57°
GREENBURGH, N.Y. — In answer to a lawsuit filed against the company in October, Game On 365 has responded with its own lawsuit against Elm Street Sports Group and Simon Cohen, a Greenburgh resident who founded Burst the Bubble, a local group opposed to the Westchester Field House's construction.
Cohen and the Elm Street Sports Group, which runs the House of Sports complex in Ardsley, are being accused of raising arguments "for no other purpose than to drag the town and Game On through unnecessary litigation" to force Greenburgh and Game On to deal with substantial costs and years of construction delay, according to the Feb. 12 filing.
Cohen's Burst the Bubble joined Elm Street and several Greenburgh residents in a lawsuit in October that stated Greenburgh's lease with Game On to build a sports bubble on Dobbs Ferry Road would violate tax codes and state and local laws.
Now, Game On's motions not only asks that the claims be dismissed — since Greenburgh is now selling, not leasing, the property — but also seeks sanctions.
In the meantime, both Game On and Elm Street are still vying for the purchase of the old Frank's Nursery property. Elm Street is offering $3.5 million for the property; more than double Game On's $1.65 million proposal.
Game On claims that Burst the Bubble acted as a "puppet entity" that was funded by Elm Street. Cohen had been living rent-free in a $6,000-per-month house paid for by Irin Israel, who is married to Stephanie Scherer, the sister of Donald Scherer, Elm Street's chief executive officer, the lawsuit found.
The Game On filing shows a recorded statement from Cohen in Westchester County Family Court admitting that after his recent divorce, his friend — Israel — was helping him afford his rent.
"Burst the Bubble is a bogus non-profit serving as a front for the advancement of Scherer's/Elm Street's goal of shutting out the competition," the Game On's filing states, adding that such collaboration is "tantamount to a fraud."
In response to the litigation, Israel said the motions are "purely sour grapes" and are meant to act as a screen for Greenburgh's history of lengthy litigation, including the October lawsuit.
"The House of Sports and Elm Street Sports Group does not employ Simon Cohen," Israel wrote in an email representing the group's response. "There is nothing improper about the personal relationships that some of the shareholders may have with him."
If the motions are not promptly withdrawn, Elm Street will oppose Game On "vigorously and seek additional appropriate relief," according the group's statement.
Greenburgh Town Supervisor Paul Feiner said the motion hasn't affected the town's decision between the two bidders.
"We're still considering both offers and expect to have a decision within the next month," Feiner said.
Comments (8)
To rivertownsguy,
Politeness and presenting yourself as a regular guy just doesn't cut it when you are fact challenged; assuring readers that you know the real story when you don't. All of this is obvious while saying you respect my opinion but it is wrong.
You complain of you and your neighbor being misled but remain untroubled by the Town Supervisor and GameOn 365 telling Referendum voters that there would be $5 million for Greenburgh and $250,000 toward the enviro costs while knowing that this would only be possible were the Lease signed by GameOn 365: which it was not. They could have signed and taken on this obligation since late August (well before their roadside signs went up) but GameOn 365 never did sign (before or after the Referendum) probably because they lacked the funds required in escrow upon signing. Concern over the lawsuit? What was at risk had they signed? NOTHING. The Court would merely have voided the Lease.
You say the Lease is a great deal for Greenburgh and you know because you "claim" commercial real estate experience. When have you seen a 15 year lease with the last 9 years yielding but 1% annual increases (below CPI) and 1% on not the total including taxes but on the remainder after taxes are subtracted which translates to less than $30,000 in annual bumps. When have you seen a commercial lease lacking rent security; more so from a start-up with no hands-on operating experience? And if ever a tenant could afford to pay more it would be GameOn 365 which predicted (for the benefit of would-be investors) FIRST YEAR profits in excess of $1,000,000 despite the principals total lack of experience in the field. A RFP which produced but one would-be rental tenant?
A RFP with that kind of success is an RFP which should have been withdrawn, redrafted and re-offered perhaps adding the services of a retained real estate Agency and even some display advertising. But still you resist the notion that the Lease with GameOn 365 was anything but a sweetheart deal.
You refer to Frank's and other nearby uses as commercial and non-conforming to the current Residential zoning and wonder why no one has complained about this seeming incongruity. Like someone has been maliciously picking on GameOn 365 for daring to seek a commercial use in a residential zone while the area is awash with commercial enterprises. For someone like yourself who claims to be familiar with real estate, I wonder how come you appear to be ignorant of the phrase "grandfathered" which explains why there are existing non-conforming commercial uses within a residential zone. And that this commercial "exemption" to the current zoning is taken away when the non-conforming use is interrupted as was the case when Frank's went out of business. This does not mean that the welcome mat is out for new commercial uses in a residential zone. Before your ignorance further degrades the professionalism of others engaged in the field, you need some refresher courses before you return to your keyboard.
You claim from your "research" that the County law should by all rights be "defunct" and cite County "lawyers" who agree with this. Yet you fail to explain why the law has not been changed or challenged if that were really the County's position -- which it assuredly is not. Furthermore you don't even understand the law or the financial implication that Greenburgh endures when taking over property for non payment of taxes. First of all it is not only County taxes that are involved but the taxes due to all taxing districts. These includes the Fire District, the Sewer District, the School District. Fair or not, foreclosed or not, the Town of Greenburgh is responsible to advance the money for all these taxes due whether or not Greenburgh has received them from the property owner. Currently Greenburgh needs to collect about $1.4 million of back taxes just to break even. The County law recognizes this drain on taxpayers and to ease their lawful burden, the County law obligates the municipality, which has foreclosed on real estate for tax arrears, to halt this drain and recapture those District taxes already accrued. The only way to obtain such large numbers is to sell the property. if it were a couple of hundred dollars or even a few thousand, perhaps a profitable lease would be able to bring in enough to do this; how not only are there few, if any, properties which go to foreclosure for such small amounts but lease rent alone is not going to return the outstanding $1.4 million. Certainly the lease with GameOn 365 would not do so in the absence of "key money". And the examples you cited for property being used by the subject community are not incompatible with the law which also provides for the foreclosed property to be used for a municipal purpose -- such a purpose as to rent to a private for-profit owner is not eligible. Needless then to comment upon perhaps is your belief that the GameOn 365 lease is so great that it doesn't matter to you whether or not it is legal.
Has no one called the lease a sweetheart deal? I for one raise my hand since I have called it such since it was first publicized.
You mention that at onsite meetings held at Frank's that they were biased in favor of the competition and had you been there (instead of staying home with your children) perhaps you would have observed that the Town (Feiner) hosted two meetings on ITS property, invited the news media, brought in its complaint Department heads (Lewis, Madden, Byrne and McCarthy) and GameOn 365 gave out ice cream and t shirts. Hardly an advocacy program run by subversive agents allied with competitor House of Sports.
The population of Greenburgh is 90,000; what gave you the notion that Mr. Cohen sent multiple mailings to everyone?
You claim that you yourself are not taking any side but come on, give readers some credit for being able to read and understand what your wrote. You have no trouble viewing a needle-like tall radio tower and equate its presence against the skyline with that of an almost 8 story high bubble of near 60,000 square feet.
You believe that the environmental problems are of no concern because everyone shopped at Frank's without incident and think that this then is the equivalent of a soccer-playing child falling face down on contaminated soil on GameOn 365's outdoor fields. You claim to be a parent and, if so, let your children be the first to play there without any remediation taking place. Your statements that there were no complaints about shopping at Frank's when it was Frank's just are so absurd that all your written attempts to be "just simple folks" (village volunteer, live nearby, you respect Ms. Livson, you watch town meetings from afar...) all are just contrivances to allow you to position yourself as an impartial equal which you by no measurement are. Your research and experience are figments of your vivid imagination and I can't find anything you wrote that bears any resemblance to either a clear understanding of the issues or a reasonable representation of facts which you accuse others of distorting.
In truth, I assume you are but one of Feiner's many "plants" that he puts on display ever since he has taken over the Frank's Nursery operation.
Everything about this deal stinks before, during and on the way to after. And it would still stink without House of Sports ever taking any interest whatsoever. By the way, since the real estate crash of 2007 has still not found real estate prices returning to those former rarified levels, what gives anyone any basis to predict with certainty that owning the property 15-17 years from now (when a lease with GameOn 365 would expire) would not find prices fallen back to 2007 levels? No one predicted as close as 2006 that prices would plummet the following year. Certainly neither you nor Mr. Feiner nor I have any special expertise in predicting the future. And this in turn is the final reason why the County law exists: to prevent municipalities from becoming real estate investors. Foreclose, Sell the property and Pay the overdue taxes with the Sale Proceeds or, if applicable put the property to a needed and immediate town use. "Defunct law", indeed!
Hal Samis
I am presuming from your user name, Mr. Rivertown, that you do not live near the site of the proposed sports facility. How would you like an 83 foot structure in your immediate residential area? The property is zoned for single family homes with a height limit of 25 feet. That was the reason I signed on to the law suit. While you think it's possible that House of Sports had an ulterior motive for instituting the law suit, I am still in agreement with it's purpose.
I disagree with you that the lease with GameOn was a good deal for the Town. The rent payments would barely cover the property taxes that the Town would have to send to the other taxing districts (School, County, Fire, etc.) while according to GameOn's business plan, they would be making millions in profit.
I also disagree with your opinion that the Town should violate the law because the law doesn't make common sense. It seems to me that the intent of the law was to either put foreclosed properties back on the tax roll or to use them for municipal purposes, which is the case in the examples you cited. The intent was not to give sweetheart deals to private individuals.
Another benefit of the law suit was to focus attention on the serious contamination problem on the property. The Town attempted to limit the scope of the testing by not revealing that it was used as a dumping ground for waste from the White Plains Urban Renewal Project. The Town also never disclosed to the testing firm, Woodard & Curran, that the intended use would include an outdoor space which would directly affect the amount of testing needed and the subsequent remediation costs.
You say you were manipulated and misled. I have spoken to many residents who voted for the referendum who feel exactly that way. They were not aware of the 83 foot height, the contamination, the illegality of the lease, the terrible financial deal because of the true value of the property, etc. The said that they never would have voted for it if these facts were revealed at the time.
The Town has officially abandoned the lease and is now entertaining offers for the sale of the property. If they would have followed the law from the beginning, the property could have been back on the tax rolls by now and all this time, effort and money would have been saved.
dlivson, please allow me to clarify a few things. I am happy to respond and have an open discussion, I'm not taking any side, but I hope you can see some things from my point of view. While I am a volunteer in a Rivertown, I live very near to the Frank's site, with a downhill view of Frank's compared to the residents down Worthington. While the bubble wouldn't be visible from most homes in the area, mine would have a winter view I'm sure. I currently look at 100 ft high power lines, and the WFAS Ticonderoga radio antenna on Secor that must be 250 ft high, I'm not worried about my "view". Let's be honest, I'm not exactly looking out on the Hudson right now.
Let me first say that I was speaking about my neighbor who was misled when she signed onto that lawsuit, I can only speak to what I know about her situation, not yours. There is clearly an ulterior motive by the House of Sports, but I respect your right to sign on to the lawsuit. You have every right to not want something in your backyard, and I respect that. I just ask that we all stick to the facts. If you have a strong emotional reason to dislike something, that's fine, but let's stick to the facts. In general, Greenburgh has enough lawsuits though and I really don't think it helps when residents sue their own Town, but that's my personal opinion.
I don't want to go into every detail about the many topics you raised, but please just look at the other side. I think everyone has seen your points in many articles, the Journal News certainly ran enough one sided pieces to make those points, but please consider a few things.
Zoning for instance. The golf range, Elmwood CC and Franks are all zoned residential. The entire Town of Greenburgh practically operates as non-conforming use, that's why they are working on a new comprehensive plan. Was Frank's not a commercial business on a residentially zoned parcel?? Is the range not commercial? Hasn't Elmwood CC had a 45 ft tennis bubble ON Worthington for the last 10 winters?? It's there right now, I pass it every day and it's barely noticeable...but is it zoned for it? All the talk about a glowing monstrous bubble, it's actually funny to me because I actually go to domes with my kids. I've been to 2 others in Westchester and those scare tactics don't work on me. Where did we all see or hear this rumor? Oh yes, on Mr. Cohen's mailers.
When it was Frank's nobody cared that it was a non-conforming use, nobody seemed to care about what was buried there, nobody cared about the power lines, nobody cared about the traffic it caused every Christmas and Mother's Day, or the people that came from all over when there wasn't a Home Depot to go to. Whatever was buried at Frank's 10 years ago is still there, and if it posed any risk then, there is certainly less of a risk now. Any environmental engineer will tell you the same, but we all went to Frank's while these dangerous chemicals were being used and sold.
Also, I would suggest you do your homework on the lease deal. The Town was going to receive taxes PLUS an annual rent payment in addition to the taxes. That is a fact, check the lease....you are quoting things that I only read on Mr. Cohen's mailers. The lease was posted online, if you could read the mailers you should certainly read the lease. I spent years in commercial real estate, and that was a good deal for the Town. Even many of the detractors were not complaining about the dollar value of that lease. The one argument made was that the taxes and lease payment be separated, and it was. I watched many meetings on TV and I don't think I saw Mr. Bernstein ever call it a sweetheart deal. I did my homework, I read other similar leases, I know the appraised value of the land, what is your assessment based on? I did not hear from one business person, or realtor that called it a "sweetheart deal". Where did I hear it though?? Oh yes, Mr. Cohen's mailers.
I also suggest you find out from the County, exactly what the intent of their law was. The way taxes are collected has changed since that law was written in 1948, so when Greenburgh foreclosed on the land, they did not owe anything to the County. When the law was written, the County wanted to assure that they were made whole on any back taxes, thereby requiring the Town to sell the land. By the way, there was no time table on selling the land. The Town could have sold it after the 15 year lease and still complied with this "law". These days, taxes are no longer collected in the same manner. The County will tell you this as they told me, and they will also tell you that is why they consider the law defunct. Again, I'm citing facts and I'm not suggesting the Town should ever break the law. From attorney's I've spoken to at the County level, the Town would have won that lawsuit. I'm glad they didn't go down that road to fight for 3 years and waste our money to prove a point.
Interestingly though, in a December issue of the Westchester Business Journal, the CEO of the House of Sports said he would keep that site locked in litigation for 5-7 years! Again, that is fact, it's his quote. Do you think he's doing that because he doesn't want traffic on Dobbs Ferry Road or he's worried about a glowing bubble? I'm sure if he gets to build his proposed facility there he will want all the traffic he can get.
I'm actually proud of Greenburgh residents for supporting that referendum despite the bad press, the negativity, the Journal News articles, and the mailers. I read 6 articles in the Journal News leading up to the election, one more negative than the next. All that House of Sports advertising must help slant those articles. There were at least 8 mailers sent out, many of them went TOWN wide! We have 90,000 residents.....do you know what that must have cost Mr. Cohen? News 12 covered the meetings on the Frank's site which was also negative in tone, but despite all that negativity, almost 70% approved it. If not for the coverage and the mailers, it probably would have been 80%.
Is it that hard for you to believe that most residents in this Town want a sports bubble? I live close to it, and I signed a petition in favor of it. I have young kids, most people I see opposing it are elderly or have no children. This Town is very diverse, all ages, all races, retirees and young families, we're not all going to want the same thing. I understand you may not want it in your backyard, but nobody ever wants anything in their backyard. Why do you think the acronym NIMBY exists? It's so common in real estate, so I'm not surprised that you're saying Not In My Back Yard. I'm also guessing you don't have little children?
Something is going to be built at Frank's, and it's not going to be residential homes, I think we can all agree on that.....so it's not about the zoning from 50 years ago, it's about what makes sense going forward. We're talking about an indoor space for kids to play, Iet's keep it in perspective. This is a good thing we're talking about, especially if it creates competition for those of us who actually use these facilities.
For other reasons I was looking back at older Daily Voice articles, noticed 11 comments on this old article and discovered your new "voice". Unfortunately I don't have the time to respond right now but perhaps later tonight and certainly no later than Saturday. Be prepared and review your notes because for one who claims to have put in the hours, your comments are fact-challenged.
And since the Town Board essentially parrot Feiner, to be in opposition to one is to be in opposition to all. If I appear to be in opposition to Feiner, that is the result of no one but Feiner's actions.
Hal Samis
I must admit, I'm not a regular at Town Hall but I have watched meetings on tv occasionally. It's hard to get there on a school night when you have young children. I never get involved in these discussions, and as you can see by the number of posts, most residents couldn't care less about this topic. I assume that Halmarc is the Hal I always see on tv at the meetings, who sometimes has intelligent comments, but really seems to have a problem with everyone on the Board, especially Mr. Feiner. Unfortunately I don't view his comments as being fair and objective, but I read them and I won't comment either way. I'd just like to make a point from my point of view. I'm a resident with 3 children under the age of 10, who will live in Greenburgh for a while longer, who is paying high taxes for terrible schools.
When I received 6 mailers last summer, telling me that a sports complex was a horrible thing for Greenburgh, I was immediately suspicious. Who is paying for these? This must be costing someone a fortune I thought. I suspected there was more to the story, and it was no surprise to learn that the House of Sports was behind it all. In every article I read, they never denied any of the facts presented. I am happy to have learned this, I feel I was manipulated and misled, though I didn't fall for it myself. However, an elderly neighbor of mine did. She actually signed on to the suit brought against the Town because she thought they just wanted to stop the bubble. The attorney that convinced 20+ elderly residents to sign onto the lawsuit is representing the House of Sports that now wants to build their own sports facility on that land. She feels used, she was a pawn and she's very upset about it, and Hal, even you must see that what they did was manipulative and wrong.
Another point about this lease, I don't care if it was signed, not signed, legal or not legal. The lease was a great deal for Greenburgh. How can anyone argue that? Lease payments for 15 years, plus taxes, and we retain ownership of the land! I did my homework before voting for the referendum, I compared it to other similar leases in the County, it was a great deal. How is selling it any better? Leasing the land was a good deal, I liked it, most residents voted for it, and thanks to the House of Sports and Mr. Cohen, we can no longer pursue that option. Funny that now the House of Sports wants to buy the land...seems like this was their plan all along.
I had an email forwarded to me from Mr. Cohen's Burst the Bubble "non profit" over the summer. Upon discovery of this county law that claimed the lease was illegal, they sent an email that read "We have done it, we have Burst the Bubble". Congratulations, you killed a good deal for all residents and prevented competition that would further help a dad like me. I'll be sending my kids to sports facilities for the next 15 years, common sense says having two places for consumers is better than one. And while you're at it, scare the hell out of some elderly neighbors so they sign onto your lawsuit, and then build a sports facility there anyway that they don't want. Nice job indeed.
Last point, do some homework and find out the truth. One post said the Town was colluding to pull off an illegal deal?? Enough with the scare tactics and false headlines, you sound like the Journal News! Call the County or other municipalities and find out about that County law. It's defunct, written in 1948, and no longer matters in Westchester, and there has been discussion since 2002 to have it removed from the books. As a matter of fact, there are almost 20 sites in the Country, taken over my municipalities via tax foreclosure, that have not been sold. They are being used for Town Halls, parks, police and fire stations throughout the County. Greenburgh should have the right to lease land that THEY own, again, please use some common sense. Who cares what the intent of that law was in 1948, the County itself admits it's defunct, and that lawsuit could open a whole can of worms for other Towns who are utilizing land obtained in the same manner as Frank's Nursery. And all this for what, so the House of Sports can keep competition out of the Town?? It is scary that a business can come into our Town and bully the Town Board, residents, and can even affect other Towns in the County all for the sake of their bottom line.
Hal, I respect your opinion and I agree with many points you make....but this time you are being blinded by your hatred for Mr. Feiner. You're on the wrong side of this one.
GameOn 365 and Feiner tried to collude an illegal deal and got caught with smart, and astute legal reasons by smarter and more astute residents. Shame on Feiner and his feckless Board and GameOn 365, who tried to play the game and lost! Maybe if they hadn't all gotten trophies when they played non-contact soccer they would have learned how to lose with dignity!
Let the property be sold to the highest bidder, period. Who cares where someone lives, for how much, who divorced who, etc... that is all meaningless, personal, issues with no relevance. Let the market be the market. Greenburgh sells the real estate to the highest bidder so they can develop the property for the highest and best use.
Cry me a river is my immediate reaction. As it is just barely still black history month, file this story under the pot calling the kettle black.
Wasn't it GameOn 365 that did not sign the Lease authorized by the Town Board in August 2012? Wasn't it GameOn 365 that did not sign the Lease in September, October or even after the Referendum's consent?
Wasn't it GameOn 365 which put up roadside signs before the Referendum which proclaimed $5,000,000 for Greenburgh? Wasn't it Feiner and his buddies at GameON 365 who told voters to vote yes that GameOn 365 would be contributing $125,000 toward the cost of the Enviro study and an additional $125,000 (this round not a contribution but an advance rent payment) and that this was evidence of GameOn 365's good faith and commitment to Greenburgh.
Neither the $5,000,000, the $125,000 nor the second $125,000 would be forthcoming without any legal obligation to do so since the only obligation would exist upon SIGNING the Lease. Both Feiner and GameOn 365 knew this before the Referendum but remained silent.
GameOn 365 was, in essence, being given an "at no cost, no risk option" to hold the property off the market while the principals scurried around to find investors willing to fund the project. Even though GameOn 365 had obtained numerous guarantees and opportunities to walk away from a signed Lease (they concurred on the language), it was still reluctant to sign because returnable escrows were required on signing -- escrows that GameOn 365 was unable to provide. Thus their avoidance of signing the Lease.
But that was last year's news.
Now with GameOn 365 unable or unwilling to match the higher purchase offer from Elm Street, GameOn 365 is maneuvering to return to a Lease which is what this revivalist squawk is about. GameOn 365 is seeking to discredit Elm Street but even if their outrageous claim were true (I have no basis to make any determination) what does it have to do with anything? The October lawsuit (ask yourself. would it even matter if Simon Cohen were the sole owner of Elm Street or was just an employee) since the relief the lawsuit seeks is to have Greenburgh comply with existing law: that property taken in foreclosure for non-payment of taxes is required to be sold so as to reduce the harm to Greenburgh taxpayers who not only are owed the Greenburgh portion of property taxes but also those District taxes (Fire, School, Sewer...) that Greenburgh is obligated to pay even without collecting. Only a sale can provide this uncollected and advanced money; the Town Board-approved Lease to GameOn 365 made no provision for such repayment.
So why is GameOn 365 now filing such a frivolous lawsuit? Those who have opposed this deal on grounds other than the use and the structure's size and zoning issues did so all along knowing that it was a lousy deal for Greenburgh taxpayers. 15+ (rent payments commence with the opening) years of below market rent which gives GameOn 365 a sweetheart deal and competitive advantage with the result that the Town was subsidizing the GameOn 365 principals who continue to ignore this truth when they rant that it is the existing competition who is acting unfairly.
However the harsher reality is that GameOn 365 just doesn't have the funds to proceed either by purchase or by lease. In their business plan pitched to would be investors they suggest that the project will be an immediate financial success with over $1 million in profits the very first year of operation. Sounds like a great deal but before you whip out your checkbook consider that, in addition to the environmental "problem", why would anyone advance them money without any security when the principals don't even control the site for the bubble to be built upon. It is not a "blind pool" seeking "give us the money and we'll find someplace" but a proposal specific site with its desirable market and highway location.. Thus, GameOn 365 hoped to attract monied persons who would be willing to "take a ride on the Reading Railroad, collect $200 for passing 'Go' and then land on 'Free Parking'..." but to do so first they need to secure the site -- hence the "presumption of a Lease" which was never executed.
Enter the October lawsuit which was a RESPONSE to an illegal action on the part of the Town Board (authorizing a lease). Unlike many actions by Feiner and his "team", this time they met well-heeled opposition willing to take them to Court, not unlike the deep pocket Fortress Bible Church lawsuit which will cause grievous harm to taxpayers. Thank Mr. Feiner, Mr. Sheehan and Ms. Juettner for this.
Likewise thank GameOn 365 for sponsoring the latest version of tea and sympathy but this croc has no tears to share.
Hal Samis