Judge Tosses Lawsuit Meant to Stop FreshDirect from Moving to The Bronx

By Patrick Wall on June 3, 2013 12:00pm 

 Members of South Bronx Unite, a coalition that filed a lawsuit to stop FreshDirect from relocating to the South Bronx, outside Bronx Supreme Court in March 2013. In a ruling filed on May 31, a judge dismissed the lawsuit.
Members of South Bronx Unite, a coalition that filed a lawsuit to stop FreshDirect from relocating to the South Bronx, outside Bronx Supreme Court in March 2013. In a ruling filed on May 31, a judge dismissed the lawsuit.
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DNAinfo/Patrick Wall

BRONX SUPREME COURT — A judge has tossed a lawsuit meant to halt FreshDirect’s planned move to The Bronx, blunting a yearlong effort by local opponents to block the publicly subsidized project.

In a decision filed Friday, Bronx Supreme Court Justice Mary Ann Brigantti-Hughes rejected the petitioners’ argument that the city did not conduct a thorough review when it decided that FreshDirect’s proposed 500,000-square-foot facility in Port Morris would not harm the area.

She dismissed the lawsuit’s other claims on technical grounds.

While parts of the nearly $130 million public subsidy package offered to FreshDirect still need approval, and the petitioners could appeal the judge’s decision, her ruling represents a major victory for the online grocer and its backers.

“I am thrilled to learn that the plaintiff’s legal efforts to thwart FreshDirect’s relocation to our borough have been stopped, and their lawsuit has been dismissed,” Bronx Borough President Ruben Diaz Jr. said in a statement.

His office and its economic arm contributed $4.5 million in grants and loans to the project, citing the 1,000 new jobs the Bronx facility is expected to create.

“We are eager to move forward with our plans to bring thousands of jobs to The Bronx and make it easier for people to get fresh food,” added FreshDirect CEO Jason Ackerman.

The lawsuit was filed last June by South Bronx Unite, a coalition of Bronx groups and residents that argued the large subsidy was a misuse of taxpayer money for a facility that would send scores of delivery trucks rumbling through an already-polluted neighborhood.

The lawsuit claimed that the proposed facility violates the site’s original lease, that the project was ineligible for some of the subsidies and that the city’s Industrial Development Agency did not properly analyze the potential impact of the facility and its truck traffic.

Brigantti-Hughes wrote in her ruling that the agency determined the FreshDirect project would not seriously harm the environment “based on a thorough review of all areas of relevant concern.”

She did not get to the merits of the lease argument, which said the FreshDirect facility would prevent the construction of an intermodal rail hub on the state-owned, privately controlled site, as its lease requires.

Instead, she dismissed that claim and one that said the original lease was unconstitutional due to “procedural infirmities.”

The lawsuit’s final charge said FreshDirect should not have qualified for a state program through which it was offered $19 million in tax credits.

The judge dismissed this claim, saying the petitioners did not have proper standing.

Gavin Kearney, an attorney with New York Lawyers for the Public Interest who is representing South Bronx Unite, said the group was reviewing the decision and would consider appealing it.

“We’re going to continue to push this as aggressively as we can,” he said. “We’re far from calling it a day and walking away.”

More than $80 million in city subsidies for the FreshDirect project received preliminary approval last year. The state must still hold public hearings on some of its proposed subsidies.

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