
Elm Street Sports runs House of Sports in Ardsley, which opened last year.
In January, Game On 365 announced it would buy the nursery property from the town for $1.65 million to get around its opponents”™ legal challenge. Elm Street Sports, which has offered $3.5 million to acquire the property, said it would sue the town again if the town accepted Game On 365”™s proposal.
“It doesn”™t make sense for them to be negotiating with us while they are suing us,” Lewis said.
Donald Scherer, CEO of Elm Street Sports, said he filed the suit simply because the lease was not legal.
“Everyone knew it,” he said. “The fact that they decided that they didn”™t want to lease the space because they didn”™t like litigation is comical. Greenburgh lives off litigation.”
Scherer said that Game On 365”™s dismissal motion makes no sense and is simply an attempt to air some dirty laundry.
His opponents claim that Burst the Bubble, the group Cohen founded to oppose the fieldhouse, is a puppet entity funded by Elm Street Sports. Cohen has denied any affiliation with Scherer”™s company.
According to the lawsuit, Cohen is living rent-free in a 4,637-square-foot house next to the site owned by Irin Israel, Scherer”™s brother-in-law and a principal in Elm Street Sports. Cohen did not respond to requests for comment. Scherer did not dispute the allegation.
“It”™s dirty and disgusting,” he said. “But that”™s what happens when you deal with unethical people.”
Scherer said that his company has the purchase money ready and has proposed a smaller sports facility than the Westchester Field House to maintain the character of the neighborhood.
“We will not need as many building variances or parking spaces,” he said. “There will be less traffic. We have really the only bid they can look at.”
But Scherer said the bidding is “a scam” by Greenburgh officials. He said the town appraised the property based on values of comparable properties in Peekskill and Montrose, rather than in Greenburgh, where property values are higher. Scherer claimed the town wanted the assessed value to match Game On 365”™s bid.
Town Assessor Edye McCarthy said that to assess the property as a recreational facility, the town had to find similar properties, which required looking at properties outside of Greenburgh. She said the same process was used to assess House of Sports.
The motion by Game On 365 claims that environmental concerns raised by Cohen and opponents of the property were concocted to taint the public”™s opinion of the project. The motion questions why Elm Street Sports would want to buy a site that it claimed was toxic.
Scherer in December told the Business Journal the site was the “Three Mile Island of Westchester” and said it was improper for children to be playing on a field full of carcinogens. Those statements were cited in Game On 365”™s motion.
Elm Street”™s “cries of wolf were pure fiction,” the motion states. “Elm Street”™s true motivation in trumpeting these environmental concerns was to try and prevent Game On from constructing a facility that would directly compete with Elm Street”™s business.”
Greenburgh Supervisor Paul Feiner said he expects the town to make a decision on the purchase bids in March.
