case on the calendar this morning is seven hundred seventy three and r p holdings versus city of buffalo good morning your honor may please the court nelson parole from the law firm of webster zani in buffalo new york and we certainly admit responsibility for bringing these buffalo temperatures to new york city this morning the  s we didn't leave the snow at home this time it's not out there but not down here are we at least accomplished that much i plan to focus my argument this morning on dots are three main points on this appeal one being the contract based claims that an r p has asserted against the city of buffalo and the buffalo urban renewal agency the second point i wish to address is the equal protection claim you know would point out briefly that the type two agreement claim the equal protection claim were both dismissed on rule twelve motion it's so if there's any color to those claims they should be reinstated and move forward and we think that's the case the last issue that i would plan to address this morning is the legislative immunity defense which was the basis for the district court's judgment dismissing the rico claim against the individuals which ended the rico claim completely and that was summary judgment that was on summary judgment but it was essentially at least in our view based on certainly a disputed factual record and i think was based on certain acts that the district court felt were significant but there's a whole series of acts concerning the wrongful conduct in this case that should have been considered before simply dismissing the rico claim based on legislative immunity so i would just point out just a couple of things about an r p this court should be aware of it's a nationally known company known for developing building and managing affordable housing projects utilizing both federal and state funding their primary source for federal funding is federal home funds which are project he was approached by the division of housing and community renewal commissioner deborah van an iran jane and what i think she had pointed out which i thought was significant is that an r p by that point two thousand nine had had built over five thousand homes for families of which ninety percent of them led to homeownership after the fifteen year rent to own period contrary to the stated reasons for why this project was killed and i think the only other fact i'll mention before moving to these legal points is that this was a twelve million dollars spent and let's remember the timing here this was in early two thousand and nine at the time of the great recession when business was not happening and here you had a company coming into the city of buffalo's east side willing to speak to engage in a twelve million dollar project that would result in fifty single family  family homes for very needy families since you're talking about background let me ask you you've made allegations of extortion did any criminal prosecution state or federal arise from the facts you have alleged that they  what extent would that matter to you or your civil claims i mean supposing that the other side too but supposing entirely hypothetical because i'm trying to understand the civil  may or some other way would that matter to your civil case and if so i would say your honor certainly if a federal criminal case produced that type of evidence it would be extremely significant to our case  on pretty much each of the claims that we've asserted certainly on the rico claim it would certainly provide useful levet ends concerning rico type conduct extortion would be the basis for the rico claims so if that was  a federal proceeding would be extremely useful in this case likewise an equal protection client i think if there was evidence developed that this project was killed do you or you have already said that your principal argument here you're narrowing  your focusing rico and i think it's helpful for us then for me then to be thinking about rico you know i think the issue on rico relevant to this case may be whether or not legislative immunity would apply regardless of whether or not a criminal puts ice and i guess i'm asking you know is is with the federal with the charges or or criminal charges and litigation with that affect the legislative i mean it would affect the merits but with respect to legislative immunity i think this quarter any court would still need to inquire whether or not the acts occurred within the legislative legislative immunity for so well it would be possible but i don't think that would be supported by the facts of this case and it may be that in the course of the criminal case the evidence developed with respect to the extortion would show what we think is important which is that the acts that led to the killing of these projects occurred outside of the legislative process for example it would involve meetings that took place between mayor brown and reverend stenhouse when the decision was made that he will no longer support the project that is the first act their results and in the killing of this project if that emerges in the criminal case that would be supportive of our argument that legislative immunity would not apply because that is not an act within the legislative process likewise as the facts emerged after that meeting when mayor brown met with you would have to show that that caused the failure the mayor's failure to the position that's been argued by the other side but there are a whole series of acts we're at that is the last act of a series of acts that resulted in the killing of this project the mayor could as the chief executive the mayor could have killed the project on his own he could have decided that after the commitment letter was issued and the promises were made back in february two thousand and eight any point along the way remember it was not until march of the following year or april of the following year where they got to the steps of introducing certain matters to the legislature any time in that continuum the mayor could have gone to an r p and said you know what yes we made these promises to the project but we no longer support it and had he done it and that man or the project would have been killed without any reference to a legislative process and those are the facts of the case and that's one of the reasons why legislative immunity should not apply in this case but that means precisely we have to ask why he took the action or feel to take the action that was contemplated fail to introduce the resolution it's precisely took place within a legislative process i think the answer is clear that the record is not sufficiently developed there were several depositions there were pending that were not allowed to go forward because of the timing of this the court granted a stay of discovery so they could issue the summary ruling we had key deposition set up for carla cause merrill who was integral it throughout this one and a half year process give an example of the kind of testimony you would have hoped to get that would have illustrated why summary judgment  wrong on legislative immunity and it with respect to that issue the facts will show and we already have there is facts in the record it's not like that we're waiting for these depositions to take place there are facts in the record that show that the mayor in the key fact is not the introduction of legislation the key fact is the withdrawing of support once that support is withdrawn the project is effectively killed and the entire investment is lost what what reef what is the withdrawal of support i thought we really focused on here that he did not take the action of in reducing the resolution for approval by the city council and absent that you can't have affective contracts  very same argument was made in the goodstein case which is the new york court of appeals case that we rely upon the idea that final that approval of a final agreement require the action of an agency and therefore the bad faith conduct leading to that was irrelevant when did you enter into that to agree that would be based on the commitment letter that was issued in february of two thousand and eight with was maker letter the wan that is correct or in your client became a party well arclight became a party because an r p is part of the development team the contract is is that the want to make or letter is very clear that issued to the development team in may three very clear promises which are the only promises required by the development team your client is not direct as in your client after except that you can make three promises and i be delighted if you did and it was legal but i would have for it to become a contract i would have to say sign here and it is going to do and i'm just asking what what turn this into one of my letters  what turned them into a contract that was binding on both sides even if it be it i think the best and the answer is yes and best evidence of that is mayor brown's own testimony his deposition was taken in this case and  very clearly testified that based on the wanamaker letter not only did it create obligations on the city to to move forward with the project but it created obligations on the part of an r p to move forward with the project it involved the hiring response to the offer to the actions taken are evidence that both sides believed that that cut that letter that commitment letter create a binding obligations on both sides he looked to industry practice affordable housing projects of this type those are precisely the types of promises and agreements that bind the municipality and the developer to move forward for each of them to do the things that are necessary but  other and other governmental approvals and anyone dealing with municipality knows that you deal at your at your peril because at the end of the dress by the new york court of appeals in the goodstein construction case one of the defenses that was raised in this was a claim against the city of new york based on actions taken by the housing preservation department and one of the arguments they made because they entered into an alleged agreement that required both sides to move forward to get to the point of having a land development agreement to move forward with an urban renewal project and one of the arguments that was made apparently to the court of appeals because it's prominent in the decision by the housing and preservation department was that only the board of estimate was authorized to finally approve the land development agreement and convey the si the new york court of appeals held in that case was that well that may affect the damages sought with respect to if the project went to final completion the profits for example that may have been or but it does not insulate the city or the housing preservation department from buck a set of conduct that is in bad faith and the court expressly stated that there are pam it is asserted that involved the costs incurred before the project was killed due to the bad faith conduct so i'm confused because i've seen new york case law basically saying you can't assert promissory estoppel against municipalities and get money damages that where there's a contracting process and as there is here you know the charter says that contracts creating municipal liability have to have certain characteristics that we execute in a certain way that if they're not executed in that way that's the only source of a potential source of liability and you can't say well they made promises and made expenditures in reliance on those promises so compensate us for our reliance how do you i'm looking at man's construction and a number of other relatively recent decisions in your cabinet why are those wrong or it are they not apply for some reason why i think your honor i would first try to answer to them one way i would try to make the point that there are two contract based claims in this case one is based on a type two contract and the goodstein construction case no question about it was addressing a type two agreement and in that case dealing with a type two agreement the court found that those types of damages are recoverable against a municipality raise the question of whether or not your damages can extend to the profits you expected at the end of the day at because there was requirements of further approval now promissory estoppel as as judge scrutiny found assumed that the type that the claim for a type two agreement was you can't have both quote promissory estoppel as a quasi contract doctrine it would apply in the absence of a written contract but we think the principles are fundamentally the same is that a municipality can't go ahead and make these kinds of promises is that before us is that it's a tie to correct your honor we did the the the our first claim in our complaint was that there was a type two contract that was dismissed in judge gretton his first decision on a motion to dismiss and so we've but again what made it a contract was that there was a writing making promises but then you acted in reliance on those promises except as that's your form with exceptions is that right i mean it could this come backs to judge saxon original question was was this doesn't look like a contract was an executed by your client and there's no obvious consideration stated on the want to make a letter well the consideration is is based on and on the testimony in this case that mayor brown firmly believed that that letter speaking directly to that letter that it did create obligations on the part of an r p to move forward w and if you look to industry practice and performance of the parties both parties acted as if that letter that agreement imposed obligations on both sides can't tell what the obligations are because it describes not with regard to  the obligations are to move forward with all the steps required for affordable housing project which from that letter it and it involved moving forward to get tax credits from the state involve all the kinds of planning  environmental reviews and everything else that needs to happen for that to go forward you have two minutes rebuttal thank you ok thank you we'll hear from mr brady for the city buffalo your honour's michael brady behalf of the mayor of the city of buffalo mayor brown former councilman smith and the city itself and with me today is my son dan who's also representing the same parties with me obviously judge first question is where do i start and i think i'd like to start to the question about whether in fact there was any criminal prosecution that occurred and if you look at the s amended complaint which dates back to two thousand and twelve six years ago there is an allegation that the u s attorney's office or a federal grand jury i forget exactly how they put it was it looking into this matter i don't know what basis that is stated but we are now nine years after the events we've talked about and from my memory in a former life as no usa i think we're long past any statute of limitations so i don't think there's any indication that we're going to have a criminal prosecution here secondly if we did judge sac i think asked would it make any difference and i think the answer is no one way or another because if case in the chapell case each of those involved either allegations of bribery or actual it mid bribery and the courts uniformly held i think was the ni submission of a resolution to the council or failure to submit the resolution of the council was it seems to me that there's a decent argument that that was really an administrative matter more like kind of as zoning decision all of the negotiation the work the development the project so many different parties involved all that work had been done this was just the cap on the development of the project and what he just had to do in there was evidence i gather that the council never rejected a proposed resolution of this sort so that makes it sound like an administrative matter what why was this legislative but for i think for two reasons judge and that's kind of the argument that an r p makes that the common council approval was well as his testimony under the general obligations law fifty eight hearing in advance of the of the lawsuit he acknowledged in in may two thousand and nine issues arose about what the city supposedly wanted with regard to this project he came to buffalo and he met with the common council president he met with the common council majority leader and he met with my client councilman smith to lobby them to support this project and admitted that no guarantees were given so first of all it's not perform and secondly under the law i think if the court looks at the yele del case and this court's opinion endorsed set i think both would suggest that a decision of an executive whether or not to submit something to a governmental body such as here the common council is quintessential legislative activity and so it's in no way administratively and the judge carney you you asked about isn't the issue isn't the question whether or not mayor brown elected to move forward or not by submitting these issues to the council and that that was that that's admitted in the in this record we submitted our statement of supported among country myrtle facts which said the mayor elected as he states in his affidavit not to submit to the council resolution for the sale of city owned property which had to be approved by the the council he'll act did not to submit to the council the payment in lieu of taxes agreement which has to be approved by the council as well as the early county legislature and in response and r p admitted those are uncontrovertible facts what they added was but the but the mayor did that for an on on a wrongful reason and that's where we get into legislative immunity that his his reason for doing that cannot be looked into so putting aside they the doctrine here if we were to take all these facts is true and i understand these allegations is true and i understand they controverted in part and or maybe in whole what what's a developer to do when you need to invest up to a million dollars to do a public housing project and you would lie on the good faith of all your partners the federal and state and so on do they just take the risk that's just a business risk and if it doesn't come through for some potentially unlawful reason so it goes or do they have any civil remedy they don't have a remedy judge and it's interesting if you if the court looks at the time period of february two thousand and eight the wanamaker letter that they rely on as their alleged type to contract is one letter it's two pages it's dated both february twenty five and forward twenty six two thousand and eight for whatever reason they ignore contemporary letters from mr wan few days before and on february twenty sixth two thousand and eight which set forth in varying conditions but you compare those letters which are not addressed to n r pete their address to belmont the actual developer of the project compare those letters which are not addressed to an r p which don't ask for a counter signatory which don't ask for any anything out of an r p set forth no obligation set forth no limits the number use the word agreement in which their own clause their own person mr patro to admitted this letter of february twenty five two thousand and eight for mr want to make her was for it was for the purpose of it was so that we and our p could go and try and get tax credits this was the purpose of the letter not a he says he even testified i don't know if i would call it a contract compare those to the agreements also contemporary dated february twenty one two thousand and eight within days between an r p and belmont the developer were turret in the record at thirteen seventeen and thirteen forty two those detailed agreements which among other things put an end r p the obligation to obtain all governmental approvals and address specifically what will happen what will happen if this project doesn't go forward and they until they recognize that it might not go forward and they had a defined approach to it and  p will pay seventy five percent of the upfront costs and belmont will kick in twenty five percent so they come to you and say that a letter and forward twenty five which do not even address the boma was a in agreement ignored the fact that in their own agreements which they show they know how to do an agreement it's four and five pages long details their relationship whether their partners whether they're not who incurs war costs and it just the breach of the type two agreement here under the standards of this court and under new york watt that says when you have statutory procedures you must follow the awful city charter and sullivan good morning my name is richard sullivan and i represent the city of buffalo urban renewal agency i must admit that i thought i had my head around my argument this morning and was prepared until i heard the arguments of counsel in response to contract theory i think that's what he said that's what he's focusing on here but i think he said that they played in the i'll turn in and that's that's the point that i want to make judge the promissory estoppel claim is primarily against me i don't think they pursued it in their excuse me the contract claim in their brief against me it's primarily promissory estoppel the point i want to make is that this so called commitment letter is not a commitment letter at all this is a letter written by another agency of the city of buffalo wasn't written by my client your it is written to a entity that is not a party to this the rights under that letter and i put rights and quote it's were allegedly later assigned from belmont to an r p in the assignments of the record without ever mentioning a potential claim for these reasons we're all familiar it's in the brief it's been briefed as to what the elements of promissory estoppel are can a promissory estoppel claim be asserted against the municipality i don't believe so for the reasons that i think judge that you were concentrating on but let's concentrate on what is a stablished in the record and this is clearly a record that was entirely appropriate for summary judgment every time someone judgment they say well there's more depositions to be taken we have to do this we have to do that we had years and years of litigation we've had documents exchanged and we focused on the key documents to the case which are apparently this letter in february of two thousand and eight what is undisputed in the record from my client's point of view never challenged by the plaintiff mr billman the chief counsel to the urban renewal agency said ok there are three statements in that letter two of them have absolutely nothing to do with pure euro wouldn't be involved in the transfer of the property you're a wouldn't be involved in the pilot agreement that's not what we do the third one was the provision of functions judge scrutiny found correctly is entirely contingent on a number of factors that have to happen down the road so if you are alleging a promissory estoppel claim against us based upon those three representations the only one undisputed in the record that could possibly apply to your is entirely contingent and you can't have a promissory estoppel claim where there are contingency our fourth department several years ago in a case that i happen to argue for to poverty in that city in jamestown case said exactly the same thing under exactly the same circumstances involving what back then was referred to as a you dig urban development action granted there is no promissory estoppel claim against pure there's clearly no contract claim against pure and judge scrutiny got it after three times to do exactly right as it relates to my client thank you so one comment by mr sullivan having to do with whether or not the letter was a commitment letter if this panel reads the commitment letter it will see that in there mr wannamaker says this commitment letter it's right there in the letter the reason why bureau was named as a party in this case was based on the city of buffalo's argument that the obligations that were created where those would be urged not by the city and so  pleading in the alternative because we do think beer was acting in this regard as the agent for the city of buffalo we played claims in the alternative as to the city in beer and that's why peer was named in this case i do want to move to the  i read through the study this record i was a little bit unsure but maybe you can help me on this what if you're in game here are you seeking a judgment a money judgment that will reimburse you for the co you sunk into trying to get this project done the that interesting your honor the goodstein case says you're entitled to that in this case it's five hundred thousand dollars there was a lot of money spent to get this project for me to see which is pretty typical for a project of this type so certainly they're looking to recover that if if the reason for the activities here were wrongful extortion if we are able to prove that we are entitled to treble damages under rico against the individuals not against the municipality in the event this court does reinstate the equal protection claim which we think it  should that again we're entitled at a minimum to those damages now the new york court of appeals and goodstein in analyzing that situation recognize that the goodstein construction also asked for the damages or the profits it would have made if the project went to completion and the court question but did not firmly decide that no under no circumstances are you not entitled to those profits in a situation like this so we would consider that to be an open issue but at a minimum i think we're entitled to this cost that were sunk before this project was killed correct now i do want to point out two to two points quickly on the administrative point which your honor had raised one is i think the test under rolland is whether or not the conduct singles out a specific individual or is creating general policy that you would expect from legislation i think there's no question that even if we soon that the only wrongful acts here that should be consider are the failure to introduce the pilot agreement and land transfer that that was directly focused on a single individual there was no general policy in play there's nothing in the record that supports that to the contrary there's no question that this would have been an unmitigated good for the city of buffalo there is no dispute about that this is vacant property worth zero there's a memo in the file that carla cause more created that kind of judgment is for the legislature and the elected officials to determine minute it's up to your client we believe that but i have a little difficulty accepting that as a kind of matter of fact given to me there are allegations about why the decision was made but this is a complicated project involving federal and state funding as well as municipal commitments by you're trying to imply that it was so clearly the right thing to do for buffalo that any company should be compensated for having committed to it and the project into not going forward this is that is that right my understanding is right that's our client's position your honor we think the evidence that's been generated date to date supports that argument we recognize that the other side takes a different position on that with there's no evidence that's been presented to that effect we know that the mayor's reasons for killing the project were contrived that there was no basis for an objection to scattered site or rent to own whatsoever so we think the facts that have been developed so far but your point highlights that there's questions of fact that go to that kind of question as to whether or not legislative immunity would apply for example and i think the rollin court found that there were questions of fact and actually remained in that case for fact finding to determine whether or not it was substantive or administrative on the for those reasons as well i just want to one final point if i may on equal protection and i think it's kind of interesting that the legislative immunity defense is based on legislative acts and yet the decision to dismiss the equal protection claim was based on authority that administrative decisions at the executive level such as hiring and firing an employee ye are the kinds of acts that we do not want to subject municipalities to equal protection claims she can't have it both ways it's either administrative in one sense all together or it's not and we think it's neither just an equal protection i think that we have that there are certainly facts in the record to show that we were treated differently from the developer and he cited one in packard and i think that should be reinstated thank you very much well argued will take the matter under the eyes men i think that clues our calendar today we have we have one more matter on for argument but i don't believe the apple at is here is that correct and would you like to be heard  objection to you know proceeding without the argument taking it on submission very good will take it at submission thank you will take the matter on submission the clerk will turn court